EDIRI IRIRI v. THE STATE
(2018)LCN/11998(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of July, 2018
CA/B/192CC/2014
RATIO
CRIMINAL LAW: WAYS TO PROVE THE COMMISSION OF A CRIME
”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). 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;
– OGBU VS STATE (1992) 2 NWLR Part 222 Page 146;
– EMEKA VS THE STATE (2001) 14 NWLR Part 734 Page 666 at 683.
– ITU VS STATE (2016) 5 NWLR Part 1506 Page 443 at 465 – 466 Paragraph H – B Page 468 Paragraphs A – B.” PER JIMI OLUKAYODE BADA, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“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 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:-
– KAYODE VS THE STATE (2016) L.P.E.L.R 40028 (SC).
– PATRICK NJOVENS VS THE STATE (Supra);
– GARBA VS C.O.P (2007) 16 NWLR Part 1060 Page 378 at 400;
– YAKUBU VS THE STATE (2014) L.P.E.L.R 22401 (SC);
– OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 ? 40;
– SULE VS STATE (2009) 17 NWLR Part 1169 Page 33.
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.” PER JIMI OLUKAYODE BADA, J.C.A.
CRIMINAL LAW: INGREDIENTS OF MURDER
”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 the accused persons on trial.
(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.” PER JIMI OLUKAYODE BADA, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“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 V THE STATE (Supra). 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.
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
EDIRI IRIRI Appellant(s)
AND
THE STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the 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 i.e. (The Appellant) (8) CHIEF KINGS IRIRI.
The Appellant was found guilty and convicted for the offence 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 7th 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 the 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 and 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 case 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 18th day of December 2013, the 1st, 2nd, and 4th 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 reproduced as follows:
(1) Was the Learned trial Judge right in law in disregarding and not upholding the defence of alibi when her lordship herself held that:
(a) The alibi was timeously raised by the Appellant.
(b) The alibi was not investigated by the police.
(Distilled from Ground 1 of the amended Notice of Appeal).
(2) Was the Learned trial Judge right in convicting appellant of murder when his case was not proved beyond reasonable doubt. (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal).
In his own case the Learned Counsel for the Respondent also formulated two issues for the determination of this appeal.
The issues are reproduced 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.
(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 this appeal on 22nd May 2018, the Learned Counsel for the Appellant stated that the Appeal is against the Judgment of Delta State High Court, Orerokpe delivered on 18th December 2013.
The Appellant’s brief of argument was filed on 6th June 2017 and Appellant’s reply brief of argument filed on 20th November 2017. The Appellant’s amended Notice of Appeal was filed on 8th December 2016 but deemed as properly filed on 25th April 2017.
The Learned Counsel for the Appellant adopted and relied on the two briefs of argument as his argument in urging that the appeal be allowed.
On the other hand, the Learned Counsel for the Respondent referred to the Respondent’s brief of argument filed on 30th October 2017 but deemed as properly filed on 22nd May 2018.
He adopted and relied on the said brief as his argument in urging that the appeal be dismissed.
I have carefully gone through the issues formulated for the determination of this appeal by counsel for both parties. The issues are similar. I will therefore rely on the issue formulated for the determination of this appeal by counsel for the Appellant.
ISSUES FOR THE DETERMIANTION OF THE APPEAL.
ISSUE NO.1
Was the Learned trial Judge right in Law in disregarding and not upholding the defence of alibi when her Lordship herself held that:
(a) The alibi was timeously raised by the appellant.
(b) The alibi was not investigated by the police.
(Distilled from Ground 1 of the amended Notice of Appeal).
The Learned Counsel for the Appellant submitted that in Criminal Justice, Alibi is recognized and accepted as a fundamental defence open to any person standing trial for any crime. And that an accused person who raises the defence of Alibi is in effect denying participation or taking part on the commission of the offence on the ground that as at 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.
He went further in his submission that to set up a defence of alibi, which the prosecution must investigate all that the law required the accused person to do is to give particulars of the alibi that will enable the investigator to investigate it.
This is done by the accused person giving at the earliest opportunity, explanation as to where he was at the time the crime was allegedly committed and or the person he was with at time. He relied on the case of: – SHEHU VS THE STATE (2010) ALL FWLR PART 523 PAGE 184
The Appellant who was the 7th accused at the Lower Court put up the defence of Alibi in his statement to the police when he was arrested. The alibi so raised was not investigated by the police and no explanation was given for the prosecution’s failure to investigate the alibi.
It was submitted on behalf of the Appellant that the Alibi was not investigated.
He relied on the following cases:
– SHEHU VS THE STATE (Supra);
– DOGO VS THE STATE (2001) FWLR Part 39 Page 1388;
– OYEBOLA VS THE STATE (2008) All FWLR Part 402); PAGE 1175 at 1184 Paragraphs E – F.
The Learned Counsel for the Appellant submitted that the Learned trial Judge having held that the Appellant timeously set up his defence of alibi and that the prosecution did not investigate the defence of alibi the only option open to the trial Judge was to hold that the prosecution has not proved the case against the two appellants beyond reasonable doubt.
It was finally submitted on behalf of Appellant that the learned trial Judge was wrong in law in rejecting the defence of Alibi put up by the Appellant.
In his response that Learned Counsel for the Respondent submitted that the Appellant told police in his extrajudicial statement that he was at work in Warri when the incident took place. He named one chief whose name he said he does not know and one David as persons that were with him. But that he did not state the period of time he was engaged at work.
Learned Counsel for the Respondent submitted that the Appellant’s Alibi is vague. He went further that it is only when the Alibi is specific as to where exactly the accused was at the time the incident took place that the question as to whether it was investigated by the police is made an issue. He relied on the following cases:-
– NJOVENS VS STATE (1998) ALCR PAGE 24
– BALOGUN VS STATE (2001) 94 LRCN PAGE 277.
The finding of the learned trial Judge that the defence of Alibi raised by the Appellant was not properly raised was referred to by Learned Counsel for the Respondent and he contended that the learned trial Judge did not believe the defence put up by the Appellant.
It was also submitted that the evidence of prosecution witnesses that the Appellant was seen at the scene of crime makes the credibility of the defence raised by the Appellant an issue.
He relied on the following cases: –
– ESANGBEDO V STATE (1989) 1 ACLR PAGE 109.
– BALOGUN VS OGUN STATE (2001) 94 LRCN PAGE 277.
– NJOVENS VS STATE (SUPRA)
On this score, the Learned Counsel for the Respondent urged this Court to discountenance the submission of Learned Counsel for the Appellant.
In his Appellant’s reply brief of argument the Learned Counsel for the Appellant reiterated his earlier submission. He submitted that the Respondent had no answer to the appellant’s point made on Alibi.
It was also submitted that where an accused has given sufficient particulars, the police has a duty to investigate it. He relied on the case of:- ONUCHUKWU VS STATE (1998) 4 NWLR PART 547 PAGE 576
He finally urged that the argument of Respondent?s Counsel be discountenance and allow the appeal.
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 V THE STATE (Supra).
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 7th accused person at the lower Court. He was charged along with 7 others on a two count information of conspiracy to commit murder and murder alleged to have been committed on the 17th day of May 2011 at Okwidiemo Town.
The Appellant put up a defence of Alibi in his statement to the police when he was arrested. The alibi so raised was not investigated by the police.
The Appellant made statement to police i.e. Exhibit ‘P’ at Pages 72 – 73 of the Records of Appeal where he stated thus:-
‘I know one late Jonathan Akpome. I am youth of Okwidiemo Community. I am a floor member, the youth Chairman is called Maxwell Iriri. The youth President is called ‘Igbegue Fredrick’. I was not in the community on 17th May 2011 when the late Jonathan Akpome was killed.
I was identified by the brother to late Jonathan Akpome to be among those that killed him. It is not true that I was around when Late Jonathan Akpome was killed. I did not kill him.
I was at work when the incident took place in my community. The people that were with me are one Chief whose name I do not know but can be identified if see and one David. I did not kill late Jonathan Akpome. I was identified because I am a member of Okwidiemo Community?.
There is no evidence that the Alibi raised by the Appellant was investigated by the investigating police officer. This was acknowledged by the learned trial Judge on page 256 of the Record of Appeal. The learned trial Judge held that the Appellant failed to give detailed account of his whereabout at the time the prosecution alleged that the offence took place.
In this case, I am of the view that the Appellant who gave a detailed statement about his movement as set out earlier in this Judgment cannot be said to have failed to give account of where he was and the person he was with when the offence was committed.
There was no explanation as to why the prosecution did not investigate the Alibi.
I am of the view that it is a cardinal principle of law that no claim of Alibi should be disregarded by the prosecution without a check.
See the following cases:-
– SHEHU VS THE STATE (SUPRA).
– DOGO VS THE STATE (2001) FWLR PART 39 PAGE 1388.
In OYEBOLA VS THE STATE (2008) ALL FWLR PART 402 PAGE 1175 AT 1184 PARAGRAPHS E – F, where it was held among others thus:-
‘It goes without saying that the principle that the prosecution is duty bound to investigate the defence of alibi admits no exception. Evidence of eye witnesses who testified as to the commission of the offence charged and the identity of the offender does not make the rule that alibi must be investigated inapplicable’.
The Learned trial Judge having held that the appellant timeously set up his defence of Alibi and that the prosecution did not investigate the defence of Alibi, the only option open to the Learned trial Judge was to hold that the prosecution has not proved its case against the Appellant beyond reasonable doubt.
I am strengthened in my view above by the decision of the Supreme Court in the case of:- SHEHU VS THE STATE (SUPRA) where it was held amongst others 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 incident. 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 noon and 12.30pm.
The police should have made a careful investigation from the other inmates of the accused abode, his wife inclusive. 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.
Furthermore on this issue, the Learned trial Judge asserted that the Appellant was identified by some of the prosecution witnesses. The Judge herself did not mention which of the prosecution witnesses identified the Appellant.
Also the Learned trial Judge referred to Exhibit ‘P’ and erroneously said the statement contained admissions by appellant that he was identified by the prosecution witnesses as being at the scene of crime. This assertion in my view is wrong because a careful reading of Exhibit ‘P’ would reveal that the Appellant did not mention any prosecution witness in his extra-judicial statement to the police. There was also no identification parade conducted in this matter. The use of the word ‘identify’ in Exhibit ‘P’ can mean no more than that when police came to the village, relations of the deceased took the police to appellants’ houses to locate them for police to effect arrest. This did not suggest that the Appellant was identified at the scene of crime. I am of the view that the word ‘identify’ in Exhibit ‘P’, meant no more than that the relation of the deceased pointed at or showed the appellant to the police so that he could be arrested when police came inside the community.
But assuming the appellant was present at the scene of crime which he promptly denied. It is trite law that mere presence at the scene of a crime does not as a matter of law render the person so guilty of the crime. There must be clear evidence that either prior to or at the time of the commission of the offence the person present did something or omitted to do any act such as aiding or abetting within the purview of Section 7 of the Criminal Code to facilitate the commission of the offence or the case against the person present falls within the vicarious responsibility under Section 8 or Section 9 of the Code.
See: – YAKUBU MOHAMMED VS THE STATE (1980) ALL NLR PAGE 138, (1980) 3 ? 4 SC PAGE 56.
It must not be forgotten that the appellant set up a defence of Alibi, he stated that he was not at the scene of crime and that he was at Warri when the offence was being committed. Unfortunately the Alibi was not investigated by the police.
In my humble view the case of the Appellant did not fall within the provisions of Section 7 of the Criminal Code which reads thus:-
(7) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and may be charged with actually committing it that is to say ?
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another to commit the offence;
(d) Any person who counsels or procures any other person to commit the offence.
Consequent upon the foregoing this issue is hereby 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 in hand is a capital offence and conviction carries a sentence of death without any option. Therefore care ought to be taken in ensuring that the evidence produced by the prosecution unquestionably point to and unmistakably at the guilt of the accused person.
It was stated that there was evidence before the learned trial Judge that Okwidiemo Community was split into two warring factions. There were those alleged to be armed robbers and kidnappers led by the deceased and of which PW1, PW2, PW3 and PW5 are supporters. Those who opposed them are the youths and elders of the community of which the Appellant happens to be part. 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 oppose them.
He referred to the evidence of PW3 before the lower Court to support the contention that Okwidiemo Community is spilt into two factions. It was submitted on behalf of the Appellant that the general assertion that PW1 – PW5 are eye witnesses did not constitute evaluation or proper evaluation of evidence of the said witnesses. It was contended that it is erroneous to claim that the PW1 – PW5 were eye witnesses.
The Learned Counsel for the Appellant submitted that the two boys allegedly beaten up tied up and cut with cutlasses were in the best position to tell the Court who beat them, tied them and cut them with cutlasses. He went further that the prosecution did not call any of the alleged boys. It was contended that the consequence of the two boys allegedly beaten up is that, had the prosecution called them their evidence would have been unfavourable to the prosecution’s case. He relied on the case of SUNDAY VS STATE (2010) ALL FWLR Part 548 Page 874.
It was also contended on behalf of the Appellant that the evidence of the prosecution witnesses is replete with inconsistencies and contradictions which rendered their evidence unreliable.
The Learned Counsel for the Appellant submitted 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.
He finally urged that this appeal be allowed and the conviction of the Appellant set aside.
In his response, the Learned Counsel for the Respondent submitted that the trial Court was right when it held that having regard to the evidence on record that the Respondent proved the offences of conspiracy to murder and murder against the Appellant 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 SC Page 194 at 219 – 220.
He stated that it is trite law 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.
(c) By circumstantial evidence.
He relied on the following cases:-
– OGBA VS STATE (1992) 2 NWLR Part 222 Page 146;
– OLADIPUPO VS STATE (1993) 2 NWLR Part 590 Page 253;
– EDAMINE VS STATE (1996) 3 NWLR Part 58 at Page 530 at 531;
– OGUONZEE VS STATE (1998) 58 LRCN Page 3512 at 3551;
– EMEKA VS STATE (2001) 4 NWLR Part 734 Page 656 at 683;
– OWHORUKE VS C.O.P (2015) Part 245 LRCN Page 35;
– JULIUS ABIRIFON VS THE STATE (Supra).
In respect of the offence of murder, the Learned Counsel for the Respondent submitted that in a charge of murder, 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 after the act.
(c) The act or omission on the part of the accused directly causing of the deceased, and
(d) The intent to kill or to do grievous bodily harm; or to do an act or make omission likely to endanger human life while pursuing an unlawful purpose.
He submitted that the above four conditions must co-exist and where one of them is absent the charge will fail. He relied on the following cases:-
– OWHORUKE 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.
Concerning the offence of conspiracy, Learned Counsel relied on the following cases:-
– OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39-40
– PATRICK NJOVENS VS THE STATE (1973) 5 SC Page 17.
It was submitted that for the prosecution to succeed in a charge of conspiracy, it has to prove:-
(a) An agreement by two or more persons 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 acts.
The Learned Counsel argued that there is no direct evidence of conspiracy between the Appellant and the other accused persons to commit the substantive offence. In convicting the Appellant, the learned trial Judge inferred conspiracy from the proved facts of murder.
He stated that the evidence of PW6, a police officer, who took the body of Jonathan Akpome to General Hospital where PW7 performed post mortem examination on the body of the deceased.
On whether it was the act of the Appellant that led to the death of the deceased, it was submitted that the evidence of PW1, PW2, PW3, PW4 and PW5 gave an account of the role played by the Appellant on the deceased with lethal weapons that led to the bodily injury which resulted in the death of the deceased.
He contended that the nature of the weapon used on the deceased clearly shows an intention on the part of the assailants to kill or do grievous bodily harm on the deceased Jonathan Akpome. He relied on SECTIONS 7 AND 8 OF THE CRIMINAL CODE LAW CAP 21 VOL. 1. LAWS OF DELTA STATE OF NIGERIA 2006, AND ALARAPE VS STATE (2001) 5 NWLR PART 705 PAGE 79.
The learned trial Judge relied on the evidence of PW1 to PW5 in convicting the Appellant.
On the issue of inconsistencies and contradictions referred to by Learned Counsel for the Appellant, the Learned Counsel for the Respondent submitted that they are mere discrepancies that do not affect the substance of the case. He relied on the following cases:-
– AGBO VS STATE (2006) NWLR Part 977 Page 545;
– GOLDEN DIBIE VS STATE (2007) 3 SCNJ Page 160 at 170 – 178;
– OGBU VS THE STATE (2007) 2 SCNJ at Page 334 – 335;
– AKPA VS THE STATE (2010) Vol. 8 L.R.C.N.C.C. Page 70.
On the issue of whether the 1st – 5th prosecution witnesses are tainted witnesses, it was submitted on behalf of the Respondent that the fact that the deceased is a blood relation of any 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 H – O;
– OLALEKAN VS STATE (2002) FWLR Part 91 Page 1605.
In the Appellant’s reply brief of argument, the Learned Counsel reiterated his earlier submissions and contended that ingredients of the offence of murder was not established and once that is the position the accused/Appellant will be entitled to an acquittal. He relied on the case of: – NJOKWU VS STATE (2013) 9 NWLR Part 1360 at Page 417.
It was submitted by Counsel for the Appellant that the trial Judge did not evaluate the evidence properly. He relied on the following cases:- AKINBISADE VS STATE (2006) 17 NWLR Part 1007 Page 184 at 211 Paragraph H.
It was also submitted on behalf of the Appellant that the evidence of prosecution witnesses contains material contradictions which the learned trial Judge overlooked. He relied on
– EGWUMI VS STATE (2013) 13 NWLR Part 1372 at Page 525 at 562-563 Paragraphs H – A;
– AL-MUSTAPHA VS STATE (2013) 17 NWLR Part 1383 Page 350 particularly at Page 403 Paragraph G.
In conclusion, the Learned Counsel for the Appellant urged that the arguments of the Respondent’s Counsel be discountenanced and allow this appeal.
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 concisely 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).
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;
– OGBU VS STATE (1992) 2 NWLR Part 222 Page 146;
– EMEKA VS THE STATE (2001) 14 NWLR Part 734 Page 666 at 683.
– ITU VS STATE (2016) 5 NWLR Part 1506 Page 443 at 465 – 466 Paragraph H – B Page 468 Paragraphs A – B.
The Appellant and other accused persons were arraigned before the lower Court on 28th of March 2012 on two count charge of conspiracy to commit murder punishable under Section 324 of the Criminal Code Cap 21 Volume 1 Laws of Delta State of Nigeria 2006 and Murder punishable under Section 319(1) of the Criminal Code Cap C 21 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 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:-
– KAYODE VS THE STATE (2016) L.P.E.L.R 40028 (SC).
– PATRICK NJOVENS VS THE STATE (Supra);
– GARBA VS C.O.P (2007) 16 NWLR Part 1060 Page 378 at 400;
– YAKUBU VS THE STATE (2014) L.P.E.L.R 22401 (SC);
– OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 ? 40;
– SULE VS STATE (2009) 17 NWLR Part 1169 Page 33.
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 the accused persons on trial.
(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 THE 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 unequivocally point to the guilt of the accused person.
It is necessary at this point to examine the state of affairs in Okwidiemor 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.
The evidence at the lower Court was that Okwidiemor 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.
The PW3 at page 203 paragraphs 2 and 3 of the record of appeal testified among others as follows:-
it is correct that before 17th day of May 2011, there has been dispute between the deceased and Chief Smart Iriri and some of the youths. There are two factions, in Okwidiemor, one supporting my husband and the other not supporting my husband the deceased.
Believe Ore is not from Okwidiemor. He is a worker at the site. Victor Osieyor is from Okwidiemor. He is on the side of my husband. Maxwell Iriri is also on my husband’s side, PW2 is also on my husband’s side.
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 – PW5 are members of the gang led by the deceased ought to have been taken into consideration as the witnesses clearly have the interest of punishing their opponent in the community who regard their group as armed robbers and kidnappers.
The learned trial Judge did not appear to have taken into account the surrounding circumstances and prevailing atmosphere in Okwidiemo Community where the offence was allegedly committed.
At page 278 of the record of appeal, 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 for 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) The 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 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.
As it shall be seen later in this Judgment, what the learned trial Judge said were proved were not supported by admissible 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 cutlasses. This is not supported by admissible evidence on the record of appeal.
The said two boys were in the best position to tell the Court who beat them, tie them and cut them with cutlasses.
The consequence of failure to call the alleged two boys 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 eye witness that ought to be called by the prosecution was not called, there is a presumption of withholding evidence against the prosecution as such evidence will be unfavourable to them.
The PW1, PW2, PW3, PW4 and PW5 who testified at the lower Court did not give evidence that they were present when the boys were allegedly beaten up, tied up and cut with cutlasses.
In effect, the PW1 – PW5’s testimony on this issue is hearsay evidence. The lower Court was therefore wrong to have relied on hearsay evidence.
(a) Furthermore, the record of appeal showed that the evidence of the prosecution witnesses which the learned trial Judge relied upon is replete with inconsistencies and contradictions which rendered the evidence of the witnesses unreliable, for example, giving account as to what happened when PW1, PW2, PW3 and the deceased arrived at the alleged scene of crime, PW1 at page 191 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 he Jonathan is actually the person that they are looking for. The 8th accused person ordered his boys who had battle axe, cutlass and gun to attack Jonathan Akpome.’
The evidence of PW1 above was contradicted by the testimony of other witnesses.
(b) PW2 (the brother of the deceased) in his evidence at page 195 of the Record of Appeal stated thus:-
‘When we met the boys tied down, my brother tried to ask 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 dey waste time.’ Festus Egitie now used cutlass to cut my brother Jonathan on his upper hand.
By the evidence of PW2, the order to attack the deceased did not come from the 8th accused, who also did not utter a word before the alleged attack. The PW1’s evidence painted a picture of events totally different from that painted by the PW2. The above 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 the above evidence of either PW1 and PW2 who claimed that the 8th accused ordered the attack on the deceased or that he said anything at the time they arrived at the scene.
(d) As for PW4, her evidence is as follows:-
‘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.’ (See page 206 of the Record of Appeal).
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.’
In view of the foregoing, I am of the firm view that these contradictions in the evidence of 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.
Furthermore, one of the ingredients of the offence of murder is that the accused participated in committing the murder. Presence at the scene of crime cannot amount to conviction on murder. Proving that the accused took part in inflicting injury which led to the death of the deceased is a duty for the prosecution and this must be proved beyond reasonable doubt.
In the instant case, the evidence of the prosecution witnesses as to whether the Appellant took part in inflicting injury on the accused is contradictory and unreliable and it raises doubt which I resolved in favour of the Appellant.
It is trite law that mere presence at the scene of murder does not amount to guilt of the accused person. In the case of:- YAKUBU VS STATE (1980) 3 – 4 SC Page 84 at 44, it was held that:-
.mere presence and callousness at the scene of the crime does not as a matter of law render the person so present or callous guilty of the crime. There must be clear evidence that either prior to or at the time of the commission of the offence, the person did something or omitted to do any act such as aiding and abetting within the purview of Section 7 of the Criminal Code to facilitate the commission of the offence.
On pages 95 – 96, the Court held thus: In my view, to render such a person liable for the offence, it must be shown that being present, he gave some encouragement to the principal offender or that some circumstances exist upon which encouragement by him can be inferred.
None of the circumstances mentioned in the above case has been shown to exist in the instant case. It is therefore wrong for the learned trial Judge to convict the Appellant of murder.
The other reasons why the conviction of the Appellant will not be allowed to stand are that
(a) the extra-judicial statements of the witnesses Exhibits A, B, C and D gave the name of one Michael Iriri as being at the scene of crime. There is no evidence that any identification parade was conducted linking the Appellant to the name ‘Michael Iriri’.
The Appellant did not admit that he is known as Michael Iriri.
(b) The evidence of PW1 which is contained at pages 190 – 191 of the record of appeal showed that the identification of the 7th accused person was done in the open Court in the course of testimony. This procedure was held by the trial Judge to be unacceptable in discharging three accused persons in this case.
(c) in Exhibit ?B? PW2 in giving the names of persons who attacked the deceased stated as follows:-
‘I saw some of the youths ambushed him and cut him with cutlass, they are Festus Egitie, Josiah Omayerue, John Koyidama, Sedrack Oryisen, David Etefia, Israel Etefia, Michael Iriri Nasawarie Iriri ‘(See page 34A of the Records of Appeal).
In his evidence in Court, the PW2 testified thus:-
‘Amongst the youths, I met Festus Egitie, Michael Iriri and Nasawarie Iriri, Josiah Omayerue and other boys whom I could not remember their names that day. I can identify the persons mentioned – Michael Iriri is also known as Ediri.
He is the 7th accused person. Nasawarie Iriri is also known as David Iriri, he is the 4th accused person, Josiah Omayerue is the 2nd accused. (See page 192 of the Records of Appeal).
The learned trial Judge in discharging the 1st, 2nd and 4th accused persons identified by PW2 above rejected PW2 identification evidence thus:-
‘There is no piece of evidence before me that the 1st, 2nd and 4th accused were identified at all at the police station. The evidence before me revealed that the identification of 1st, 2nd and 4th accused persons as well as linking them with the names mentioned in the extra-judicial statement of the prosecution witnesses were done in the course of the testimony of the prosecution witnesses. This is not acceptable.’
In my humble view, the PW2’s identification evidence which was rejected by the Court in discharging 1st, 2nd & 4th accused, is same as the identification evidence against the Appellant. There is no evidence of any identification linking the Appellant to the name Michael Iriri at the police station.
Having rejected the prosecution’s evidence of identification to reach a verdict of acquittal for the 1st, 2nd and 4th accused persons, the Court cannot rely on same evidence of identification to convict the Appellant.
In ONUCHUKWU VS STATE (1998) 4 NWLR Part 547 Page 596, the Supreme Court held among others thus:-
‘Strangely enough, the Court below did not regard the evidence of PW1 strong enough to sustain the conviction of the 7th accused person .. but the Court relied on the evidence of same witness in sustaining the conviction of the present Appellant. A case of contradiction or double standards.’
The extra-judicial statements of the prosecution witnesses are not evidence on which the Court can rely to base a conviction.
In ATTAH VS STATE (2010) All FWLR Part 540 at Page 1224, the Court held thus:-
any written statement in possession of the prosecution which was made by a witness called by the prosecution and relates to any matter on which the witness has given evidence, such a statement is not evidence of the facts contained in it ‘
I am therefore of the view that the learned trial Judge misdirected himself when he held at page 273 that Exhibit ‘D’ PW3’s extra-judicial statement fixed the Appellant at the scene of the crime as the said Exhibit is not evidence of facts contained in it.
No identification parade was carried out for the Appellant to be identified by PW3 and linked to the name mentioned by PW3 in her extra-judicial statement Exhibit ‘D’. Identification of the Appellant from the witness box in Court is not a valid identification. This method of identification was rejected by the learned trial Judge when discharging the other accused persons on pages 270 – 271 of the record of appeal.
I cannot conclude this Judgment without looking at the level of hatred we have for each other in this country Nigeria. There is so much interethnic animosity and hatred for each other in this country. The PW3 testified among others at the lower Court that:-
‘It is correct that before the 17th 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 Okwidiemo, one supporting my husband and the other not supporting my husband, the deceased.’
In view of the fundamental division between the parties in Okwidiemo, 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.
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.
It is unfortunate that a person lost his life in the criminal act but it is a cardinal principle of justice that conviction could only follow where the charge against the accused person has been proved beyond reasonable doubt. It is my view that the doubt which manifested itself in the conflicting evidence of the prosecution witnesses must be resolved in favour of the Appellant.
In conclusion, I am of the view that the count of conspiracy to murder and murder was not proved against the Appellant.
In view of the foregoing, this Issue No. 2 is 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, the Judgment of the lower Court in Charge No – HOR/3C/2012 Between – THE STATE VS (1) JOHN JAFUWA (1) JOSIAH OMAYERUE (3) FESTUS EGITIE (4) DAVID IRIRI (5) ALEX AKPALLALA (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (i.e. Appellant) (8) CHIEF KINGS IRIRI delivered on the 18th day of December, 2013 is hereby set aside as far as EDIRI IRIRI is concerned.
In its place, the Appellant EDIRI IRIRI is hereby discharged and acquitted.
Appeal allowed.
PHILOMENA MBUA EKPE, J.C.A.: I read in advance the draft judgment just delivered by my learned brother J. O. BADA, JCA. I agree entirely with the reasoning and conclusions reached in resolving the two issues raised by both parties in the determination of this appeal.
Having resolved that the doubt manifested itself in the conflicting evidence of the prosecution witnesses in favour of the Appellant. It is my ardent view that that the count of conspiracy to murder and murder was not proved against the Appellant. Therefore issue No. 2 is also resolved in favour of the Appellant as against the Respondent
Consequently therefore, the judgment of the Lower Court in Charge No. H0R13c12012 ? Between: THE STATE VS. (1) JOHN JAFUWA (2) JOSIAH OMAYERVE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (i.e. AppeIlant) (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. EDIRI 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 18th 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 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)
