CHIMAOBI ONYEKABA v. THE STATE
(2019)LCN/12591(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/OW/297C/2016
RATIO
CRIMINAL LAW: LAST SEEN DOCTRINE
“In considering this appeal, I find it pertinent to consider the ‘LAST SEEN DOCTRINE’. The Law presumes that the person last seen with the deceased bears the full responsibility for his death. It is a rebuttable presumption. It is a burden which falls on the accused person to explain the where about of the deceased. ISREAL AMOS v. THE STATE (2018) LPELR 44694 S.C.; OJO ESSEYIN v. THE STATE (2018) LPELR. 44476 S.C.; HAYATU UMAR v. THE STATE (2018) LPELR 43719 S.C.; OLUSANYA ONITILO v. THAT STATE (2017) LPELR 42576 S.C.; ARCHIBONG v. THE STATE (2006) ALL FWLR (PT. 323) 174; NNAEZE v. THE STATE (1996) SCNJ. 42045.” PER RITA NOSAKHARE PEMU, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“On the Issue of ALIBI, it is trite that the Court has a duty to consider all issues and defences placed before it before arriving at any decision. NDDC v. PRECISION ASSOCIATE LTD (2007) ALL FWLR (PT. 285) 533 @ 573; OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (PT. 805) 537; EGHAREVBA v. OSAGIE (2009) 18 NWLR (PT. 1773) 299 @ 310-311. Failure to do same constitutes a breach of the principle of fair hearing.
Where an accused person raised a defence that his ALIBI was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the ALIBI. YANOR & ANOR v. THE STATE (1968) NWLR 337.”PER RITA NOSAKHARE PEMU, J.C.A.
EVIDENCE:WAYS TO PROVE EVIDENCE
“It is trite that the guilt of an accused person may be proved by (a) confessional statements; (b) circumstantial evidence and (c) evidence of eye witness. GODWIN IGABELE v. THE STATE (2007) 2 NCC 125 @ 139. In MICAL ONUFREYCHUK (1955) CR APP, it was held that:- ‘On a charge of murder, the fact of death is provable by circumstantial evidence not withstanding that neither the body nor any trace of the body has been found and that the prisoner has made no confession of any participation in the crime before the prisoner can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime certain and leave no ground for reasonable doubt.'” PER RITA NOSAKHARE PEMU, J.C.A.
JUDGMENT: WHEN A JUDGEMENT IS PERVERSE
“A judgment is said to be perverse when decidedly, it is persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse, where the trial Judge took into account matters which he ought not to have taken into account, or where the Judge shuts his eyes to the obvious. ATOLAGBE v. SHORUN (1985) LPELR 592 S.C; ANSA v. NTUK (2009) 9 NWLR (PT. 1147) @ 557; EKEOWA v. NCC. PLC. NKALAGU (2009) 4 NWLR (PT. 1131) 285.”PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIMAOBI ONYEKABA Appellant(s)
AND
THE STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Imo State High Court, holden at Okigwe, delivered on the 7th day of October 2013 in Charge No. HO/15C/2010, – Pages 96 – 114 of the Record of Appeal.
SYNOPSIS OF FACTS IN THIS CASE
In a single count Charge (undated and with no date for filing) – proffered by the prosecution, the Accused/Appellant CHIMAOBI ONYEKABA was charged with the offence of MURDER, thus: –
STATEMENT OF OFFENCE
Murder contrary to Section 319 (1) of the Criminal Code Cap 30 Volume 11 Laws of Eastern Nigeria 1963 as applicable to Imo State of Nigeria.
PARTICULARS OF OFFENCE
CHIMAOBI ONYEKABA ‘m’ on the 5th day of November, 2009 at Okigwe, in the bush behind Stadium, in the Okigwe Judicial Division, murdered one Sunday Eboh, by removing his penis, one leg and one hand for rituals.Page 2 of the Record of Appeal.
According to the story of the Respondent (because the Appellant proffered no facts) one Eugenia Chinyere Ihuegbu, a teacher, on the 5th of November, 2009, while on her way to work, saw the deceased Sunday Eboh, who told her that he was going to collect the balance of his money from one CHINYERE ONYEKABA, who he worked for. As she looked back, she saw the deceased standing with the Appellant close to the house of the said Chinyere Onyekaba. The deceased wife later complained that she has not seen her husband. She proceeded with three others to the house of Chinyere Onyekaba who told them that she saw the deceased on Thursday morning, and they both were seen on the road leading to the Stadium. She then showed them the way to the house of the Appellant.
That the Appellant had showed a position of land to the deceased to clear for him. Upon Police investigation, and the search of the land, the slippers of the deceased and his lifeless headless body, with his right leg, and right hand severed were found.
The Appellant told the Police that as at the time of the commission of the offence, he was in Lagos.
The prosecution called five witnesses while the Appellant testified in his defence and called one witness.
At the end of the trial, the Court below found the Appellant guilty of the offence, and he was convicted and sentenced to death.
The Appellant is dissatisfied with the decision of the Court below and has appealed it. He filed a Notice of Appeal on the 19th of December, 2013, but on the 31st of May 2017, there was filed an amended Notice and Grounds of Appeal, encapsulating (seven) 7 Grounds of Appeal. It was deemed filed on the 19th of June 2018.
The Respondent filed his brief of Argument settled by Dr. Chukwudozie James Atize on the 31st of May 2017, but same was deemed filed on the 19th of June 2018.
The Respondent filed his brief of Argument on the 16th of November 2018, but same was deemed filed on the 26th of November 2018. It is settled by K. A. Leweanya, Chief State Counsel, Department of Public Prosecution, Ministry of Justice, Owerri.
The Appellant filed a Reply brief to Respondents? brief of argument on the 26th of November, 2018, but same was deemed filed on same date.
The Appellant distilled 7 issues for determination from the Grounds of Appeal. They are:-
i. Whether the learned trial judge did not err in law occasioning serious miscarriage of justice when he held that the Appellant was the brain behind the death of the deceased when there is no evidence that the Appellant killed the deceased or that the deceased died as a result of the act of the Appellant or that the Appellant conspired with any person to kill the deceased.
ii. Whether the learned trial judge did not err in law and thereby committed great injustice against the Appellant when he held that the piece of evidence which he believed rebutted the claim of the Appellant that he was in Lagos from November 2009.
iii. Whether the learned trial judge did not woefully misdirect himself in law when he relied on the case listed hereinafter to reject the defence of alibi raised by the Appellant.
iv. Whether the trial judge did not seriously err in law when he held that the Appellant was guilty of murder per charge when the prosecution intentionally failed to produce and tender forensic evidence connected to items such as baco bag full of blood, hand gloves, the deceased cloths and matchet found at the scene of crime with the deceased body which were available for DNA and or finger print test to establish evidence of the person who had physical and deadly contact with the deceased who indeed was likely to have killed this deceased.
v. Whether the trial judge did not err in law occasioning miscarriage of justice when he convicted the Appellant on the murder charge in the face of conflicting and contradicting evidence of PW1, PW2, PW3, PW4 and PW5 on such critical material issues of whether or not the head of the deceased, his penis and leg were cut off as well as the stomach being opened up and internal organ removed.
vi. Whether the learned trial judge did not err in law occasioning serious miscarriage of justice when he convicted the Appellant for the murder of the deceased when the prosecution failed to prove beyond reasonable doubt that the Appellant killed the deceased or that the deceased died as result of the act of the Appellant.
vii. Whether the learned trial judge did not make conclusions that are perverse, unreasonable, not in accord with evidence and thereby precipitating serious miscarriage of justice.
The Respondent proffered four (4) issues for determination. They are: –
1. WHETHER THE PROSECUTION PROVED HIS CASE BEYOND REASONABLE DOUBT THAT THE APPELLANT KILLED THE DECEASED.
2. WHETHER THE DEFENCE OF ALIBI RAISED BY THE APPELLANT AVAILS HIM.
3. WHETHER THE NON-TENDERING OF BACO BAG FULL OF BLOOD, HAND GLOVES, DECEASED CLOTHS AND MATCHETS FOUND AT THE SCENE WAS INTENTIONAL AND WHETHER SUCH OMISSION WAS FATAL TO THE PROSECUTION?S CASE.
4. WHETHER THERE ARE CONTRADICTION AND CONFLICTING STATEMENT IN THE PROSECUTION?S CASE AND WHETHER THE DECISION OF THE TRIAL JUDGE OCCASIONED MISCARRIAGE OF JUSTICE.
A painstaking perusal of the Appellant and Respondent’s brief of Argument, show that the respective issues for determination proffered by them dovetail. However, the issues for determination proffered by the Appellant cover the field of the issues proffered by the Respondent.
I shall therefore consider this appeal based on the issues proffered by the Appellant.
On the 26th day of November, 2018, the parties adopted their respective briefs of argument.
ISSUE NO 1.
The Appellant submits that when the Court below held that the Appellant was the brain behind the death of the deceased, it means that the Appellant conspired with other persons to kill the deceased. That the prosecution did not produce or tender any evidence indicating that the Appellant counseled or procured any person to kill the deceased. That there is no evidence in the Court below which supports that the Appellant killed the deceased by removing the deceased penis, one leg and one hand for ritual as charged. He submits that the evidence of the prosecution witness did not pin the Appellant to the commission of the crime, nor the counseling or procuring any person to kill the deceased. He submits that the evidence of PW1, PW2, PW3 and PW5 regarding the condition of the body of the deceased were at variance with the particulars of the offence charged. That the evidence of PW4 who conducted the autopsy contradicted the evidence of PW1, PW2, PW3 and PW5 on the state of the body of the deceased on examination.
ISSUE NO. 2
The Appellant submits that the Court below erred in law when he held that the piece of evidence which he believed rebutted the ALIBI defence of the Appellant that he was in Lagos from November 2009. He submits that it is the duty of the prosecution to investigate the defence of ALIBI once he gives particulars of his ALIBI as in the instant case. He submits that the Court below failed to properly consider and examine the defence of ALIBI.
He submits that the investigating Police Officer’s evidence lacked credibility. That the evidence of the IPO is at variance with the evidence of DW2 in Court and Exhibit C – Police Statement.
ISSUE NO. 3
He submits that the Court below misinterpreted and misapplied the decision of Courts resulting in the wrongful rejection of the defence of ALIBI raised by the Appellant.
ISSUE NO. 4
The Appellant submits that the prosecution failed to produce and tender forensic evidence connected to items such as baco bag full of blood, hand gloves, the deceased torn clothes and matchet found at the scene of crime with the deceased body, which were available for DNA, and or finger print test to establish evidence of the person who had physical contact with the deceased, and who in fact killed him.
That failure to produce same is fatal to the prosecution.
Submits that the evidence of torn clothes of the deceased, cuts on the body and the presence of cut glass and matchet found at the scene, is evidence that there was a fight between the deceased and his assailant.
ISSUE NO. 5
The Appellant submits that the Court below erred in law when he convicted the Appellant in the face of conflicting and contradictory evidence of PW1, PW2, PW3, PW4 and PW5 on material issues, such as whether or not the head of the deceased, his penis and leg were cut off, as well as the stomach being opened up and internal organs removed.
ISSUE NO. 6
He submits that there was no direct or circumstantial evidence linking the Appellant to the commission of the crime.
ISSUE NO. 7
Submits that the conclusion arrived at by the Court below are not supported by positive, cogent and reliable evidence. Therefore the evaluation of the learned trial Judge of the evidence leading to this conclusion was very poor and unjudicial.
RESOLUTION OF ISSUES
In considering this appeal, I deem it pertinent to treat issues 1, 6 and 7 together; issues 2 and 3 together, and issues 4 and 5 independently.
ISSUES 1, 6 AND 7.
These issues essentially question whether the prosecution was able to link the Appellant to the murder of the deceased; whether the prosecution was able to prove beyond reasonable doubt that the Appellant killed the deceased.
And if the answer to this question is in the negative, whether the judgment of the Court below was therefore perverse and ought to be set aside.
The Appellant has been charged with the murder of Sunday Eboh by removing his penis, one leg and one hand for rituals.
At the trial, Exhibit A (Medical Report); Exhibit B (Statement of the Accused Appellant); and Exhibit C (Statement of one Ebuka Onyekaba were tendered).
In Exhibit A6, the Appellant’s brother Ebuka Onyekaba did state that the Appellant is his elder brother. He lives with the Appellant and their parents in the same compound in Okigwe. He saw the Appellant last on the 9th of November 2009 in the evening.
But in Exhibit B – (statement of the Appellant) he stated that on the 5th of November, 2009, he was in Lagos with the MTN Company. He had travelled to Lagos as far back as September 2009. He denied the fact that his brother said he saw him on the 9th of November, 2009.
He did state that the man who took him to Lagos is one Victor. He does not know the deceased and had never met him.
The Medical Report Exhibit A states the primary cause of death of the deceased as ASSAULT, while the secondary cause is cardiopulmonary failure. The Appellant made his statement to the Police on the 11th of March 2010.
Let me peruse the evidence of some of the prosecution witnesses.
PW1 – Eugenia Chinyere Ihuegbu, a teacher, testified how on the 5th of November 2009, she was going to work and along the road leading to the back of the stadium, she saw the deceased, who told her that he was going to demand money from someone who owed him – Chinyere Onyekaba. She went her way to work. Later, she looked back and saw the deceased standing with the Appellant.
That on Sunday morning she heard that the deceased had not got back home since Thursday. On Monday morning, she, in company of others went to report the matter to the Police. When the Appellant was later accosted, he said he saw the deceased last on Thursday. Thereafter the Appellant showed to the Police a piece of land belonging to the Appellant’s wife for him to clear. The Appellant promised to help look for the deceased. As at the 10th of November 2009, the deceased was nowhere to be found. The Appellant had been seen walking aimlessly in that area where he had been earlier seen with the deceased. The Police was contacted by PW1. The Police told her and some officers to go search for the deceased in that area. That they (the Police) would conduct their own search. They went to the land which the Appellant showed them that he told the deceased to clear for his wife. The land is fenced round with dwarf wall. On getting to the land, they saw the slippers of the deceased, and upon moving in closer, they saw the deceased’s lifeless body. His head, right hand, right leg and his penis had been cut off. They went to the Police to report.
PW2 – Prince Inegbu Anthony who testified on the 28th of March 2012 corroborated PW1’s evidence.
PW3 – is Mrs. Chinyere Onyekaba, a farmer. He knows the accused and the deceased. The deceased used to work for them on their farm. On the 2nd of November, 2009, the deceased worked on their farm. She saw the deceased again on the 5th of November, 2009 discussing with the Appellant on the road leading to the Stadium. This was on Thursday. On Monday 9/11/2009 people came to her house to ask for the deceased.
PW4 – is Dr. Ekwedike Dennis Obinna. He works with the Hospitals Management Board Owerri, having formerly worked at the General Hospital Okigwe. He performed autopsy on the deceased on the 13th of November, 2009. It was the body of a decomposed negroic man found inside a bush behind Okigwe Stadium. He tendered Exhibit ‘A’ the Medical Report.
PW5 – is the Police Officer named Obijiaku Amos Maduabuchi, attached to the homicide section of State C. I. D. Owerri. He investigated the crime and he visited the scene of crime. The Appellant was nowhere to be found. The matter was referred to him on the 13th of November, 2009. The Appellant was however arrested on the 11th of March 2010. He recorded the statement of the Appellant, and tendered it as Exhibit ‘B’.
The Appellant gave him a phone number of one Victor, an MTN mast manager, whom he claimed to have been with on the day of the incident. They called the number in the presence of the Appellant, supd. Ambrose Nna, and A. C. P. Anthony Njoku, and the person told them that he does not know the Appellant, neither was he with him on the day of the incident.
He also said he was not working with MTN. The office or home address of the said Victor was not furnished by the Appellant.
That they visited the home of the Appellant at Okigwe, where he obtained statement from his younger brother Chukwubuka Onyekaba, that the Appellant was with the deceased on the day of the incident, and left their home on the 9th November 2009.
PW5 – Obijiaku Amos of State C. I. D. Owerri, was on the team of Policemen who investigated the matter. He corroborated the evidence of PW3.
The Appellant testified as DW1. He testified that he travelled to Lagos the 28th of September, 2009.
DW2 – Onyekaba Ebuka testified on the 18th of March 2013. That in November 2009 the Appellant was in Lagos working.
In considering this appeal, I find it pertinent to consider the ‘LAST SEEN DOCTRINE’. The Law presumes that the person last seen with the deceased bears the full responsibility for his death. It is a rebuttable presumption. It is a burden which falls on the accused person to explain the where about of the deceased. ISREAL AMOS v. THE STATE (2018) LPELR 44694 S.C.; OJO ESSEYIN v. THE STATE (2018) LPELR. 44476 S.C.; HAYATU UMAR v. THE STATE (2018) LPELR 43719 S.C.; OLUSANYA ONITILO v. THAT STATE (2017) LPELR 42576 S.C.; ARCHIBONG v. THE STATE (2006) ALL FWLR (PT. 323) 174; NNAEZE v. THE STATE (1996) SCNJ. 42045.
In the present case, the witnesses saw the Appellant with the deceased shortly before he disappeared and was later found dead. The Appellant?s going to Lagos was a lie, as this was not established. His brother did say that he was in Okigwe and not Lagos with him. The lies told by the Appellant is corroboration of the charge against him, which circumstantially ties him to the commission of the offence.
There is no direct evidence linking the Appellant to the crime, but there are circumstantial, cogent and compelling which ties him to it. First and foremost he told lies like an adder. He lied about his ALIBI, he lied about everything. He is entitled to lie, but the prosecution has the task and indeed the onus to prove its case beyond reasonable doubt. HASSAN v. STATE (2001) 6 NWLR (PT. 709) 286 @ 307.
There is nothing on record to indicate that any implements were used to decapitate the deceased, and remove his hand and leg.
No Exhibits were tendered in Court. In fact no Exhibits supporting same were reflected. A judgment is said to be perverse when decidedly, it is persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse, where the trial Judge took into account matters which he ought not to have taken into account, or where the Judge shuts his eyes to the obvious. ATOLAGBE v. SHORUN (1985) LPELR ? 592 S.C; ANSA v. NTUK (2009) 9 NWLR (PT. 1147) @ 557; EKEOWA v. NCC. PLC. NKALAGU (2009) 4 NWLR (PT. 1131) 285.
In MILLER v. MINISTER FOR PENSIONS Lord Denning M. R (as he then was) posited that proof beyond reasonable doubt, does not mean proof beyond the shadow of doubt. The Court would fail to protect the society if it admitted to fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt. The Appellant was on the run for three months next after the death of the deceased. Why? As at the time he said he was in Lagos, he was not.
People, including his own brother saw him in the same village. Appellant said that his own wife owned the farm on which the deceased worked. The deceased worked for them, before he died.
It is without doubt that when human parts are severed from a being, it only portends that it is for monetary ritual purposes. In other words, these parts are expected to be sold for money.
I do not see anything that is perverse in the judgment of the Court below as the Court amply appraised the evidence before it, having regard to the fact that it was opportuned to see and hear the witnesses and the Appellant.
The Appellant told a lie at every turn. He weared his own hanging rope because of these lies. He cannot exculpate himself from the commission of the crime.
These issues 1, 6 and 7 are resolved in favour of the Respondent and against the Appellant.
ISSUE 2 AND 3.
On the Issue of ALIBI, it is trite that the Court has a duty to consider all issues and defences placed before it before arriving at any decision. NDDC v. PRECISION ASSOCIATE LTD (2007) ALL FWLR (PT. 285) 533 @ 573; OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (PT. 805) 537; EGHAREVBA v. OSAGIE (2009) 18 NWLR (PT. 1773) 299 @ 310-311.
Failure to do same constitutes a breach of the principle of fair hearing.
Where an accused person raised a defence that his ALIBI was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the ALIBI. YANOR & ANOR v. THE STATE (1968) NWLR 337.
Evaluation of evidence is the primary duty of the trial Court, who saw and heard the witnesses testify in the witness box. ? ALI v. THE STATE (2015) 10 NWLR (PT. 1466) 1 @ 22.
In his statement to the Police of 11th of March 2010, the Appellant stated inter alia:
On the 8th day of November, 2009, I Chimaobi Onyekaba, I was at Lagos State with the MTN Company whom I was helping in digging some ground for the installation of the network mask. I travelled to Lagos State by September 2009, while my brother Ebuka Onyekaba made in his statement that he saw me last on the 9th of November 2009 in my house, that it was not true
Ebuka Onyekaba, the Appellants younger brother did state that he saw the Appellant last in the evening of 9/11/2009 – Page 11 of the Record of Appeal. He testified as DW2 and retracted his statement to that effect. His evidence becomes unavailable in law.
The Appellant, according to the Police investigation Report, was arrested on the 11th of March, 2010 (about four months after the incident) and he pleaded ALIBI in that he was in Lagos on 5/11/2009 when the deceased was killed. That the Appellant gave the names of the person that took him to Lagos as Victor whose surname is unknown to the Appellant. That the said Victor was a contractor with MTN, and he gave his phone number as 07032388807.
The said Victor denied knowing the Appellant.
Without doubt, the ALIBI put forth by the Appellant has been rebutted and debunked by these circumstances. Firstly, his brother said he saw him in the village when the Appellant had said he was in Lagos and secondly, the Victor denied knowing him.
In the judgment of the Court below, it observed thus inter alia at Page 16 (Pages 111 – 113 of the Record of Appeal)
It is the duty of the Police to investigate an ALIBI raised by the accused person. See DOGO v. THE STATE (2001) ALL FWLR (PART 30) 388 at 1391. For a proper plea of ALIBI to be established there is an evidential burden on the accused to bring evidence with all necessary particulars in support of the ALIBI? In the instant case the accused claimed to have been in Lagos where one Victor an MTN contractor took him to.
The PW5 told the Court that accused refused to take them to the address in Lagos where he was staying with Victor. The said Victor was called with the telephone number given by the accused but he denied knowing the accused, denied taking to Lagos, and denied being an MTN contractor.
PW1, PW2 and PW3 gave evidence of seeing the accused standing and dismissing with the deceased on 5/11/2009. These pieces of evidence which I believe rebut the claim by the accused that he was in Lagos from September 2009. I hold and find as a fact that the accused did not establish the defence of ALIBI and the prosecution witnesses have sufficiently rebutted the claim that the accused was in Lagos on 5th November 2009.
It is apparent that the Appellant had given insufficient and false particulars of the defence of alibi put up by him. Therefore there is no burden that shifts to the prosecution to rebut the defence of ALIBI. ADIO v. THE STATE (1986) 3 NWLR (PART 31) 714 @ 715; ADEDEJI v. THE STATE (1971) 1 ALL NLR 75; OZAKI v. THE STATE (1998) 1 ALL CLR 27.
The Court below even went to the extent of stating the circumstantial evidence against the Appellant. According to it the deceased was seen last standing and discussing with the Appellant. PW1, PW2 and PW3 testified to this. The Appellant pointed out to PW1 and PW2 the farm land where the deceased worked for him. The decomposed and decapitated body of the deceased was found on the same land. It was the Appellant who showed this to PW1 and PW2 (although he denied this in Court). The Appellant ran away immediately after the murder of the deceased and came back only when he felt that the dust had settled. The younger brother DW2, who had made a statement to the Police that he saw the Appellant last on 9/11/2009 (Exhibit C) suddenly, reneged on his statement in Court when he testified, moreso the claim of the Appellant to have been in Lagos at the relevant time was proved to be false by the Police, when Victor denied knowing the Appellant, or taking him to Lagos. He also denied being an MTN contractor.
It is a fact that the Court below based its conviction on circumstantial evidence. This is because evidence abound before the Court that the Appellant was seen by PW1, PW2 and PW3 standing and discussing with the deceased on the day in question (a fact which the Appellant denied.) Both men later moved away to the land where the deceased was to work for the accused. The accused himself showed the land to PW1 and her brother, and it was on the land that the decomposing body of the deceased was discovered. There is no evidence that any other person was seen with the Appellant on that day, and according to the Court below, this excludes the possibility that any other person other than the accused did the killing of the deceased. The Appellant ran away as soon as the deceased body was discovered and there is no evidence that he joined in the searching for the deceased.
These are facts which were at the bosom of the Court below. It was right to arrive at the conclusion that these facts were so compelling and cogent, as to debunk the defence of ALIBI put up by the Appellant.
Accordingly Issues No. 2 and 3 are resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 4
Where available evidence is enough to pin the accused person to the commission of a crime – whether directly or circumstantially, the Court can secure a conviction for murder.
It is trite that the guilt of an accused person may be proved by (a) confessional statements; (b) circumstantial evidence and (c) evidence of eye witness. GODWIN IGABELE v. THE STATE (2007) 2 NCC 125 @ 139. In MICAL ONUFREYCHUK (1955) CR APP, it was held that:-
‘On a charge of murder, the fact of death is provable by circumstantial evidence not withstanding that neither the body nor any trace of the body has been found and that the prisoner has made no confession of any participation in the crime before the prisoner can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime certain and leave no ground for reasonable doubt.”
I am of the view that the facts elicited in evidence in Court from the prosecution witness, as well as the failure of the defence of ALIBI put up by the Appellant, constitute sufficient circumstantial evidence that admits of no other proof. Failure to render forensic evidence connected to items such as baco bag full of blood, hand gloves, the deceased cloths and matchet found, at the scene of the crime with the deceased body is not fatal to the case of the prosecution. Furthermore, failure to submit these items for DNA and or finger print test to establish evidence of the person who had physical and deadly contact with the deceased, is not fatal to the case of the prosecution.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 5
I should have considered this issue with Issue No 4 above. This is because, in the face of the cogent and compelling circumstantial, evidence before the Court below and the failure of the defence of ALIBI, the Appellant has no escape route.
Moreso, when the conflicting evidence of witnesses is such as not material, it becomes of no moment. In this present case, the Appellant is pointing to the contradiction of witnesses, as to the issue of whether or not the head of the deceased, his penis and leg were cut off, as well as the stomach being opened up and internal organs removed. It is my view that evidence regarding this issue, even where contracdictory does not affect the compelling and cogent circumstantial evidence against the Appellant as to secure a conviction by the Court below.
The evidence of the prosecution witnesses were unchallenged and uncontroverted.
Moreso, not all contradictions are capable of truncating the case of the prosecution. EJEKA v. THE STATE (2003) FWLR (PT. 163) contradiction in the evidence of prosecution witnesses is said to be fatal, if they are likely to create doubt in the mind of the Court.
No doubt has been created in the mind of the Court below by virtue of any contradiction in the evidence of the witnesses. This issue is resolved in favour of the Respondent and against the Appellant.
The Appeal fails and is hereby dismissed. The judgment of the High Court of Imo State, holden at Okigwe, delivered on the 7th of October, 2013 in charge No. HO/15C/2010 is hereby affirmed.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my Lord, RITA NOSAKHARE PEMU, JCA and
I agree with her reasoning and conclusion, that the appeal lacks merit.
I think the “last seen doctrine”, which placed burden on the Appellant to explain what caused the violent termination of the deceased life, and who was seen with him (Appellant) last, on 5/11/09, coupled with Appellant’s decoy, feigning alibi, that he was not at the scene but in Lagos at the time of the brutal murder of the deceased, strengthened the circumstantial evidence that fixed the crime on the Appellant.
To say that he was in Lagos at the time, when eye witnesses, including his brother, said he (Appellant) was in the locality of the crime, was unwise.
In the case of Jua vs The State (2010) LPELR – 1637 SC, the doctrine of last seen was re-stated.
It was held:
“In this appeal, alluring submission were made on behalf of the parties touching on the “last seen theory.” It is that in murder or culpable homicide case, where the deceased was last seen with the accused, such an accused, like the Appellant herein, has a duty to explain or show the whereabout of the deceased or how the deceased met his death. See Archibong Vs The State (2006) 14 NWLR (Pt. 1000) 349.
And where no explanation is forthcoming, the Court has justification to draw conclusion that it was the accused that killed the deceased. See Adeniji Vs The State 5 SCNJ 371; Adepetu vs The State (1998) 7 SCNJ 83…” Per Fabiyi, JCA-
The evidence of PWs 1 – 2, having pinned the Appellant to the land, which Appellant admitted, he hired Sunday Eboh (deceased) to clear for his (Appellant’s) wife, wherein the dismembered body of the deceased was found (and the deceased was last seen with Appellant alive), the plea of alibi was therefore defeated especially as Appellant’s brother told the Court that Appellant was in the locality (not in Lagos) as at 5th to 9th November 2009, when he (Appellant) claimed he was in Lagos.
Where there is evidence that strongly fixes an accused person to the scene of crime, a plea of alibi is defeated, and may not even require wasting time to investigate it. See the case The State vs Ekanem (2016) LPELR – 41304 SC; Akeem vs State 7) LPELR – 42465 (SC); Chukwunyere vs The State (2017) LPELR 43725 (SC).
I too dismiss the appeal and affirm the judgment of the trial Court, convicting and sentencing Appellant to death, for murder.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
Dr. Chukwudozie James ArizeFor Appellant(s)
K. A. Leweanya (Chief State Counsel Department of Public Prosecution Ministry of Justice, Owerri)For Respondent(s)
