EGBUOGU v. STATE
(2022)LCN/16443(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/OW/12C/2021
Before Our Lordships:
James Gambo Abundaga Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
OSCAR EGBUOGU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
MEANING OF CONFESSION OR CONFESSIONAL STATEMENT
In the case FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 at 325, the Supreme Court had this to say on what confession or confessional statement entails.
“The conglomerate definitions merged to the words/phrases, “confession” “confessional statement” by the Evidence Act and the case Law, refer to an admission made at anytime by a person charged with a crime suggesting or stating that he committed the offence. ADEMOLA SAMUEL BOLA, J.C.A.
MEANING OF CONFESSION
Ariwoola JSC in the case State V. Ahmed (2020) 14 NWLR (1743) 1 at 21 defined confession as follows:
“A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the interference that he committed the crime and this includes both extra-judicial and Judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. See Section 28 of the Evidence Act 2011, Idowu Okanlawon V. The State (2015) 17 NWLR (1489) 445.” ADEMOLA SAMUEL BOLA, J.C.A.
POSITION OF LAW ON CONFESSION OR CONFESSIONAL STATEMENT
Without doubt, for a statement to be qualified to be called a confessional statement, the accused must have admitted to committing the offence. The admission must be positive and unequivocal. ADEMOLA SAMUEL BOLA, J.C.A.
WHETHER THE CONFESSIONAL STATEMENT OF AN ACCUSED CAN BE ADMISSIBLE AGAINST A CO-ACCUSED WHO DID NOT ADOPT THE CONFESSIONAL STATEMENT
Arowoola JSC in Jimoh V. State (2014)10 NWLR (Pt. 1414) 105 at 139 held as follows: “The law is that where more person than one are jointly charged in a criminal offence and a confession made by one or such persons in the presence of one or more of the other person so charged is given in evidence, the Court should not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted such statement by words or conduct.” Alarape V. State (2001) 2 SC 114; Wakala V. State (1991) 8 NWLR (Pt. 211) 522
Prior to Ariwoola JSC’s decision the Supreme Court per Peter–Odili JSC in Adeleke V. State (2013) 6 NWLR (Pt. 1381) 556 at 584 held as follows:
“The rule that evidence of a co-accused is not admissible against other accused persons is not a general rule that is taken hook, line and sinker without exception. Where there is a link or nexus from the content of the statement with a strong connection from other independent evidence then the exception is accepted as making the general rule aforesaid give way for the reality on ground” ADEMOLA SAMUEL BOLA, J.C.A.(
THREE METHODS OF PROOF OF A CRIMINAL OFFENCE BY THE PROSECUTION IN CRIMINAL TRIAL.
It is settled law that there are three methods of proof of a criminal offence by the prosecution in criminal trial. They are:
“1. By voluntary confessional statement of the accused person or persons
2. By circumstantial evidence which must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence; or
3. By evidence of eye witness or witnesses otherwise known as direct evidence.” ADEMOLA SAMUEL BOLA, J.C.A.
POSITION OF LAW ON CIRCUMSTANTIAL EVIDENCE AND GUILT OF AN ACCUSED PERSON
Ogundare JSC in Adepetu V. State (1998) 9 NWLR (Pt. 565) 185 at 207 held:
“In drawing an inference of guilt of an accused person from circumstantial evidence however great care must be taken not to fall into serious error. It follows therefore, that circumstantial evidence must always be narrowly examined, as this type of evidence may be fabricated to cast suspicion on innocent persons. Before circumstantial evidence can form the basis for conviction the circumstantial evidence must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender”. ADEMOLA SAMUEL BOLA, J.C.A.
WHETHER SUSPICION CAN TAKE THE PLACE OF LEGAL PROOF
Suspicion no matter how strong cannot take the place of legal proof. See the cases of Babalola V. State (1989) NWLR (Pt.115) 264 at 281; Abieke V. State (1975) 9–11SC 97. ADEMOLA SAMUEL BOLA, J.C.A.
WHETHER SUSPICION CAN TAKE THE PLACE OF LEGAL PROOF
It is equally settled that suspicion no matter how strong it cannot take the place of legal proof. Items of evidence raising suspicion which put together do not have the quality of being corroborative evidence to ground a conviction for a criminal offence. See Udo V. State (2014) 12 NWLR (Pt. 1422) 548 at 560- 561; State V. Ogbubunjo (2001) 2 NWLR (Pt.698) 576. ADEMOLA SAMUEL BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court sitting at Owerri Judicial Division Coram E.F. Njemanze J. which judgment was delivered on 25th September 2020 wherein the Defendant/Appellant was convicted for murder and was sentenced to death accordingly.
Aggrieved with the decision of the trial Court, the Appellant appealed to this Court.
The Notice and Grounds of Appeal was filed on 15/10/2020. The Record of Appeal was transmitted to this Court on 20/1/2021 while the Supplementary Record was transmitted on 8/7/2021. The Appellant’s Brief of Argument was filed on 24/2/2021. The Respondent’s Brief was deemed filed on 27/1/22.
BACKGROUND FACTS
The prosecution’s case stemmed from the allegation that the accused person and others at large in charge No. HOW/105C/2016 including the Appellant murdered one Chinonso Onyejiaka also known as “Ishinawambe.” The matter was prosecuted on a one Count amended charge consisting of the following:
STATEMENT OF OFFENCE
Murder contrary to Section 319(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963 as applicable in Imo State of Nigeria.
PARTICULARS OF OFFENCE
Chikwado Iheanetu alias Bolingo, Oguike Junior Opara alias Bruno, Ifeanyi Eze Oscar Egbnogu, and Francis Emeka alias Sky and others at large on or about the 23rd day of February 2016 at Oparanozie Street in the Owerri Judicial Division murdered one Chinonso Onyejiaka.
The prosecution called two witnesses to establish its case. The Defendants called four witnesses which consisted of the four Defendants who testified in defence of themselves. At the conclusion of trial, judgment was delivered. The Appellant was convicted of the offence of murder and was sentenced to death accordingly. One of the Defendants was discharged. Two other Defendants were found guilty and sentenced to death as well.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF
In his Brief of Argument, the Appellant distilled one issue for determination. It is
“Whether the prosecution proved the case of murder contrary to Section 319(1) of the Criminal Code Cap 30, Vol. II Laws of Eastern Nigeria 1963 (applicable in Imo State) beyond reasonable doubt against the 3rd Accused/Appellant” (Grounds 1-5 of the Notice and Grounds of Appeal)”.
ARGUMENT OF ISSUES
Emeka Nwagwu SAN submitted that by Section 135(1) of the Evidence Act 2011, the burden of proof is on the prosecution and the standard of proof in a criminal case is proof beyond reasonable doubt. That proof beyond reasonable doubt was not necessarily beyond shadows of doubt.
That the prosecution relied on the confessional statement of the 1st, 2nd and 3rd accused persons and the evidence of the PW2, the eye witness.
Counsel submitted that it was the duty of prosecution to establish a case against the accused by available evidence sufficient to prove the guilt of the accused beyond reasonable doubt. That where an accused person admits the commission of an offence through his voluntary confessional statement, the prosecution is relieved of any further duty of proof.
Counsel further submitted that Exhibit 16 made by the 3rd accused (Appellant) was not and could not be a confession or a confessional statement and the Appellant never admitted the crime.
That before a confessional statement could result in the conviction of an accused, it must be unequivocal in the sense that it leads to the guilt of the accused person. He referred to the case Solola V. State (2005) 2 NWLR (Pt. 973) 460 at 498. It was submitted that Exhibit 16 exonerated the Appellant. It created doubt and the lower Court should have given the Appellant the benefit of doubt. He urged the Court to apply necessary tests to determine whether the confessional statement could be relied on to ascertain its truth. The case Ugboji V. State (2018) 10 NWLR (Pt. 1627) 347 at 370–371 was cited.
Counsel argued that the trial Court did not painstakingly examine Exhibit 16 (the purported confession of the Appellant) nor was it evaluated viz-a-viz the testimony of the PW1 and PW2. That the trial Court did not consider the effect of Exhibit 20 (police report) on the alleged witness account of PW2 who it was submitted was not and could not be an eye witness in view of his own report to the police.
That there was no incriminating evidence against the Appellant in Exhibit 16. That Exhibit 16 established a legal doubt that should have been resolved in favour of the Appellant.
The Appellant never adopted the confessional statements of the 1st and 2nd accused persons. That Exhibit 16 was not admitted as a confessional statement at the trial neither did the Appellant embark on trial within trial.
It was submitted that conspiracy and membership of secret society upon which the conviction was based were not contained in the one Count charge of murder. The charge did not contain such details for the accused to prepare for that defence. The Appellant did not get a fair trial and the charge was in breach of the constitution.
It was submitted that the PW2 was not an eye witness but a tainted witness.
It was argued that the police report – Exhibit 20 substantially contradicted the evidence of the PW2 on material facts. Exhibit 20 concluded that the deceased was killed by unknown person. That the person who murdered the deceased was a material fact in the trial.
It was asserted that the PW2 was a tainted witness. That a tainted witness was either an accomplice or a witness who has interest to defend or purpose to serve in a case in which he or she was called upon to give evidence. He referred to the case Oguonze V. State (1998) 5 NWLR (Pt. 551) 521; Ojo V. Gharoro (2006) 10 NWLR (Pt. 987) 173, 209–210.
It was argued that the PW2’s evidence consist of bias and hatred for the Appellant and other accused persons. Counsel urged the Court to expunge the evidence of the PW2 at the trial.
Concluding, the Appellant’s Counsel argued that Exhibit 16 was not confessional. That the trial of the Appellant was unconstitutional having been conducted in breach of the rules of fair hearing under Section 36(1) (a) of the 1999 Constitution of Nigeria (as amended). Counsel urged the Court to allow the appeal.
RESPONDENT’S BRIEF OF ARGUMENT
The Respondent’s Counsel formulated four issues for consideration and determination. The issues are as follows:
1. Whether the trial Court was right in holding that the charge of murder preferred against the Appellant was proved beyond reasonable doubt (Ground 5).
2. Whether the trial Judge was right when he held that the PW2 was an eye witness to the incident that took place at the Tip Top Hotel, Owerri as to the time the deceased was dragged to Umezuruke/Oparanoze street junction where the deceased was killed. He identified 1st, 2nd and 3rd accused person, Duncan, Nokia and some others he saw at Tip Top Hotel, Owerri that night” (Ground 2).
3. Whether the learned trial Judge was right in treating Exhibit 16 credited to the Defendant (Appellant) is (sic) not a confessional statement (Ground 1).
4. Whether the learned trial Judge was right when he held in the course of judgment that “one striking features (sic) in this case is that the accused persons save 4th accused are all members of Black Axe secret cult. The 1st, 2nd and 3rd accused persons and other members of their cult now at large featured prominently at the Tip Top Hotel same nights. Exhibits 4, 16 and 18 depicts (sic) and show that all members of Black Axe members who appeared at Tip Top Hotel on that fateful day on 16/2/2016 and time were there because of the presence of the deceased, Samenta, Dedan and Robbins who are Vickings Secret Cult Group a River Group” (Ground 3 and 4).
ARGUMENT OF ISSUES
ISSUE ONE:
On this issue, it was submitted that the prosecution proved its case against the Appellant beyond reasonable doubt and the trial Judge was right to have convicted the Appellant for the murder of the deceased Chinoso Onyejiaka. Refer to the case of Yango & Anor V. C.O.P (1992) 8 NWLR (Pt. 259).
He submitted that for the prosecution to prove a case of murder, the following ingredients of the offence must be proved.
(a) That the deceased died
(b) That the death of the deceased was caused by the accused/Appellant
(c) That the act or mission of the accused which caused the death of the deceased was intentional with the knowledge that the death or grievous harm was its provable consequence.
Referred to the case Solomon Adekunle V. State (2006) 14 NWLR (Pt. 1000) 718 at 736. It was submitted by the Respondent’s Counsel J.U. Iwuagwu (Principal State Counsel) that the above ingredients of the offence of murder were established by the prosecution in this case. He referred to Exhibit 16 the statement of the Appellant to the police, that he identified the deceased to the members of the Black Axe Secret Cult that murdered the deceased, and the Appellant admitted that they all belonged to the Black Axe Secret Cult. He also referred to Exhibit 18, the statement of the 1st accused.
That flowing from Exhibits 16 and 18 the Black Axe Secret Cult members agreed to murder the deceased Chinonso Onyejiaka on the date of the incident. By reason of this, they were all parties to an offence and also have a common intention to commit the act of murdering the deceased.
Counsel referred to Section 8 of the Criminal Code Laws of Eastern Nigeria. It was submitted that the Appellant and two other persons were members of Black Axe had a common intention to carry out the offence of murder against member of a rival cult – the Vikings. It was submitted that the Appellant had a foreknowledge and participated in the plan to kill the deceased having identified the deceased to his co-conspirators and also being a member of the Black Axe confraternity. It was also submitted that a man intends the natural consequences of his acts. Referred to R. V. Nungi (1953) 14 WACA 379.
Further to the above, Counsel submitted that the evidence of the PW2 did positively incriminate the Appellant. It was rare evidence of the PW2 that he saw when the deceased was being dragged out to the place where he was eventually shot dead. That he went to the deceased with his (PW2) torch light and saw him lying in a pool of his blood.
It was submitted that Respondent proved all the ingredients of the offence of murder against the Appellant.
In respect of issue No. 2, the Respondent’s Counsel submitted that when the deceased was murdered on 23/2/2016, the PW2 was an eye witness to the incident that happened on that day. That the PW2 Jude Okolome the investigating police officer who was an eye witness, referring to pages 61–68 of the record of appeal.
That the trial Court after evaluation of evidence found as of fact that the Appellant took part in the murder of the deceased. That the PW2 was eye witness whose evidence remained uncontradicted.
Ground Three: It is whether the trial Judge was right in treating Exhibit 16 credited to the Appellant as a confessional statement. Respondent’s Counsel stated that the Appellant’s Counsel never challenged the voluntariness of Exhibit 16 the statement of the Appellant. The Appellant’s denial of not being the one that shot the deceased would not render the statement inadmissible. Counsel referred to the case Arogundade V. State (2009) Vol. 169 LCRN 17 at 23 where it was held that “a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction.” That Exhibit 16 was tendered without objection. That the PW2 is not a tainted witness. That the trial Judge properly evaluated the evidence placed before him.
On issue No. 4 which relates to the accused persons including the Appellant but excluding the 4th accused person being members of Black Axe secret cult and the findings of the trial Court to that effect, Respondents Counsel referred to Exhibit 16 – statement of the Appellant as contained on pages 37–38 of the Record. Counsel also referred to the statement of the 2nd accused on page 20 of the Record. Counsel submitted that in view of the statements of the Appellant and 2nd accused as contained in their statements (Exhibits 16 and 18) to the police, there was agreement by all the members of the Black Axe Cult members to kill the deceased on 23/2/2016. That it was immaterial who amongst them actually pulled the trigger. Counsel referred to Sections 7 and 8 of the Criminal Code which define who is a party to an offence. It was submitted that the Appellant was a party to the offence of the murder of the deceased. Pursuant to their agreement, they were at the Tip Top Hotel to carry out their revenge mission, the killing of the deceased – their common purpose. Counsel referred to the case of Okosi V. State (1989) 1 ALLR 281 at 298. Therein the Supreme Court held:
“The fact that the 1st Appellant knew that the 2nd Appellant have firearm was enough common purpose to make him equally guilty of murder.”
J. U. Iwuagwu of Counsel to the Respondent urged the Court to resolve the 4th issue in favour of the Respondent. She prayed this Court to dismiss the appeal and affirm the judgment of the lower Court.
I have considered the issues distilled for consideration and determination by the Appellant and the Respondent in their respective briefs, it is the considered view of this Court that the aforesaid issues are captured by the sole issue herein donated for determination by this Court. It is
“Whether upon the sum total of the evidence placed before this Court it could be determined that the prosecution had established its case beyond reasonable doubt to warrant or justify the conviction of the Appellant by the trial Court.”
RESOLUTION OF ISSUE
This appeal is in respect of the conviction and sentence of the Appellant for the offence of murder said to have been committed on 23/2/2016 at Owerri in respect of one Chinonso Onyejiaka. The conviction of the Appellant and two others were predicated on the statement made to the police by the Appellant, the evidence of the investigating police who was said to be an eye witness at the commission of the offence and also the evidence of others and the police report in respect of the investigation conducted.
It was the contention of the Appellant Counsel that Exhibit 16 the statement of the Appellant made to the police was not a confessional statement having not admitted in the statement that he killed the deceased.
It was argued that Exhibit 16 exonerated the Appellant, that it created doubt and the lower Court ought to have given the Appellant the benefit of the doubt.
That the statement called confessional statement did not pass the laid down facts upon which it could be determined that the confession was true.
It was submitted that the trial Court did not painstakingly examine Exhibit 16 – statement of Appellant nor was it evaluated by the trial Court viz–a–viz the evidence of the PW1 and PW2.
It was argued that the PW2 was not an eye witness but a tainted witness.
That Exhibit 16 was not a confessional statement and should not have been utilized as a confessional statement.
The starting point is to determine whether Exhibit 16 – the statement of the Appellant to the police constitute a confessional statement or not. To resolve this issue it is necessary reproducing the statement in Exhibit 16 (Appellants Statement) verbatim as follows:
“I am Mr. Oscar Ugochukwu Egbnogu, a native of Okohia in Ideato South Local Government Area of Imo State.
I am the last born of late Mr. Callistus Ogbuogu and Mrs. Elizabeth Igbnogu in their family of seven. I attended St. Francis Primary School and GTC Owerri. I am a professional driver but I don’t have vehicle for now. I am a member of a Black Axe Secret Cult. I joined the Cult in 2014………. I know Bolingo, Fela, Owute, Pharaoh, Nokians, Lecturer, Jay Z, we all belong to Black Axe Cult. On the 23/02/2016 at about 8 PM when I closed work and went to club 22 at Amaigbo Street, Owerri, Bolingo saw me outside when I went to prepare indomie and excused me, he asked me to follow him to see one boy at Tip-Top Hotel at Oparanozie Street who has been threatening his life, that he must shot him that night. I followed him there and saw the boy at the bar dancing. I identified the boy as Ishinawambe as he is popularly called and asked Bolingo not to harm the boy who also behave as mentally sick person, but he insisted on carrying out his plans. I went outside and saw Nokia whom asked of the plans and he admitted knowledge of everything but also said that he has also advised Bolingo not to shoot the boy, after that I went to Club 22 at Amaigbo Street and informed Ifeanyi Eze who stays in my house at Egbu and suggested we leave the environment immediately but we never left when we heard the gun sound and I immediately collected one hundred naira (N100.00) from Ifeanyi Eze and Amaigbo Street to my house at Egbu. When Ifeanyi Eze later came back he told me that he confirmed that it was Ishinawambe that was shot and he died on the spot. I felt bad. I never planned with Bolingo or Nokia to kill Ishinawambe”
From the above statement, the Appellant admitted he was at the scene of crime Tip Top Hotel with one Bolingo. He followed Bolingo. He (Bolingo) threatened to kill a boy that night. When they got to the Hotel, he saw the boy dancing. He identified the boy as Ishinawambe. He told Bolingo not to harm the boy. He went outside where he (Appellant) saw Nokia whom he asked of the plans and he admitted knowledge of everything but also said that he (Nokia) had advised Bolingo not to shoot the boy. Thereafter he went to Club 22 at Amaigbo Street to inform Ifeanyi Eze who was staying in his (Appellant’s) house at Egbon who suggested they leave the environment. Hardly had they left the Club when they heard the gun sound and he immediately collect N100.00 from Ifenanyi Eze and left for his house at Egbu. Ifeanyi later came and told him that it was Ishinawambe that was shot and he died on the spot. He felt bad, he never planned with Bolingo or Nokia to kill Ishinawambe. He never told Ifeanyi that the boy was among the people that shot him (Appellant) on the leg earlier in the year.
In Exhibit 16 (Appellant Statement) the Appellant never admitted killing the deceased, however he had prior knowledge of the plan to kill the deceased. He was at the scene of crime shortly before the crime or the killing took place. That he tried to dissuade Bolingo from carrying out his intention of killing the deceased.
In the light of the content of Exhibit 16, to all intents and purposes is it a confessional statement taking into consideration the crime the Appellant was alleged to have committed – murder as contained in the charge?
In the case FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 at 325, the Supreme Court had this to say on what confession or confessional statement entails.
“The conglomerate definitions merged to the words/phrases, “confession” “confessional statement” by the Evidence Act and the case Law, refer to an admission made at anytime by a person charged with a crime suggesting or stating that he committed the offence.
Ariwoola JSC in the case State V. Ahmed (2020) 14 NWLR (1743) 1 at 21 defined confession as follows:
“A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the interference that he committed the crime and this includes both extra-judicial and Judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. See Section 28 of the Evidence Act 2011, Idowu Okanlawon V. The State (2015) 17 NWLR (1489) 445.”
Without doubt, for a statement to be qualified to be called a confessional statement, the accused must have admitted to committing the offence. The admission must be positive and unequivocal.
Can it be said that Exhibit 16 is unequivocal and positive as to the Appellant committing the offence? Without any iota of doubt, the statement of the Appellant (Exhibit 16) does not constitute or amount to a confessional statement having not admitted to killing the deceased in the statement. Intrinsically, the document is not a confession and cannot be treated as a confessional statement. The Appellant denied participating in the murder of the deceased.
Exhibit 16 is therefore not a confessional statement upon which the Appellant could be found guilty of the offence of murder of the deceased.
However while the statement never indicated an admission on the part of the Appellant that he pulled the trigger of the gun that killed the deceased, the statement revealed that he (Appellant) was a member of Black Axe Cult Group, who accompanied one Bolingo to the scene of crime where he identified the deceased. That Bolingo told him he was going to kill the deceased even though he tried to dissuade him from killing the deceased, yet he went on to kill him. This fragment of the Appellant’s statement shall be revisited at the later part of the judgment of this Court.
Reading through the judgment of the lower Court, it was discovered that it relied on the statement of the 1st and 2nd accused persons to find the Appellant guilty of the offence of murder. Can the confessional statement of an accused be admissible against a co-accused who did not adopt the confessional statement? There is nothing to show in the record of the proceeding of the lower Court that the Appellant adopted the confessional statement of the 1st and 2nd accused persons now convicted. Arowoola JSC in Jimoh V. State (2014)10 NWLR (Pt. 1414) 105 at 139 held as follows: “The law is that where more person than one are jointly charged in a criminal offence and a confession made by one or such persons in the presence of one or more of the other person so charged is given in evidence, the Court should not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted such statement by words or conduct.” Alarape V. State (2001) 2 SC 114; Wakala V. State (1991) 8 NWLR (Pt. 211) 522
Prior to Ariwoola JSC’s decision the Supreme Court per Peter–Odili JSC in Adeleke V. State (2013) 6 NWLR (Pt. 1381) 556 at 584 held as follows:
“The rule that evidence of a co-accused is not admissible against other accused persons is not a general rule that is taken hook, line and sinker without exception. Where there is a link or nexus from the content of the statement with a strong connection from other independent evidence then the exception is accepted as making the general rule aforesaid give way for the reality on ground”
Is there any independent evidence to link the Appellant with the crime and the statements of the other accused person so as to make the incriminating evidence of the 1st and 2nd accused persons admissible against the 3rd accused/Appellant? This question transports this Court to the evidence of the PW2.
The PW2 acted in dual capacity in the prosecution of this case. He testified being an eye witness who witnessed the commission of the crime. He equally played the role of the investigating police officer. He testified that the crime took place on 23/3/2016 on his way back from work on the aforesaid date, he decided to stop and wait to watch foot ball at the Tip Top Hotel which was to start at 8.45 Pm. He testified that-
“On 21/4/2016 while on investigation to visit the scene of crime, immediately we got to Tip Top Hotel at Oparanoze Street, Owerri, Duncan, the 3rd accused person (Appellant) and one called Lecture on sitting (SIC) were police jumped down from an ash colour Toyota Campry (SIC) Car with Reg. No. LSR 336 AA and ran away …on 28/4/16 we made arrest of one Ifeanyi Eze. He lives with the 3rd accused person (Appellant) at Egbu and used him to monitor police whenever they came around. He made statement under caution and said that Oscar Egbuogu 3rd person (Appellant) told him the day the deceased was killed, that the deceased shot at him early last year and he saw the 1st accused person after the shooting running to Amaigbe Street Owerri.”
It is patently clear that the PW2 in his evidence in chief never testified seeing the Appellant at the locus criminis when the deceased was killed. He did not testify seeing the Appellant shoot the deceased at the scene of crime. In any case, under cross-examination, he testified that the 3rd accused (Appellant) was not present when the crime was committed.
The evidence of the PW2 clearly exculpated the Appellant as being the killer of the deceased. However, the evidence of the PW2 linked the Appellant to being member of the Black Axe Secret Cult which the 1st and 2nd accused persons belonged.
The evidence placed before the lower Court patently reveal the roles of the 1st and 2nd accused person in the termination of the life of the deceased. They were also members of the Black Axe Secret Society. But the evidence of the PW2 cannot be relied on to link the Appellant with the killing of the deceased.
In effect, there is no direct evidence or confessional evidence linking the Appellant with the death of the deceased Chinonso Onyejiaka.
It is settled law that there are three methods of proof of a criminal offence by the prosecution in criminal trial. They are:
“1. By voluntary confessional statement of the accused person or persons
2. By circumstantial evidence which must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence; or
3. By evidence of eye witness or witnesses otherwise known as direct evidence.”
Is there any circumstantial evidence pointing irresistibly to the Appellant as having participated in the death of the deceased Chinonso? This question shall be answered in the light of the evidence placed before this Court by both the prosecution and the defence witnesses.
Going through the evidence of the PW1 Pastor Ifeanyi Onyejiaka, it is clear his evidence does not by any scintilla link the Appellant with the death of the deceased – Chinonso. The evidence of the PW2 does not implicate the Appellant with the killing of the deceased having testified that he did not see the Appellant at the scene of the crime at the material time of the commission of the crime. The Appellant did not adopt the confessional evidence of the DW1, DW2 – the 1st and 2nd accused persons. In their evidence in the Court, the co-accused person did not proffer any evidence linking the Appellant with the murder of the deceased. Rather their oral evidence was a bundle of denial creating doubt as to the involvement of the Appellant in the sordid killing.
Indeed the lower Court leaned heavily on evidence of the PW2-the IPO who said he was an eye witness to the murder, the statement, of the DW1 and DW2 (1st and 2nd accused person) and the statement of the Appellant which the lower Court considered a confessional statement but in the opinion of this Court not a confession.
Does the statement of the Appellant reveal circumstantial evidence linking him with the murder of the deceased. The relevant part of the statement is recapitulated hereunder:
“On the 23/02/2016 at about 8 PM when I closed work and went to club 22 at Amaigbo Street, Owerri, Bolingo saw me outside when I went to prepare indomie and excused me, he asked me to follow him to see one boy at Tip-Top Hotel at Oparanozie Street who has been threatening his life, that he must shot him that night. I followed him there and saw the boy at the bar dancing. I identified the boy as Ishinawambe as he is popularly called and asked Bolingo not to harm the boy who also behave as mentally sick person, but he insisted on carrying out his plans. I went outside and saw Nokia whom asked of the plans and he admitted knowledge of everything but also said that he has also advised Bolingo not to shoot the boy, after that I went to Club 22 at Amaigbo Street and informed Ifeanyi Eze who stays in my house at Egbu and suggested we leave the environment immediately but we never left when we heard the gun sound and I immediately collected one hundred naira (N100:00) from Ifeanyi Eze and Amaigbo Street to my house at Egbu. When Ifeanyi Eze later came back he told me that he confirmed that it was Ishinawambe that was shot and he died on the spot. I felt bad. I never planned with Bolingo or Nokia to kill Ishinawambe”.
Undoubtedly, this excerpt of the extra-judicial statement of the Appellant (Exhibit 16) reveal that he was close to the 1st and 2nd accused person now convicted. He knew the deceased. He followed the 1st accused (Bolingo) to the scene of crime. He (Appellant) was able to identify the boy (deceased) at the scene of crime (Tip-Top Hotel) as Ishinawambe. He saw the boy dancing. He asked Bolingo not to harm the boy but insisted on carrying out his plan. He (Appellant) then left the scene. He was later told that Ishinawambe (deceased) had been shot and he died on the spot. That he never planned with Bolingo or Nokia (1st and 2nd accused/convicts) to kill the deceased.
The above shows clearly that the Appellant was not the person who killed the deceased. But does it show he was neck deep in the death of the deceased? There is no doubt he had inkling and foreknowledge of the plan of the 1st accused/convict to exterminate the deceased in view of his closeness and revelation of the plan by Bolingo. But the statement of the Appellant reveals that he was not agreeable to the plan of Bolingo to kill the deceased.
Suffice it to say no circumstantial evidence was placed before this Court not even the statement of the Appellant (Exhibit 16) could be said to be a strong circumstantial evidence against the Appellant. The evidence on ground does not suggest it was the Appellant who killed the deceased. No potent evidence can be inferred from the statement of the Appellant or any other evidence that the Appellant was participis criminis in the death of the demised Chinonso.
Ogundare JSC in Adepetu V. State (1998) 9 NWLR (Pt. 565) 185 at 207 held:
“In drawing an inference of guilt of an accused person from circumstantial evidence however great care must be taken not to fall into serious error. It follows therefore, that circumstantial evidence must always be narrowly examined, as this type of evidence may be fabricated to cast suspicion on innocent persons. Before circumstantial evidence can form the basis for conviction the circumstantial evidence must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender”.
The Respondent’s Counsel submitted that all the Black Axe Secret Cult members agreed to murder the deceased Chinonso Onyejiama on the date of the incident. That having agreed to kill him by all the members of the Black Axe Cult they were all parties to an offence and also a common intention to commit the act of murdering the deceased. That pursuant to the agreement to kill the deceased, the Appellant and other members of the Black Axe Secret Cult gathered at Tip-Top Hotel at Oparanozie Street to carry out their agreed mission of killing the deceased. Counsel referred to Section 8 of the Criminal Code Cap 30 Vol. 1 Laws of Easter Nigeria.
There is no doubt, the above submission of the Respondent is predicated on a circumstantial evidence. Circumstantial by reason of the Appellant being a member of the Black Axe Secret Cult. Is there cogent compelling evidence convincing enough placed before the Court to establish the inference that the Appellant being a member of the Black Axe cult planned with other members to kill the deceased? Is there any evidence strong enough to suggest or infer or conclude that the Appellant participated in the plan to kill the deceased, that it was the act of the Appellant and no other that caused the death of the deceased? The conclusion was based on the statement of the Appellant to the police that he was a member of the Black Axe secret, cult, that he identified the deceased to the members of the Black Axe secret cult group.
It is the opinion of this Court, that the above premises and inferences of the Respondent are circumstantial. Circumstantial in the sense that they are presumptive and inferential. Are the presumption, inferences cogent, compelling and convincing pointing irresistibly to the Appellant committing the offence? Are they sufficient proof of the charge?
Candidly speaking, the evidence of the prosecution witnesses has failed to satisfy the standard required for circumstantial evidence to warrant the trial Court as well as this Court coming to the conclusion that it points irresistibly to the Appellant having committed or participated in the commission of the offence of killing the deceased. The sum total of the evidence of the prosecution witnesses is not convincing, nor concrete, nor cogent, nor sufficient to conclude that the Appellant committed the offence with which he was charged and convicted of.
From the evidence adduced, it cannot be said that the Appellant formed a common intention with the 1st and 2nd accused person now convicts to prosecute an unlawful purpose in conjunction with others. That is to kill the deceased. The mere fact that he had the foreknowledge is not conclusive that he participated in the plan to kill the deceased. What the evidence has succeeded in doing was to create doubt as to the involvement in the plan to kill the deceased. It was not the act of the Appellant that caused the death of the deceased.
In his Exhibit 16, it was recorded that the Appellant identified the boy as “Ishinawambe” as he is popularly called. Was the identification meant recognizing the boy as Ishinawambe” or that he identified the boy to someone else? The dual meaning creates doubts as to whether the Appellant identified the deceased to the 1st accused (Bolingo) or he (Appellant) recognized the deceased.
The totality of the evidence of the prosecution case was based on suspicion. Suspicion no matter how strong cannot take the place of legal proof. See the cases of Babalola V. State (1989) NWLR (Pt.115) 264 at 281; Abieke V. State (1975) 9–11SC 97.
It is equally settled that suspicion no matter how strong it cannot take the place of legal proof. Items of evidence raising suspicion which put together do not have the quality of being corroborative evidence to ground a conviction for a criminal offence. See Udo V. State (2014) 12 NWLR (Pt. 1422) 548 at 560- 561; State V. Ogbubunjo (2001) 2 NWLR (Pt.698) 576.
The evidence of the prosecution witnesses succeeded in creating doubt. The doubt is accordingly resolved in favour of the Appellant.
The evidence has failed to establish the prosecution’s case beyond reasonable doubt. The conviction of the Appellant by the trial Court without the burden of proof being discharged cannot be sustained in the circumstance.
In the final analysis, the issue formulated by this Court for consideration and determination in this appeal is herewith resolved in favour of the Appellant and against the Respondent.
On the basis of the foregoing, this appeal is allowed. The judgment of the lower Court is set aside. The conviction is quashed. The sentence is hereby set aside. The Appellant is discharged and acquitted.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. He was painstaking in the consideration of the arguments of counsel. His resolution that there is no evidence either direct confessional or circumstantial linking the Appellant with the commission of the offence is indeed incontrovertible. I hereby adopt it in also holding that the appeal has merit, and is hereby allowed, and thus entitles the Appellant to discharge and acquittal.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading the draft judgment delivered by my learned brother Samuel Ademola Bola, JCA. I am in complete agreement with his Lordship in his reasoning and conclusion that this appeal is meritorious and is hereby allowed. The judgment of the lower Court is hereby set aside. The Appellant is hereby discharged and acquitted.
Appearances:
Emeka O. Nwagwu, SAN, with him, C.C. Uchechukwu, O.N. Onyeonoro, F.A. Okpara, and R.A. Nwosu, For Appellant(s)
C. N. Akowudu, (SG/PS Imo State) leading G. Egwuagwu, (Deputy Director Legal Drafting Imo State) and J.U. Iwuagwu, (Principal State Counsel, Imo State For Respondent(s)
