DANIELS v. STATE (2020)

DANIELS v. STATE

(2020)LCN/14055CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/29C/2016

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

NATHANIEL EZE DANIELS APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT WILL DISCHARGE AN ACCUSED PERSON WHERE THERE IS NO PRIMA FACIE CASE AGAINST THE DEFENDANT

The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a prima facie case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge, discharge him. In HON. YAKUBU IBRAHIM & ORS. V. COMMISSIONER OF POLICE (2010) LPELR-8984(CA), this Court held as follows:
“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it See Ohuka v. State (NO.2)(1988) 4 NWLR (pt 86) 36”…if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged, a Court of trial must, as a matter of law, discharge him…” PER UMAR, J.C.A.

INGREDIENTS OF THE OFFENCE OF MURDER

The Respondent in order to secure a conviction of the offence charged is duty bound to prove:
(1) The death of a human being
(2) That the death was caused by the act or commission of the accused person/and
(3) That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence. See AKINSUWA V. STATE (2019) LPELR – 47621 (SC). PER UMAR, J.C.A.

WHETHER OR NOT SUSPICION CAN GROUND CONVICTION

A Court is not expected to veer off the track of justice to determine a matter based on assumptions, intuitions and sheer speculations. It is trite law that suspicion no matter how grave cannot ground conviction. See DANIEL NSOFOR & 1 OR V. THE STATE (2004) Vol.20 NSCQLR pg. 74, (2004) 18 NWLR (Pt. 905). It should be stressed that, suspicion undermines the real essence of justice leaving it at the mercy and realm of conjecture and trial and error, above all, makes administration of criminal justice seen as a game of jackpot which in common language could be viewed as “the more you look the less you see”. Suspicion ought to fuel investigation and result in proof. Suspicion not turned to proof by proper investigation remains suspicion and cannot be elevated to the status of proof beyond reasonable doubt as required by law. Anything to the contrary would detract from the quality of justice envisaged by the Constitution as prerequisite for the conclusion of guilt. IDOWU V. THE STATE (1998) 11 NWLR (Pt.574) 354. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Enugu State delivered by Hon. A. A. Nwobodo in Charge No. E/56C/2016 on 4th February, 2019 wherein the trial Court dismissed the Appellant’s no case submission and ordered him to enter his defence to the charge proffered against him.

BRIEF STATEMENT OF FACTS
The Appellant, along with some 9 other persons were charged with the murder of one Barr. Theophilus Ejimofor Ozongwu contrary to Section 270 and punishable under Section 274 (1) of the Criminal Code, Cap. 30, Vol. II, Revised Laws of Enugu State of Nigeria, 2004. In a bid to prove the allegation against the Appellant and the other accused persons, the Respondent called six witnesses who testified as PW1 – PW6 respectively. At the close of the Respondent’s case, the Appellant through his counsel made a no case submission.

After the addresses of counsel to the parties on the no case submission, the learned trial Judge in a considered ruling delivered on the 4th day of February, 2019 dismissed the Appellant’s no case submission and

as well ordered him to enter his defence. (See pages 145 – 148 of the Record).

Dissatisfied with the ruling, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 7th February, 2019 and filed on 11th March, 2019. The sole ground of appeal albeit without its particulars is hereunder reproduced as follows:
“GROUND OF APPEAL
Ground 1-– ERROR-IN-LAW
The learned trial Judge erred in law when he failed to uphold the No Case Submission of the Appellant and held that he should proceed to make his defence to the single count of the offence of murder with which he is charged in Charge No: E/56C/2016.”

In line with the Rules of this Court, parties filed and exchanged their respective Briefs of argument. The Appellant’s Brief is dated 1st April, 2019 and filed on 2nd April, 2019. The Appellant’s Brief was settled by C. CHUMA OGUEJIOFOR ESQ. who at paragraph 2.00 of the Appellant’s Brief of Argument distilled a sole issue for the determination of the appeal to wit:
“Whether the learned trial Judge had acted correctly in refusing to uphold the No case

submission of the Appellant and in holding as he did that should enter his defence to the charge.”

The Respondent’s Brief of Argument is dated 6th May, 2019 and filed on 8th May, 2019. The said Brief was settled by CHIEF P.M.B. ONYIA who also distilled a sole issue for the determination of this appeal to wit:
“Whether the learned trial judge was not right in dismissing the no case submission made by the appellant, and calling upon him to enter his defence.”

The appeal was taken on 10th March 2020 wherein counsel to the parties adopted their respective briefs and made oral adumbrations in respect of their postures in the appeal.

APPELLANT’S ARGUMENTS
Learned counsel to the Appellant submitted that there was no legally admissible evidence linking the Appellant to the offence charged. He submitted that the learned trial Judge had found that the evidence linking the Appellant to the charge of murder is the petition of PW6 to the police i.e. “Exhibit F” in the proceedings, and that merely because the name of the Appellant was mentioned in the said “Exhibit F” as one of the suspects in

the offence with which the Appellant was charged then his no case submission failed. Counsel referred this Court to the case of STATE V AJAYI (2016) LPELR – 40663 (SC) and argued that suspicion no matter how grave cannot ground conviction. He then submitted that the mere mention of the Appellant’s name in the said Exhibit F as a suspect in the killing of the deceased only made him a suspect and nothing more.

Counsel at paragraph 3.05 of the Appellant’s Brief of Argument made elaborate reference to Exhibit F and submitted that, the evidence-in-chief of PW6 revealed that the said witness saw nothing of the incident that led to the death of the deceased and as such, the said evidence was hearsay including his petition made to the police in Exhibit F. On the admissibility of hearsay evidence, he referred this Court to the cases of BUHARI & ANOR V. OBASANJO & ORS. (2005) LPELR – 815 (SC); OKEREKE V UMAHI AND ORS (2016) LPELR – 40035 (SC).

Counsel at paragraph 3.12b of the Appellant’s brief also made elaborate reference to the testimony of PW2 at page 109 of the record of appeal and submitted that it reveals

that PW2 did not witness the death of the deceased and that his testimony did not render evidence that he saw the Appellant kill the deceased. He submitted further that in the three different statements PW2 made to the police, he never mentioned the name of the Appellant as one of the persons he had seen working on the deceased’s farm. It was his submission that his evidence in Court and his mention of the Appellant’s name for the first time at the trial on 17/4/2018 i.e. about three years after the incident is an afterthought and totally bereft of any probative value.

In his final analysis of the sole issue, he urged this Court to set aside the ruling of the Court below dismissing the Appellant’s no case submission and to replace same with a decision of this Court upholding the no case submission and discharging and acquitting the Appellant.

RESPONDENT’S ARGUMENTS
On the sole issue distilled by learned counsel to the Respondent, he argued that a no case submission would lie, where at the close of the prosecution’s case, there has been no evidence to prove an essential ingredient of the offence charged, or where

the evidence led by the prosecution has been so discredited as a result of cross-examination that no reasonable Court could rely on it. He referred this Court to the case of AJULUCHUKWU V STATE (2014) 13 NWLR (Pt. 1425) 641. He submitted that Exhibit F written by PW6 for an investigation of the murder of the deceased mentioned the appellant as among those who murdered the deceased. He submitted further that Exhibit F is legally admissible evidence and the trial Court was right to have relied on it. Counsel submitted that the admission of the petition as an Exhibit at the trial Court is not part of the complaint in this appeal and when the said exhibit was sought to be tendered at the trial, Counsel to the Appellant did not object to its admissibility.

Counsel argued that in dealing with a no case submission, the Court is not concerned with the credibility or otherwise of the witnesses; and that the issue of the weight to be attached to the evidence led does not yet arise. He referred this Court to the case of EKWUNUGO V. FRN (2008) 7 S.C 196. He argued further that what the Court would rather be concerned with is whether a prima facie case has been made

out against the defendant. Counsel argued that a no case submission can only be successful, where the prosecution at the close of its case, failed to make a prima facie case against a defendant. He referred this Court to the case of UDEOGU V. FRN & ORS (2016) LPELR – 40102 (SC).

He made reference to the said Exhibit F and submitted that said Exhibit contains 36 names with the Appellant’s appearing as number 19. He submitted further that this is definitely serious enough to warrant the appellant being called upon to make some explanations. Counsel submitted that the issue of whether Exhibit F is hearsay, on the ground that PW6 was not present at the scene of the crime, as argued by the Appellant’s counsel, is a matter to be resolved at the stage of evaluation of evidence, at the end of trial at the Court below.

Counsel submitted that it was obvious that the invasion of the deceased’s farmland and destruction of the economic crops therein, on the day he was murdered, was the catalyst of the murder and evidence of PW2 was apt on this. Counsel submitted further that the evidence led by PW2, an eye witness, places the

Appellant at the site of the invasion and destruction of the deceased’s farm land, which act lured the deceased to his death.
On the whole, he urged this Court to dismiss this appeal and uphold the decision of the Court below.

RESOLUTION
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various postures in this appeal. The issues distilled by counsel to the parties are similar if not the same. In the event of their similarity, I consider the below stated issue as sufficient to determine the different postures of counsel in this appeal.
“Whether the trial Court was right to have dismissed the Appellant’s no case submission?

is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it See Ohuka v. State (NO.2)(1988) 4 NWLR (pt 86) 36”…if there is no sufficient evidence linking the accused with the statutory elements of the offence with which he is charged, a Court of trial must, as a matter of law, discharge him…”

The singular question that arises from the foregoing is whether an essential element of the offence was established by the Respondent in this case or better still; whether a prima facie case has been made against the Appellants to warrant him to enter defence to the charge before the Court below. The Appellant was charged with the offence of murder contrary to Section 270 and punishable under Section 274 (1) of the Criminal Code, Cap. 30, Vol. II, Revised Laws of Enugu State of Nigeria, 2004. The Respondent in order to secure a conviction of the offence charged is

duty bound to prove:
(1) The death of a human being
(2) That the death was caused by the act or commission of the accused person/and
(3) That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence. See AKINSUWA V. STATE (2019) LPELR – 47621 (SC).
In trying to ascertain whether or not, a prima facie case had been made against the Appellant to warrant the entering of his defence or otherwise, it is important to take a judicial sojourn into the evidence led by the prosecution witness and the documents tendered during trial. In a bid to establish the role the Appellant allegedly played in the death of the deceased, the Respondent led evidence through PW2 and PW6 and tendered some documents. It is evident that the Petition in Exhibit F written by PW6, one Chief Eric Ozongwu to the Police is the machinery that set in motion the institution of the criminal charge against the Appellant. (See pages 17 – 18A of the record of appeal). In the said petition, the Appellant was mentioned among others as the culprits who murdered Ejimofor Ozongwu.

During trial, PW2 made statements to the police dated 12/01/2016, 21/03/2017 and 4/03/2017 respectively. (See pages 22 – 24A of the record of appeal). The said statements were admitted in evidence as Exhibits B, C and D respectively. I have read through the statements made by PW2 made to the police vis-a-vis his testimony in Court, it is clear that P2 in all his statements made to the police did not mention the name of the Appellant as one of those who killed the deceased. He only did when he saw the Appellant on the day he gave his testimony during trial. In PW2’s statement to the police and in his testimony during trial, it is undoubtedly clear that PW6 did not witness the death of the deceased. In all his statements and also in his testimony in Court, he testified that it was Eric Ozongwu, PW6 who is brother of the deceased that informed him that the deceased had been killed. He even went as far as saying that the place where the deceased was killed was far from his residence. For clarity sake, the excerpt of this testimony which is similar to his statements made to the police is hereunder reproduced as follows:
“I told him that I saw him drove

towards his house, that he has gone home. He told me that they are looking for Ejimofor. Later about 30 minutes, he came back and told me that Ejimofor had been killed, that he saw him, I wept. I was confused I could comprehend the state I found myself in at that time. The place where Barrister Ejimofor was killed was far from my residence. He was killed at a location of Onuagu Okowojo. I am a native of Okwojo Ngwo. I lived at Okwojo.

As for PW6 who tendered Exhibit F wherein the name of the Appellant was mentioned as one of those who allegedly killed the deceased. A total number of 36 persons were mentioned by PW6 in his petition to the police. PW6’s testimony can be found at pages 139 – 143 of the record of appeal). From PW6’s testimony, it is certain PW6 did not witness the murder of the deceased as he only arrived at the scene of crime after the gruesome act had been completed. Under cross examination by Counsel to the 1st Defendant at the trial of the action at page 141 of the record of appeal, he testified as follows:
“Q: In your petition you listed 36 names, but your statement to the police you remove and added some

other names. What is basis for this action?
A: We all live in the village and knew the involvement of everybody. On further investigation, I found out some people were not involved in the act, so in order to avoid punishing innocent persons. I wrote an addendum to my first petition.”

I am of the considered view that since PW6 did not witness the incident leading to the death of the deceased, he only mentioned the 36 people in his petition based on the suspicion of their involvement in the crime perpetuated. To add credence to the fact that he was not sure about the identities of the murderers when the petition was made, he admitted under cross-examination that he removed some names and added some. When questioned about the rationale for doing this, he said that he found out that some people were not involved in the act and in order to avoid punishing innocent persons, he had to remove their names in his addendum to his first petition.

From the above, it is clear that there has been, throughout the trial, no legally admissible evidence linking the Appellant with the commission of the offence charged. A Court is not expected to veer off the

track of justice to determine a matter based on assumptions, intuitions and sheer speculations. It is trite law that suspicion no matter how grave cannot ground conviction. See DANIEL NSOFOR & 1 OR V. THE STATE (2004) Vol.20 NSCQLR pg. 74, (2004) 18 NWLR (Pt. 905). It should be stressed that, suspicion undermines the real essence of justice leaving it at the mercy and realm of conjecture and trial and error, above all, makes administration of criminal justice seen as a game of jackpot which in common language could be viewed as “the more you look the less you see”. Suspicion ought to fuel investigation and result in proof. Suspicion not turned to proof by proper investigation remains suspicion and cannot be elevated to the status of proof beyond reasonable doubt as required by law. Anything to the contrary would detract from the quality of justice envisaged by the Constitution as prerequisite for the conclusion of guilt. IDOWU V. THE STATE (1998) 11 NWLR (Pt.574) 354

It is my firm view that there is no legally admissible evidence linking the Appellant with the commission of the offence charged. There is also no evidence to prove the

essential ingredients of the offence of murder against the Appellant or a prima facie case made out by the Respondent against the Appellant requiring, at least, some explanation from the Appellant.

It is clear from the foregoing testimonies of PW2 and PW6 whose evidence were relied upon in ruling against the Appellant’s no case submission that the Appellant’s involvement in the murder of the deceased has not been prima facie established by legally admissible evidence. I am of the firm view that no credible evidence was led by PW2 and PW6 to make it worthwhile to continue with the proceedings against the Appellant.

On the whole, this Court therefore holds the view that the appeal is meritorious and same is hereby allowed. Thus, the sole issue formulated by this Court as derived from the issues submitted before it by the parties is resolved wholly in favour of the Appellant. The ruling of the trial Court delivered by Hon. A. A. Nwobodo in Charge No. E/56C/2016 on 4th February, 2019 is hereby set aside. The Appellant is hereby discharged and acquitted accordingly.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal has merit and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

CHUMA OGUEJIOFOR ESQ. For Appellant(s)

CHIEF P. M. B. ONYIA ESQ. For Respondent(s)