CHIEF KINGS IRIRI v. THE STATE
(2018)LCN/11997(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of July, 2018
CA/B/192CD/2014
RATIO
EVIDENCE: TO PROVE THE COMMISSION OF A CRIME
“It is trite law that in criminal prosecution, the required standard is that of proof beyond reasonable doubt. The burden on the prosecution in a criminal trial has been succinctly enshrined in Section 135 (1) of the Evidence Act 2011 which provides as follows:-
‘If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.’ Although, it is trite that proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt.
When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:– DIBIE VS STATE (Supra); – JULIUS ABIRIFON VS THE STATE (Supra); – ADIO VS THE STATE (Supra); – ITU VS STATE (Supra).
The guilt of an accused person can be proved through any of the following methods:-
(a) Through confessional statement of the accused, or
(b) Through circumstantial evidence, or
(c) Through the testimony of an eyewitness or eyewitnesses.
See the following cases:-
– IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100;
– OGBA VS STATE (Supra); – EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666; – NWOSU VS THE STATE (Supra); – ITU VS STATE (Supra); – IDOWU VS STATE (Supra).” PER JIMI OLUKAYODE BADA, J.C.A.
DEFENCE: BURDEN TO PROVE THE DEFENCE OF ALIBI
“The defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere, other than the scene of the crime and could not consequently have been involved in the commission of the crime with which he is charged. The burden is on the prosecution to investigate and disprove the Alibi. The failure to investigate and check the reliability of the Alibi would raise reasonable doubt in the mind of the Court or Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. See the case of:- SHEHU VS THE STATE (2010) All FWLR Part 523 Page 1841. But where the prosecution is able to show that the accused person was at the scene of crime when the offence was committed by an unquestionable evidence then the defence of Alibi will not avail him. See EGWUMI VS STATE (2013) 13 NWLR Part 1372 Page 525.” PER JIMI OLUKAYODE BADA, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“On the offence of conspiracy, the Learned Counsel for the Respondent relied on the case of:- OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 – 40, where it was stated that conspiracy, as an offence, is the agreement of two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove the act that has been committed. Because of the nature of the offence of conspiracy, it is rarely or seldomly proved by direct evidence but by circumstantial evidence and inference from certain proved act. He also relied on the case of:- PATRICK NJOVENS VS THE STATE (1973) 5 SC Page 17.” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
CHIEF KINGS IRIRI Appellant(s)
AND
THE STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Judgment of Delta State High Court of Justice, Orerokpe, delivered on the 18th day of December 2013 in Charge No – HOR/3C/2012 – Between : THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI. The Appellant was found guilty and convicted for the offences of conspiracy to commit murder and murder of one JONATHAN AKPOME and sentenced to five years imprisonment and death by hanging respectively.
Briefly, the facts of the case are that the Appellant who was the 8th accused at the lower Court was charged together with seven other persons for the offence of conspiracy to commit murder and murder.
In proof of its case, the prosecution called witnesses and tendered in evidence a total of twenty-one exhibits. The 3rd, 5th, 7th and 8th accused persons each gave evidence did not call any witness to testify on their behalf.
The 1st, 2nd 4th and 6th accused persons did not enter their defence and did not call any witness in support of their case. They rested their cases on the case of the prosecution. By consent, Counsel to the accused persons and the prosecution filed and adopted their written addresses.
At the conclusion of hearing, in a Judgment delivered on 18/12/2013, the 1st, 2nd and 4th accused persons were discharged and acquitted, while the 3rd, 5th, 6th, 7th and 8th accused persons were convicted and sentenced to five years imprisonment for conspiracy to commit murder and death by hanging for the offence of murder.
The Appellant, who is dissatisfied with the Judgment of the lower Court, appealed to this Court.
The Learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are set out as follows:-
(1) Was the learned trial Judge right to convict the Appellant who (a) timeously set up the defence of Alibi which the investigating police did not investigate and;
(b) the trial Judge did not consider. (Distilled from Ground 2 of the Amended Notice of Appeal).
(2) Was the learned trial Judge right in law in convicting Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal).
On the other hand, the Learned Counsel for the Respondent also formulated two issues for the determination of the appeal. The issues are set out as follows:-
(1) Whether the learned trial Judge was right in law when she held that the Respondent proved the offence of conspiracy to murder and murder against the Appellant beyond reasonable doubt.
(2) Whether the learned trial Judge erred in law when she held that the defence of Alibi did not avail the Appellant in this case.
At the hearing of the appeal on 22/5/2018, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 18/12/2013. The amended notice of appeal was filed on 8/12/16 and it was deemed as properly filed on 25/4/17. The Appellant’s Brief of Argument was filed on 6/6/17 and the Appellants Reply Brief of Argument was filed on 20/11/17, it was deemed as properly filed on 22/5/18.
The Learned Counsel for the Appellant adopted and relied on Appellant’s brief of argument as well as the Appellant’s Reply Brief of Argument, as his argument in urging that the appeal be allowed and the Accused/Appellant set free.
The Learned Counsel for the Respondent also referred to the Respondent’s Brief of Argument filed on 30/10/17 but deemed as properly filed on 22/5/2018.
He adopted and relied on the said Respondent’s Brief of Argument as his argument in urging that the appeal be dismissed.
I have carefully examined the issues formulated for the determination of this appeal by Counsel for the parties. The issues are more or less the same. I will therefore rely on the issues formulated for the determination of the appeal on behalf of the Appellant.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
Was the learned trial Judge right to convict the Appellant who:
(a) timeously set up the defence of Alibi which the investigating police did not investigate; and
(b) the trial Judge did not consider. (Distilled from Ground 2 of the Amended Notice of Appeal).
The Learned Counsel for the Appellant submitted that once an accused at the earliest opportunity set up the defence of Alibi, it becomes the duty of the prosecution to investigate the Alibi, and disprove it before the guilt of the accused person can be said to have been proved beyond reasonable doubt. He relied on the case of:- SHEHU VS THE STATE (2010) All FWLR Part 523 Page 1841.
He contended that the Appellant who was the 8th accused person at the trial Court, put up the defence of Alibi in his statement to the police when he was arrested, but that the Alibi raised was not investigated by the police and no explanation was given for the prosecution’s failure to investigate the Alibi.
It was stated that as at May 2011, when the incident occurred, the Appellant was not a suspect. He was arrested only in September, 2011 where a relation of the deceased pointed at him at the Orerokpe Police Station where he had gone as an elder in the community.
The Learned Counsel for the Appellant referred to the Appellant’s statement to the police which he said shows that he was at Oviri Court at the time of the fight at Okwidiemo Village. He submitted that when an accused person raises a defence of Alibi, it is the duty of the prosecution to investigate it. He relied on the following cases:
– SHEHU VS THE STATE (Supra);
– DOGO VS THE STATE (2001) FWLR Part 39 at Page 1388;
– OYEBOLA VS THE STATE (2008) All FWLR Part 402 Page 1175 at 1184 paragraphs E – F.
He submitted that the failure of the trial Court to consider and decide on the defence of Alibi raised by the Appellant occasioned a miscarriage of justice and amounts to a denial of the Appellant’s right to fair hearing. He urged that his conviction be quashed.
In his response to the submission of Learned Counsel for the Appellant, the Learned Counsel for the Respondent submitted that Alibi means elsewhere. When an accused raises the defence of Alibi, he is saying that he was not at the scene of crime when the crime was committed. He went further that by raising the defence of Alibi, the accused person is not seeking to prove his innocence but to raise a doubt as to what might otherwise have been foolproof case by the prosecution. It was submitted on behalf of the Respondent that an accused person who raises the defence of Alibi is expected to ?
(a) Raise the Alibi at the earliest opportunity in most cases in his extra-judicial statement to the police.
(b) He is expected to name the persons who were with him at the particular time the incident took place. If the prosecution pins him to the scene of crime, he is expected to call his witnesses that were with him to give evidence in support of his case.
(c) The law expects him to be specific as to where he was when the incident took place. He relied on the following cases:-
– BALOGUN VS A.G. OGUN STATE (2001) 94 LRCN Page 277;
– NJOVENS VS STATE (1998) ALCR Page 264;
– ODOBERE VS STATE (2001) FWLR Part 159 Page 1244;
– ESANGBEDO VS STATE (1998) 1 ACLR Page 109.
It was argued on behalf of the Respondent that the incident which led to the murder of Jonathan Akpome which took place on the 17th day of May, 2011 and the prosecution witnesses pinned the Appellant to the scene of crime.
It was also submitted that it would not be necessary to conduct an identification parade where there is circumstantial evidence showing the involvement of an accused person in the commission of the offence. Learned Counsel relied on the following cases:-
– IKEMSON VS THE STATE (1989) 3 NWLR Part 110 Page 455;
– EBENEHI VS THE STATE (2008) 10 NWLR Part 1096 at Page 596 at 607 Paragraphs G – H;
– BALOGUN VS BALOGUN (Supra).
The Learned Counsel for the Respondent urged this Court to discountenance the submission of Counsel for the Appellant and affirm the findings of the trial Court.
The Learned Counsel for the Appellant, in the Appellant’s Reply Brief of Argument, reiterated his earlier submission and contended further that neither the Respondent nor the Judge averted to the Alibi raised in the Appellant’s statement to the police. He submitted that it is the duty of the trial Judge to consider all the defences made by an accused person, no matter how weak, spurious and stupid it might appear.
It was submitted on behalf of the Appellant, that the failure of the prosecution to investigate the Alibi and failure of the Court to consider the defence of Alibi is crucial to this case. Also, it was contended that the evidence on which the Appellant was convicted was inconsistent and contradictory and the evidence of prosecution witnesses were not properly evaluated by the trial Court therefore that the Appellant is entitled to an acquittal.
Learned Counsel for the Appellant relied on the case of:- ONUCHUKWU VS STATE (1998) 4 NWLR Part 547 Page 576 at 592.
He finally urged that this appeal be allowed.
RESOLUTION
The defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere, other than the scene of the crime and could not consequently have been involved in the commission of the crime with which he is charged.
The burden is on the prosecution to investigate and disprove the Alibi. The failure to investigate and check the reliability of the Alibi would raise reasonable doubt in the mind of the Court or Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement.
See the case of:- SHEHU VS THE STATE (2010) All FWLR Part 523 Page 1841.
But where the prosecution is able to show that the accused person was at the scene of crime when the offence was committed by an unquestionable evidence then the defence of Alibi will not avail him. See EGWUMI VS STATE (2013) 13 NWLR Part 1372 Page 525.
In this appeal under consideration, the Appellant was the 8th accused person at the lower Court. He was charged along with seven others on a two count information of conspiracy and murder alleged to have been committed on the 17th day of May, 2011 at Okwidiemo Town.
As at May, 2011 when the incident occurred, the Appellant was not a suspect. He was arrested only in September 2011 when a relation of the deceased pointed at him at the Orerokpe Police Station where he had gone as an elder in the community.
The Appellant made two statements to the police on his arrest in September 2011. The statements were received in evidence as Exhibits ‘N’ and ‘N1’. (See pages 55 – 60 of the Record of Appeal).
In his statement dated 3rd September 2011, the Appellant stated as follows:-
”I also have a house at Oviri Court along Warri Sapele Road. On 17/5/2011, I was in my house at Oviri Court when at about between 10am and 11am, I heard noise outside and people were running. Okada riders were also running and people were saying ‘dem dey fight oh, dem dey fight for Okwidiemo o’.
So I came out and stood in front of my house and called the Area Commander on phone. He told me to go to the nearest police checkpoint and give the phone to Inspector Mogaji, the most Senior Policeman there. Inspector Mogaji communicated with the Area Commander with my phone 080520 The Area Commander instructed Inspector Mogaji to go with me to Okwidiemo. I entered their vehicle, a pick-up van with tainted glasses with so many other policemen and headed towards Okwidiemo. Along the road, the DPO, Ekpan called and said that the Area Commander called him and said I will give him my phone nos, asked me to call him. I replied him that I was in the police van on our way to the village Okwidiemo.” (See pages 55 to 56 of the Record of Appeal).
A careful reading of the Appellant’s statement to police set out above shows that he was at Oviri Court at the time of the fight at Okwidiemo Village. He named the Area Commander, the DPO and Inspector Mogaji with certainty as the persons around at the time he contacted the Police Area Commander who directed him to a checkpoint.
He said that the Area Commander communicated with Inspector Mogaji with his phone and directed that they should go with the Appellant to Okwidiemo Village.
The defence of the accused person i.e. the Appellant that he was not at the scene of crime at the time of the criminal conduct is a good and valid defence.
(a) From the statement set out above the Appellant stated clearly that at the time of the fight in Okwidiemo he was in his house at Oviri Court.
The police did not investigate whether the Appellant has a house at Oviri Court or that the Appellant was in his Oviri Court house at the relevant time.
(b) The Appellant stated that he communicated with the Police Area Commander and gave his telephone numbers.
The police investigators did not give evidence that they contacted the Area Commander. They did not deny that they had and used the Appellant’s telephone in the communication with the police Area Commander as the Appellant stated in the statement.
(c) The Appellant stated that on the directive of the Area Commander he went to the nearest checkpoint and met Inspector Mogaji who spoke with the Area Commander with the Appellant’s telephone and received instruction to proceed to Okwidiemo with Appellant.
The prosecution did not investigate whether the accused person was at the checkpoint or whether there was Inspector Mogaji at the checkpoint at the time of the incidence. Throughout the trial, no prosecution witness gave evidence disputing the statement of the Appellant set out earlier in this Judgment.
The Learned Counsel for the Respondent merely referred to the findings of the learned trial Judge when she stated that she did not believe the defence of Alibi put up by the Appellant.
He also contended that the Appellant was pinned down by the prosecution witnesses at the scene of crime.
The question to be asked is, is it the contradictory evidence of the prosecution witnesses that was relied upon in convicting the Appellant? I will shed more light on this in the consideration of Issue No. 2.
When an accused raises a defence of Alibi as the Appellant did in this case, it is the duty of the prosecution to investigate it. In the case of SHEHU VS THE STATE (Supra) at 1859 paragraphs G ? H, the Supreme Court held among others that:-
‘It is a cardinal principle of law that no claim of Alibi should be disregarded by the prosecution without a check.’
Also in DOGO VS STATE (2001) FWLR Part 39 at 1388, it was also held among others that:-
‘It must always be remembered that a plea of Alibi, must not only be investigated by the prosecution, it is evident that in the instant appeal, the Appellants set up their defence of Alibi as soon as they were arrested. But it is on record that this defence was not investigated in respect of the 4th and 5th Appellants In this regard, it must be borne in mind that where an accused sets up an Alibi, the onus lies on the prosecution to prove beyond reasonable doubt that the accused was at the scene of the offence as alleged.’
The consequences of the failure of the prosecution to investigate the defence of alibi put up by the Appellant in this case entitled him to an order of acquittal.
I am fortified in my view above by the decision of the Supreme Court in SHEHU VS THE STATE (Supra) where it was held that:-
“Whenever an accused puts up a plea of Alibi, it is his duty to furnish the prosecution with full particulars of the Alibi. He must furnish his whereabout and those present with him at the material time of the incidence. It is the duty of the prosecution to investigate same carefully. The prosecution has the duty to disprove same. Failure to investigate invariably leads to the acquittal of the accused person.
It is extant in the record of appeal that the Appellant promptly made a plea of Alibi to the police. He said he was in his house throughout on the fateful day in company of his wife except when he went to see his Lawyer between 12.00noon and 12.30pm. The police should have made a careful investigation from the other inmates of the accused abode his wife inconclusive. The police failed to carry out this salient duty. Failure in this regard is detrimental to the prosecution’s case. On this score, the Appellant is entitled to an order of acquittal.
In this appeal, the Appellant, having stated his whereabout and the persons he was with at the time the offence was allegedly committed, the Appellant had properly set up the defence of Alibi. There was no explanation as to why the prosecution did not investigate the alibi set up by the Appellant. The prosecution’s failure to investigate the alibi amounts to a failure to prove the case beyond reasonable doubt against the Appellant.
A careful reading of the Judgment of the lower Court would reveal that the learned trial Judge, after listening to the prosecution witnesses, concluded that she did not believe the Alibi of the Appellant without actually giving it a sobre consideration. A defence raised by an accused person, no matter how stupid it may appear, must be considered and determined by the trial Judge.
Where, as in this case, the trial Court failed to give a sobre consideration and decide on the defence of alibi raised by the Appellant, such failure occasioned a miscarriage of justice and it amounts to a denial of Appellant’s right to fair hearing and as such, this Court has a Constitutional obligation to nullify the proceeding and the decisions arising therefrom.
See the following cases:-
– IBRAHIM VS STATE (1991) 4 NWLR Part 186 Page 309;
– ONAFOWOKAN VS STATE (1987) 3 NWLR Part 61 Page 538;
– UKWUNNENYI VS STATE (1989) 4 NWLR Part 114 Page 131;
– BOZIN VS STATE (1985) 2 NWLR Part 8 Page 465;
– EBRE VS STATE (2001) 12 NWLR 728 Page 617.
In view of the foregoing, this issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2
Was the learned trial Judge right in law in convicting Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal).
The Learned Counsel for the Appellant submitted that the case presented by the prosecution did not warrant the Appellant’s conviction because the prosecution failed to prove his guilt beyond reasonable doubt as required by Section 135 of the Evidence Act.
He relied on the case of:- MCGREEVY VS DPP (1973) 1 All ELR Page 503 at 510.
It was submitted further on behalf of the Appellant that the Judgment of the lower Court is predicated on the learned trial Judge’s general reference to evidence of prosecution witnesses. Learned Counsel for the Appellant contended that the learned trial Judge should have identified with certainty the particular witness who gave the particular evidence relied upon for the Judgment.
It was also submitted on behalf of the Appellant that the evidence of the prosecution witnesses is made up of inconsistencies and contradictions which rendered their evidence as unreliable.
Reference was also made to the two boys allegedly beaten, tied and cut with cutlasses. It was contended on behalf of the Appellant that the two boys ought to have been called as witnesses because they are in the best position to tell the Court who beat them, tied and cut them with cutlasses.
It was stated that the consequence of the failure to call any of the two boys allegedly beaten up is that, had the prosecution called the two boys, their evidence would have been unfavourable to the prosecution’s case.
The Learned Counsel for the Appellant relied on the case of:- SUNDAY VS STATE (2010) All FWLR Part 548 at Page 874.
He contended that PW1, PW2, PW3, PW4 and PW5 did not give evidence that they were present when the boys were allegedly beaten up, tied up and or cut with cutlasses. Therefore that there was no evidence to support the purported assertion of the trial Judge.
It was finally submitted on behalf of the Appellant that the count of conspiracy to murder and murder was not proved against the Appellant and that it is unsafe to sustain a conviction predicated on the evidence of discredited witnesses and contradictory evidence in the prosecution’s case.
The Learned Counsel for the Respondent, in his response, submitted that the trial Court was right when it held that having regards to the evidence on record, the Respondent proved beyond reasonable doubt the offences of conspiracy to commit murder and murder against the Appellant. He went further that to succeed in any criminal case, the prosecution is expected to prove its case against the accused person beyond reasonable doubt. He relied on Section 135 of the Evidence Act 2011 and the following cases:-
– JULIUS ABIRIFON VS THE STATE (2013) LPELR 20807 (SC);
– ADIO VS THE STATE (1986) 5 S.C. Page 194 at Pages 219 – 220;
– ITU VS STATE (2016) 5 NWLR Part 1506 Page 443 at 465 – 466 paragraph H – B, Page 468 paragraphs A – B.
He also submitted that the prosecution can prove its case beyond reasonable doubt by any or combination of the following means:-
(a) By confession and admission of the accused;
(b) By direct evidence of eye witnesses and
(c) By circumstantial evidence.
He relied on the following cases:-
– OGBA VS STATE (1992) 2 NWLR Part 222 Page 146;
– OLADIPUPO VS STATE (1993) 3 NWLR Part 590 Page 253;
– EDAMINE VS STATE (1996) 3 NWLR Part 58 Page 530 at 531;
– OGUNZEE VS STATE (1998) 58 LRCN Page 3512 at 3551;
– EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666 at Page 683;
– OWHORUKE VS C.O.P. (2015) LRCN Part 245 at Page 35;
– JULIUS ABIRIFON VS THE STATE (Supra);
– ITU VS STATE (Supra).
On the offence of murder, the Learned Counsel for the Respondent submitted that the onus of proof is on the prosecution to establish by evidence the following facts beyond reasonable doubt:-
(a) The fact of death;
(b) Death within a year and a day of the act;
(c) The act or omission on the part of the accused directly causing death of the deceased; and
(d) The intent to kill or do grievous harm; or to do an act or make omission likely to endanger human life while pursuing an unlawful purpose.
He submitted further that the 4 conditions above must co-exist and where one of them is absent, the charge will fail. He relied on the following cases:-
– ITU VS STATE (Supra);
– OWORUKE VS C.O.P. (Supra);
– IDOWU VS STATE (2000) 80 LRCN Page 2788;
– OGBA VS THE STATE (Supra);
– NWOSU VS THE STATE (1986) 4 NWLR Part 35 Page 384.
On the offence of conspiracy, the Learned Counsel for the Respondent relied on the case of:- OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 – 40, where it was stated that conspiracy, as an offence, is the agreement of two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove the act that has been committed. Because of the nature of the offence of conspiracy, it is rarely or seldomly proved by direct evidence but by circumstantial evidence and inference from certain proved act. He also relied on the case of:- PATRICK NJOVENS VS THE STATE (1973) 5 SC Page 17.
He went further that for the prosecution to succeed in a charge of conspiracy, it has to prove (a) an agreement by two or more person to do an illegal act or legal act by illegal means.
(b) The proof is by direct evidence or circumstantial evidence or inference from certain proved criminal act.
The Learned Counsel for the Respondent submitted that in this case there is no direct evidence of conspiracy between the Appellant and others to commit the substantive offence. In convicting the Appellant, the learned trial Judge inferred conspiracy from the proved facts of murder.
It was also submitted on behalf of the Respondent that it was the act of the Appellant and his cohorts that caused the death of the deceased. And also that the prosecution witnesses particularly PW1, PW2, PW3, PW4 and PW5 in their evidence in chief gave an account of the part played by the Appellant in the assault on the deceased with lethal weapons that led to the bodily injury which resulted in the deceased death.
Learned Counsel for the Respondent referred to the evidence of PW7, a medical doctor, that the deceased was attacked with cutlass and axe and that this was corroborated by the evidence of PW2.
The evidence of PW1 and PW3 that the Appellant was at the scene of crime and that he ordered his boys to attack the deceased. He relied on Section 7 and 8 of the Criminal Code Cap C21 Volume 1 Laws of Delta State of Nigeria 2006, and the case of:-
– ALARAPE VS STATE (2001) 5 NWLR Part 705 Page 79;
– OYAKHIRE VS STATE (2006) 15 NWLR Part 1001 Page 157.
Learned Counsel for the Respondent also referred to the evidence of PW3 where it was stated that the Appellant was among the youth and elders of Okwediego community at the scene of crime on the 17th day of May 2011 i.e. the date the deceased was killed.
The learned trial Judge convicted the Appellant based upon the evidence of PW1, PW2, PW3, PW4 and PW5.
The Learned Counsel for the Respondent submitted that the finding of the trial Court is not perverse having been based on evidence of PW1 – PW5. He urged this Court to affirm the findings of the trial Court.
On the issue of conflict or contradiction in the evidence of a witness, the Learned Counsel for the Respondent submitted that for the contradiction to be fatal, they must be substantial and fundamental to the main issue in question before the Court.
He relied on the following cases:-
– AGBO VS STATE (2006) NWLR Part 977 Page 545;
– DIBIE VS STATE (2007) 3 SCNJ Page 160 at 170 – 178;
– OGIBU VS THE STATE (2007) 2 SCNJ at 334 – 335;
– AKPA VS THE STATE (2010) Vol. 8 LRCNCC Page 70.
Concerning the issue of whether PW1 – PW5 are tainted witnesses, the Learned Counsel for the Respondent submitted that the fact that the deceased is a blood relation of the Respondent’s witnesses does not make them tainted witnesses. He relied on the case of:-
– OMOTOLA VS STATE (2009) 7 NWLR Part 1139 Page 148 at 177 paragraphs C – D;
– ITU VS STATE (Supra).
He finally urged that this appeal be dismissed and the Judgment of the trial Court affirmed.
RESOLUTION
It is trite law that in criminal prosecution, the required standard is that of proof beyond reasonable doubt. The burden on the prosecution in a criminal trial has been succinctly enshrined in Section 135 (1) of the Evidence Act 2011 which provides as follows:-
‘If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.’
Although, it is trite that proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt.
When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
– DIBIE VS STATE (Supra);
– JULIUS ABIRIFON VS THE STATE (Supra);
– ADIO VS THE STATE (Supra);
– ITU VS STATE (Supra).
The guilt of an accused person can be proved through any of the following methods:-
(a) Through confessional statement of the accused, or
(b) Through circumstantial evidence, or
(c) Through the testimony of an eyewitness or eyewitnesses.
See the following cases:-
– IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100;
– OGBA VS STATE (Supra);
– EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666;
– NWOSU VS THE STATE (Supra);
– ITU VS STATE (Supra);
– IDOWU VS STATE (Supra).
The Appellant and the other accused persons were arraigned before the lower Court on 28th day of March, 2012 on two counts charge of Conspiracy to commit murder punishable under Section 324 of the Criminal Code Cap C21 Volume 1 Laws of Delta State of Nigeria 2006 and Murder punishable under Section 319 (1) of the Criminal Code Cap C21, Laws of Delta State of Nigeria 2006.
Conspiracy has been held in a number of decided cases to be an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. The two or more persons must be found to have combined in order to ground a conviction. See the following cases:-
– OBIAKOR VS THE STATE (Supra);
– SULE VS STATE (2009) 17 NWLR Part 1169 Page 33;
– YAKUBU VS THE STATE (2014) L.P.E.L.R 22401 (SC);
– GARBA VS C.O.P. (2007) 16 NWLR Part 1060 Page 378 at 400;
– PATRICK NJOVENS VS THE STATE (Supra).
– KAYODE VS THE STATE (2016) L.P.E.L.R 40028 (SC).
The ingredients of the offence of conspiracy are:-
– There must be an agreement between two or more persons to do an unlawful act.
– They must agree to do a lawful act by illegal means.
The main substance of the offence of Conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned.
In the case of murder, the ingredients of the offence of murder are:-
(a) That the death of the deceased occurred.
(b) That the death of the deceased was caused by the accused or accused persons on trial, and
(c) That it was the act or omission of the accused that caused the death of the deceased victim and such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
The ingredients mentioned above must co-exist, if any of them is missing, then the offence of murder cannot be said to have been proved hence, the prosecution cannot obtain conviction of murder against the accused person and the Court must exonerate him and acquit him of the offence of murder.
The prosecution always has the heavy task of proving its case or the aforementioned ingredients beyond reasonable doubt. That is the standard of proof short of which the prosecution shall fail.
See the following cases:-
– NWOSU VS THE STATE (Supra)
– OGBA VS STATE (Supra)
– NWAEZE VS STATE (1996) 3 NWLR Part 222 Page 164;
– GIRA VS STATE (1996) 2 NWLR Part 443 Page 375.
In this appeal, under consideration, the Appellant was convicted of murder which is a capital offence. The conviction for murder carries sentence of death without any option. Therefore care must be taken by the trial Judge in ensuring that the evidence produced by the prosecution unquestionably point to the guilt of the accused person.
It is appropriate at this point to look at the state of affairs in Okwidiemo town at the time of the crises which I think was a necessary background on which the learned trial Judge could have considered in determining the credibility of the prosecution witnesses in this case.
There was evidence before the learned trial Judge that Okwidiemo Community was divided between the deceased Jonathan Akpome and his group of supporters which included PW1 – PW5 is established. The bone of contention is the accusation against Jonathan Akpome the deceased and his group who were seen as armed robbers and kidnappers and those other members of the community who opposed them.
PW3 stated at page 203 of the record of appeal as follows:-
‘It is correct that before the 17th day of May, 2011, there has been a dispute between the deceased and Chief Smart Iriri and some of the youths. There are two factions in Okwudiemor, one supporting my husband and the other not supporting my husband the deceased.
Believe Oreh is not from Okwudiemor. He is a worker at the site. Victor Osieyor is from Okwudiemor. He is on the side of my husband, Maxwell Iriri is also on my husband side, PW1 is also on my husband’s side, PW2 is also on my husband’s side.
(See page 203 paragraphs 2 & 3 of the Record of Appeal)
In evaluating the evidence of the prosecution witnesses in this case, the learned trial Judge ought to have taken into consideration the fundamental division in the community. The fact that PW1 to PW5 are members of the gang led by the deceased ought to have been taken into account as the witnesses clearly have the interest of punishing their opponent in the community who regard their group as armed robbers and kidnappers.
At page 278 of the record, the learned trial Judge set out 10 items which she assumed to have been proved:-
(i) The deceased person Jonathan Akpome sent out his workers to buy bread and pure water.
(ii) The boys were beaten up and tied down by some community persons.
(iii) That Jonathan including PW1, PW2, PW3, PW4 and PW5 left to the place where the boys were tied down.
(iv) That the 3rd, 5th, 6th, 7th, and 8th accused persons were present at the scene.
(v) The boys Jonathan sent to buy bread were cut with cutlass and tied down.
(vi) The deceased asked Kings Iriri the 8th accused what the problem was and the 8th accused told Jonathan Akpome the deceased that it was him they were actually looking for.
(vii) That 8th accused person ordered his boys who were armed with cutlass, battle axe and gun to attack Jonathan Akpome.
(viii) That 3rd, 7th accused and others attacked Jonathan Akpome on the orders of the 8th accused person.
(ix) That the 8th accused called the police to say that they have killed an armed robber.
(x) That the 8th accused person and the police after Jonathan Akpome had been killed later on the same day came with a police vehicle to take away the valuable property of the deceased person.
The learned trial Judge as shall be seen later, did not show or state which eyewitness gave a particular evidence and he did not attempt to evaluate their evidence.
For example in items (i), (ii) and (v) above, the learned trial Judge asserted that the boys the deceased sent to buy bread were beaten up, tied up and cut with cutlass. This is not supported by admissible evidence on the record of appeal.
The two boys allegedly beaten, tied up and cut with cutlass who were in the best position to tell the Court who beat them, tied them and cut them with cutlasses were not called as witnesses and no explanation was given for their failure to give evidence.
The consequence of failure to call the two boys allegedly beaten up is that if the police had called them, their evidence would have been unfavourable to the prosecution’s case.
In SUNDAY VS STATE (2010) All FWLR Part 548 at Page 874, it was held that where an eyewitness ought to be called by the prosecution was not called, there is a presumption of withdrawing evidence against the prosecution as such evidence will be unfavourable to them. PW1, PW2, PW3, PW4, and PW5 did not give evidence that they were present when the boys were allegedly beaten up, tied up and cut with cutlasses. There was therefore no evidence to support the purported assertion of the trial Judge.
Furthermore, the record of appeal showed that the evidence of prosecution witnesses which the learned trial Judge relied upon is replete with inconsistencies and contradictions which rendered their evidence unreliable.
(a) Giving account as to what happened when PW1, PW2, PW3 and the deceased arrived at the alleged scene of crime, PW1 at page 191 of the record of appeal stated thus:-
‘As soon as Jonathan Akpome asked the 8th accused person why they had to hold his boys the 8th accused person told Jonathan that Jonathan is actually the person that they were looking for. The 8th accused person ordered his boys who had battle axe, cutlass and gun to attack Jonathan Akpome.’
The above evidence of PW1 that :
(i) That the deceased addressed a question to the Appellant.
(ii) That the Appellant responded that it was the deceased they were waiting for, and
(iii) That the Appellant ordered his boys to attack the deceased were contradicted by the testimony of other prosecution witnesses
(b) PW2 (the brother of the deceased) in his evidence on page 195 stated thus:-
When we met the boys tied down, my brother tried to asked the 8th accused what the matter was. It was there that Festus Egite ran from where he was and said ‘na him we even dey wait for. Wetin we still de waste time. Ediri come. Festus Egite now used cutlass to cut my brother Jonathan on his upper hand.’ (See page 195 paragraph 6 lines 1 – 4)
By the evidence of PW2, the 8th accused i.e. the Appellant did not respond to the deceased. According to him, it was another accused person who responded.
At page 198 PW2 Stated thus:-
It is correct when we got to the scene, my brother was asking the 8th accused what the problem was. The 8th accused was yet to answer my brother when the 3rd accused attacked my brother.?
By the evidence of PW2 ‘the order to attack’ the deceased did not come from the Appellant who also did not utter a word before the alleged attack. PW1?s evidence painted a picture of events totally different from that painted by PW2. These accounts cannot be reconciled.
(c) On her part, PW3, the wife of the deceased gave another totally different account of events from that given by PW1 and PW2 as stated in the above paragraph. At page 201 of the Record of Appeal, PW3 testified thus:-
‘On our way going, we did not know that the boys who held the persons that Jonathan sent on an errand were in ambush, before we could get to the scene some of the boys who held the workers came out from the bush and attacked us. Jonathan and some of the workers were in front whilst we were behind.
We were attacked with some weapons both cutlasses, gun, battle axe and etc. In the process of the attack, they put Jonathan on the ground and attacked him with matchet, whilst some of them were beating me and others. Some of the boys made attempt to rape me.’
In concluding her evidence, PW3 said:-
‘It is correct that the only thing that the 8th accused person did was to call the police and carry the body of the deceased and his property.
The PW3’s evidence is not consistent with above evidence of either PW1 or PW2 who claimed that the Appellant ordered the attack on the deceased or that he said anything at the time they arrived the scene.
(d) As for PW4, her evidence shows that the Appellant was not at the scene of the fight. At page 206, she stated thus:-
‘The 1st to 7th accused persons then called the 8th accused person and asked him to call the police to come and carry the deceased that they have killed.’
Under Cross-Examination at page 208, PW4 stated thus:-
‘At the scene, I heard the youths putting a call to 8th accused asking him what he was still doing that he was not yet there (at the scene) with them.’
The account given by PW4 conclusively showed that Appellant was not at the scene of crime.
The youths could not be putting such a call to the Appellant to come to the scene of the incident if he was already at the scene.
(e) In his own case, PW5, Victor Osienyo who claimed to have accompanied the deceased to Okwidiemor Community where the deceased boys were alleged to have been beaten up and tied up by the community youths.
His account of events when they arrived at the scene, was diametrically different from the account given by PW1, PW2, PW3 and PW4.
At page 210 of the record of appeal, PW5 stated thus:-
‘When we got there i.e Okwudiemor, at front of Benjamin Azigbo’s father’s house under the kola tree, Jonathan asked Benjamin Azigbo why he had to tie the boys that he sent to buy pure water. It was then I asked John Jafuwa the 1st accused why they should be asking a senior man like the deceased person (Jonathan Akpome) such questions. At that stage, they asked Jonathan to sit on the ground.
I challenged 1st accused and asked him if he does not have elders and why should he in the community ask his elder to sit on the ground. The 1st accused ask me if I thought that they were joking and before I knew it, the 1st accused used the flat side of the cutlass in his hand to hit me on my back. When the 1st accused used the cutlass on me, Jonathan Akpome then warned the 1st accused person.’
A careful reading of the evidence above, showed that asking the deceased to sit down is not consistent with the evidence of PW1 that anyone gave an order to attack the deceased in the manner stated by PW1 and PW2.
Even the above evidence of PW5, contradicts his statement to the police where he said in Exhibit ‘G’ made on 12/9/2011 that it was John who told Jonathan that it was he, Jonathan that they were looking for and that the person he accused of insulting Jonathan was the said John which was contrary to his reference to 3rd accused person in his evidence in Court.
The evidence of PW1, PW2, PW3, PW4 and PW5 relied upon by the learned trial Judge were contradictory as shown in this Judgment.
The evidence of PW4 as shown above is enough proof to show that the Appellant was not at the scene of the incident. A call could not have been put to Appellant to come to the scene of he was already at the scene.
The evidence of PW5 that the deceased addressed the question to Benjamin Azigbo (see page 212 of the record of Appeal) contradicted the evidence of PW1 and PW2 that the question was addressed to the Appellant.
I am of the firm view that with all these contradictions in the evidence given by PW1 to PW5, the learned trial Judge ought to have rejected the prosecution?s evidence as unreliable. His reliance on the contradictory evidence in coming to her decision is fatal to the Judgment delivered. Her findings predicated on inconsistent and contradictory evidence of prosecution witnesses are of no probative value to sustain the conviction for conspiracy and murder.
Furthermore, the learned trial Judge clearly identified the contradiction between Exhibit ‘E’ and the evidence of PW3. The PW3’s evidence contradicted her previous statement Exhibit ‘E’.
In the case of O. ONUBOGU VS THE STATE (1974) 9 – 10 SC and OKAFOR VS STATE (2006) All FWLR Part 398 at 719, the Court reiterated the established principle of law that where a witness has made previous statement inconsistent with the evidence given at trial, the Court should disregard the evidence as unreliable.
In conclusion, I am of the view that the count of conspiracy to murder and murder was not proved against the Appellant and it is not safe to sustain a conviction predicated on contradictory evidence in the prosecution’s case.
Furthermore, from the facts of this case, the PW3 testified among others that:-
‘It is correct that before the 17th day of May, 2011, there has been a dispute between the deceased and Chief Smart Iriri and some of the youths. There are two factions in Okwudiemor, one supporting my husband and the other not supporting my husband, the deceased.’
In evaluating the contradictory evidence of the prosecution in this case, the learned trial Judge ought to have taken into account this fundamental division in the Okwidiemor Community.
This is because in a country such as ours where there is so much inter-ethnic animosity and hatred for each other, the Court ought to be cautious in convicting an accused person unless there is some substantial evidence in support of allegation of crime against the accused. Moreso, that it has been established in this case that there is fundamental division in Okwidiemor Community.
This is because it is easy for an enemy to make a false allegation of murder or robbery against a citizen to keep him out of circulation.
This Issue No. 2 is therefore resolved in favour of the Appellant and against the Respondent.
In the result, with the resolution of the two issues in this appeal in favour of the Appellant and against the Respondent, it is my view that there is merit in this appeal and it is hereby allowed.
Consequent upon the foregoing, the Judgment of the lower Court in Charge No:- HOR/3C/2012 between – THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI (i.e. Appellant) delivered on the 18th day of December, 2013 is hereby set aside as far as Chief Kings Iriri (the Appellant) is concerned.
In its place, the Appellant i.e. Chief Kings Iriri is hereby discharged and acquitted.
Appeal allowed.
PHILOMENA MBUA EKPE, J.C.A.: I was opportune to peruse the draft judgment of my learned brother J. O. BADA, JCA.
My Lord meticulously dealt with the two issues canvassed by the parties for the determination of this appeal and I am totally in agreement with the reasoning and conclusions reached therein. Without much ado, I am of the opinion that the two issues are resolved in favour of the Appellant as against the Respondent.
Consequently therefore, the judgment of the lower Court in Charge No. HOR/3c/2012 ? Between: THE STATE VS. (1) JOHN JAFUWA (2) JOSIAH OMAYERVE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (i.e. Appellant) (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI, delivered on the 18th day of December, 2013 is hereby set aside.
In its place, the Appellant i.e. CHIEF KINGS IRIRI is hereby discharged and acquitted.
I too allowed the appeal.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, JIMI OLUKAYODE BADA, JCA, made available to me a draft copy of the judgment just delivered.
I am in agreement with his conclusion that the appeal is meritorious and should be allowed.
I allow the appeal, set aside the judgment of the trial Court in charge No: HOR/3C/2012 delivered on 18 December, 2013 and quash the conviction and sentence therein and discharge and acquit the Appellant.
Appearances:
CHIEF T.J. OKPOKO, SAN with him, I.O. OSOBE, ESQ. and N.E. DOZIE, ESQ.For Appellant(s)
MR. PETER MRAKPOR Attorney-General and Commissioner for Justice, Delta State with him, O.F. ENENMO, ESQ. Director, Appeals Department, Ministry of Justice, Delta State and C.O. AGBAGWU Assistant Director, Appeals Department, Ministry of Justice, Delta StateFor Respondent(s)
