ESONU CHUKWUNYERE v. THE STATE (2014)

ESONU CHUKWUNYERE v. THE STATE

(2014)LCN/7430(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of August, 2014

CA/OW/97C/2013

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; THE DUTY OF THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI ONCE IT IS RAISED

Of course, as rightly argued by the Appellant’s Counsel, once defence of alibi (or any defence for that matter) is raised by an accused person, the prosecution is under obligation to investigate it, and the trial court has a duty to consider it, before coming to its decision. The trial court, in my opinion, had correctly stated the law in this case, when it held on page 82 of the Records of appeal, thus:
“Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of the crime when the crime was being committed; or to rebut the alibi if it was false. See Adio v. The State (1986) 3 NWLR (pt.31) page 714; Onafowoken v. The State (1987) 3 NWLR (pt.61) page 538. It is for this simple reason that an accused in such predicament should and is expected to, at the earliest opportunity, to protest his innocence by intimating the police, who are interrogating him, of his where about”
The above legal principle remains true and compelling as it provide an easy and quick escape door to freedom for an accused, wrongly arraigned, for committing offence. The defence is founded on the common knowledge of finite nature of man, as a terrestrial being, that he can be physically found at only one place at a time. Thus, where or when an accused person raises a defence of alibi, he is simply saying that the prosecution cannot be right, as he could not have been at the alleged scene of crime, having been elsewhere, at the material time of the offence, see Eke v. The State (2011) 3 NWLR (pt.1235) 589; (2011) LPELR – 1133 (SC), See Umani v. The State (1988) 1 NWLR (pt.70) 274; (1988) LPELR – 3357 (SC), pages 14-15, where Nnamani JSC, said:
“it has been settled that since the burden of proving the guilt of an accused person beyond reasonable doubt lies on the prosecution and does not shift, once the defence sets up on alibi, it is for the prosecution to lead evidence to disprove it. But the evidential burden of proof lies on the accused person who sets up such defence. This burden is no more than a duty on the accused person to adduce evidence, which would tend to show that he was some where else other than where the prosecution alleges he committed the crime. Akile Gachi & Ors v. The State (1965) NMLR 333; Oriese Yano and Ors v. The State (1965) NMLR pt.337; Lawrence Ogbodi Odidika v. The State (1977) 2 SC 21, 23 – 24. See also Patrick Njovens & Ors v. The State (1973) NMLR, 391″
In the case of Ayan v. State (2013) LPELR – 29032 (SC) my lord Muhammad JSC said:
“This Court in a seemingly endless chain of authorities has defined the word ALIBI, which it held to be a radical defence, to mean that an accused was some where else at the time of the commission of an offence and not possibly have, at the time, been at the scene to part take in it. See Sowemimo v. The State (2004) 11 NWLR (pt.885) 515 at 526 and Jerome Akpan & Ors v. State (2002) 12 NWLR (pt.780) 189. In particular Aiguroeghian v. The State (2004) 3 NWLR (pt.860) 367 at 401, the Court restated that -“… an alibi means that the accused was some where other than where the prosecution alleges he was at the time of the commission of the offence.”
But as rightly argued by the Respondent in this appeal, the Accused person’s duty to furnish the requisite particulars to predicate the plea of alibi remains cardinal to warrant the need for the prosecution to investigate the claim. The Accused person must go beyond the sweeping statement that, he was else where at the time of the alleged commission of the offence and give detail particulars as to where, in fact, he was, at the material time and who can attest to the fact of his being at the place he claimed at the time in point. Of course, that requires stating a physical, verifiable address and disclosing a living witness(es). The prosecution (police) is not expected to embark on a wild goose chase of the where about of the Accused person at the time of the alleged offence. See Ochemaje v. State (2008) ALL FWLR (pt. 432) 1661; Odu v. State (2011) 5 SCNJ 115. per. ITA G. MBABA, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; IN WHAT SITUATION IS IT NOT NECESSARY FOR THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI RAISED BY THE DEFENDANT

In the absence of such particulars by the Appellant, I think there was nothing for the police to investigate in the name of alibi. The fact that he also gave two conflicting addresses of his residence in Aba, may also have added to the hopelessness of embarking on the investigation of such alleged alibi. In the case of Ochemaje v. State (2008) 15 NWLR (pt. 1109) 57 (2008) LPELR-2198 (SC), the Supreme Court held that
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time.”(Per Niki Tobi JSC). See also Rasaki v. State (2011) LPELR-4859 (CA), Ndidi v. The State (2005) 17 NWLR (Pt.953) 17;
It was also held in that case of Ochemaje v. State (supra) that,
“Investigation is not a necessity, if evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross examination by the evidence of the accused or his witnesses”. See also Odidika v. The State (1977) 2 SC 21 where it was held that, where there is direct and positive evidence of participation, the alibi, if raised, is rebutted by such evidence.
In Aliyu v. State (2013) LPELR-20748 (SC), the Supreme Court again held:
“It should be further reintegrated that it is not every failure of the police to investigate an alibi raised by an accused person that will be fatal to the case of the prosecution. There is nothing esoteric or extraordinary in a plea of alibi which postulates that the accused could not have been at the scene of the crime and only inferentially that he was not there.
Even if it is the duty of the prosecution to check on a statement of alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time, his alibi is thereby logically and physically demolished. See Patrick Njovens and ors v. The State (1973), NMLR 331; Ochemaje v. The State (Supra) at 78; and The State v. Ezekiel Adekunle (1989), CLRN 348″ Per fabiyi JSC. per. ITA G. MBABA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; THE ESSENTIAL INGREDIENTS OF PROOF OF THE OFFENCE OF MURDER AND HOW TO PROVE THE CAUSE OF DEATH

The law is settled on how offence of murder is proved that the prosecution must establish, beyond reasonable doubt, that the accused person caused the death of the deceased, by tracing causal link between the death of the deceased and the act or omission of the Accused person. See the case of the Micheal v. The State (2008) 13 NWLR (Pt.1104) 361 at 377; Kada v. The State (1991)8 NWLR (Pt.208) 134; Galadima v. The State (2013) LPELR-402 (CA).
Of course, it becomes easier and more straight forward, where the deceased died on the spot, soon after injury inflicted on him by the Accused person. And the test will shift to the type of weapon used to inflict the injury and the nature of the attack, and whether the accused intended to cause the death, or cause grievous bodily harm and death resulted from that; See Nwokearu v. State (2010)15 NWLR (Pt.1215) 1; Onia v. State (2006)11 NWLR (Pt.991)267; Adekunle V. State (2006)14 NWLR (Pt.1000)717; Adamu vs. Kano NA (1956) SCNLR 163.
The essential ingredients of proof of offence of murder are also well documented in a plethora of cases; that the prosecution must prove:
1. That death occurred-the person died.
2. That the death resulted from the act/omission of the accused
3. The Accused person caused the death intentionally, or with knowledge that death or grievous bodily harm was the probably consequence of his act/omission. See Sule v. State (2009)19 NWLR (P1.1169) 33; Nkebisi v. State (2010) 5 NWLR (Pt.1188) 471; Mbang v. State (2010) 7 MWLR (Pt.1194) 431; Usman v. State (2011) 4 NWLR (Pt.1233) 1; Uluebeka v. State (2011) 4 NWLR (pt.1237) 358; Akpa v. State (2008) 14 NWLR (pt. 1106) 72; Musa v. The State (2014) LPELR-22912 (CA)
In proving the cause of death or establishing the causal link between the death of the person and the act of accused person, the law permits this to be done either by direct or circumstantial evidence or by confessional statement of the accused person; and for circumstantial evidence, to found the guilt of the accused or be strong enough to infer the guilt, it must be positive and cogent, pointing conclusively and unmistakenly in the direction of the guilt of the accused person. See Emeka v. State (2001)14 NWLR (Pt.734) 66; Nigerian Navy v. Lambert (2007)18 NWLR (Pt.1066) 300; Dele v. State (2011) 1 NWLR (pt.1229) 508. In the case of Chiokwe v. State (2005)5 NWLR (Pt.918) 424, this Court held:
“Thus, the principle of law is firmly settled that where circumstantial evidence adduced, by prosecution is so cogent, positive, overwhelming, and compelling that it irresistibly and conclusively points to the accused as the perpetrator of the offence alleged to have been committed, a court of law would be entitled to infer from such evidence and surrounding circumstances that the accused committed the offence and convict him accordingly on such evidence”. See also Nasiru v. The State (1999)2 NWLR (Pt. 589) 87. per. ITA G. MBABA, J.C.A.

JUSTICES:

ITA G. MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

ESONU CHUKWUNYERE – Appellant(s)

AND

THE STATE – Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Imo State High Court in charge No. HO/13c/2004, delivered on 11/7/2007 by Hon. Justice Ngozi Opara, wherein her Lordship convicted Appellant, for offence of murder and sentenced him to death by hanging.

Appellant (as Accused person) was charged along with Obineche Chukwunyere for the murder of one Beatrice Kwemma by killing her using an axe, contrary to Section 319 of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria. The offence was said to have been committed on 14/1/2002, at Ozara Ihube, Okigwe of Okigwe Local Government Area in Okigwe Judicial Division of Imo State.

Appellant had pleaded Not Guilty to the charge, and in his statement to the police, upon his arrest on 17/1/2002, Counsel said, he raised a defence of alibi. The statement was admitted as Exhibit 4 at the trial. Appellant said the Police refused or neglected to investigate the alibi that he was not at the scene of crime.

A brief facts of the case, at the Court below, showed that the deceased, Beatrice Kwemma, was murdered on 14/1/2002. At about 8:00am Beatrice Kwemma was preparing to go to the farm to harvest cassava. She instructed her grandson, Chijioke Kwemma, to come to the farm later and carry home the harvest. The Prosecution said that it was at that point that Appellant and one Obineche, in company of another person, passed opposite the house of PW1; Appellant was wearing dark glasses and they focused their attention at the house of the deceased as they passed, while the deceased was discussing with her grandson; the deceased later went to the farm, and when PW1 joined her, in the farm, he saw the Appellant cutting the grandmother (deceased) with an axe with one other boy he (PW1) could not identify; the deceased was already down on the ground as Appellant was cutting her with the axe, while the other person was holding her leg. PW1 was terrified and ran to the house of the father’s sister, Catherine Nwakamma, to report. He also reported this to the Village Chief. The villagers trooped out to the farm, but could not see the assailants. They saw the corpse of the deceased lying on the ground, and while they were looking for the killers, in the farm, somebody saw and picked a dark glasses in the farm, which belonged to the Appellant.

PW2 told the Court how he heard the noise about the death of the deceased and went to the Village Chief’s house to hear from PW1 what actually happened; they left to the farm, where they saw the body of the deceased woman lying on the ground; he said that while they were looking for the killers, he picked the dark goggle (glasses), which PW1 confirmed belonged to the Appellant, and he handed it over to the Police.

PW3 was a Medical Doctor. He tendered Exhibit 2 – the Post Mortem report, which stated that the cause of death was a deep laceration, on the left jaw, soft tissue swelling of the scalp, with multiple compound fracture of the skull. In the doctor’s opinion, the cause of death was as a result of brain injury, caused by blunt/sharp object. PW4 was the Investigation Police Officer (IPO).

He tendered the statements of the Appellant, dated 17/1/2002 as Exhibits 4 and 4A. He informed the Court that the eye glasses (goggles) that were recovered were transferred with the original case file to Owerri C.I.D. and were with the Exhibit keeper.

At the close of the prosecution’s case, Appellant gave evidence in his defence as DW1. He called no witness. He claimed he went home (the village) on 13/1/02 and left on 14/1/02 at about 8am. He denied killing the deceased.

At the conclusion of the trial, the trial Court believed the evidence of the prosecution and convicted the Appellant, while discharging the 1st Accused Person, Chineche Chukwunyere. She held:

“Besides, PW1 gave graphic details how the deed was done. He stated that that morning he saw the accused, with one other, walking past their home, discussing. This was several times. Later as he went to bring home harvested cassava by the deceased in the farm, he saw the accused with another, still at large, dealing with the deceased. The unknown man held the deceased by the legs while the accused used an axe to inflict injuries on the head of the deceased. The law is that where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted by such evidence. See the cases of Odidiha vs. The State (1977) 2 SC 21; Patrick Njovens vs. The State (1973) 5 SC 17. From the above, I believe that the Prosecution has provided direct and positive evidence of participation by the accused…”
See page 83 of the Records of Appeal.

Appellant’s Notice and grounds of appeal was filed on 24/2/2012, as per pages 100 to 105 of the Records of Appeal, and he disclosed 8 grounds of appeal. He filed his brief of argument on 1/8/13, which was deemed duly filed on 27/1/14. In the Brief, Appellant formulated four (4) issues for determination, as follows;
1) Whether the learned trial Judge was right to have rejected the defence of alibi properly and timeously raised by the Appellant, inspite of the fact that there were sufficient facts before the trial Court to support the defence of alibi (grounds 5 and 8).
2) Whether the learned trial Judge was right in convicting the Appellant of the offence of murder when the prosecution failed to discharge the burden of proving the guilt of the Appellant beyond reasonable doubt (grounds 4 and 6).
3) Whether the findings of facts by the trial Court, and the decision reached therefrom convicting and sentencing the Appellant to death was not perverse and whether the said decision did not occasion a miscarriage of justice on the Appellant (grounds 1 and 2).
4) Whether the learned trial Judge was right to rely on the evidence of PW1 (Chijoke Kwemma) and convict the Appellant for murder despite the material contradiction between the extra-judicial statement of PW1 to the police and his oral testimony in Court and whether the trial Court can admit in evidence the alleged extra-judicial statements of the Appellant (Exhibits 4 and 4a) which were not voluntarily made, without conducting a trial-within-trial (grounds 3 and 7).”

The Respondent filed its brief of argument on 26/2/14 and raised 4 issues, too, for determination, as follows:

1) whether the defence of alibi avails the Appellant and whether the trial Judge was right to have rejected same (grounds 5 and 8).
2) whether the trial Judge was right in holding that the case against the Appellant was proved beyond reasonable doubt (grounds 4 and 6).
3) whether there were material contradictions between the extra-judicial statement of PW1 and his testimony in Court and whether the trial court can admit in evidence the extra-judicial statement of the Appellant without conducting a trial-within-trial (grounds 3 and 7)
4) whether the findings of the trial court were perverse and whether the decision of the trial court occasioned a miscarriage of justice (grounds 1 and 2).

The Appeal was heard on 12/6/14 when Counsel on behalf of the parties adopted their briefs and urged us accordingly.

On issue 1 Appellant’s Counsel, J.C. Okafor Esq., submitted that Appellant had raised the defence of alibi, timeously, both in his statement to the police, on 17/1/02 and oral evidence in court; that the prosecution had a duty to investigate the same. He argued that the PW4 (IPO) went to Aba on 16/1/2002 and said Appellant lived alone and so he did not find anybody to inquire whether Appellant was in Aba early morning of 14/1/02. He argued that Appellant had not even been arrested as at 16/1/02, to suggest the PW4 was investigating the alibi. He submitted that failure to investigate the alibi was fatal to the prosecution’s case and he relied on the case of Njiokwu Emeni v. State (2001) FWLR (pt. 55) 538 at 546. He noted that the trial court appreciated the mandatoriness to investigate alibi on page 82 of the Records and cited authorities to support same, but, surprisingly, failed to apply it to this case; that that was a grave error in law. He argued that the findings of the trial Court on pages 82 – 83 of the Records, which discounted the need for investigation of the alibi, was perverse, as they did not flow from the evidence adduced. Counsel also relied on the cases of Augustine Onuchukwu & Ors v. State (1998) 4 NWLR (pt. 547) 576, ratio 2; Odili vs. State (1977) 4 SCI; Onafowokan vs. State (1987) 13 NWLR (pt. 61) 538.

He argued that, in the instant case, the failure of the prosecution to disprove of the truth of the alibi asserted by the Appellant was fatal to the prosecution’s case; that it is trite that where the defence of an alibi, put forward by an accused, is not properly and adequately investigated, a conviction reached must be quashed. He relied on R vs. Modem 12 WACA, 224; he said that since Appellant, by virtue of the defence of the alibi, was not at the scene of crime, it raises a presumption that he did, not ipso, facto commit the offence charged on him, and ought to have been discharged and acquitted. He relied on Ukwunnenyi vs. State (1989) 4 NWLR (pt. 114) 131; Udoebre vs. State (2001) 12 NWLR (pt.728) 617.

On issue 2, Appellant submitted that the trial Court was wrong to convict the Appellant when the prosecution failed woefully to discharge the burden of proving the guilt of the Appellant beyond reasonable doubt. He relied on section 139 (1) of the Evidence Act, 2011; Njoku vs. The State (1993) 6 NWLR (pt. 299) 272 at 285; Idowu vs. The State (2000) 7 SC (pt. 2) 50 at 79; (2000) 12 NWLR (pt. 680) 48; Oforlete vs. The State (2000) 7 SC (pt. 1) 80 at 95; (2000) 12 NWLR (pt. 681) 415.

Counsel argued that the prosecution did not prove the three essential ingredients of the offence of murder, namely:
i. That the deceased died.
ii. That the death was caused by the accused person.
iii. That the act or omission of the accused, which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its natural consequence.

He relied on Akpan vs. State (2001) FWLR (pt. 56) 735 and added that the standard of proof remains, “proof beyond reasonable doubt”, as per the case of Ariekwe vs. State (1976) 9 – 10 SC 255; Aiguoreghian & Anor. v. State (2004) 3 NWLR (pt. 860) 367; Calebojo & Anor vs. FRN (2008) 11 NWLR (pt. 1099) 467.

Counsel argued that the PW1 was the star witness for the prosecution and the only professed eye witness, but his evidence were inconsistent and contradictory, when comparing his oral evidence with his extra-judicial statement – Exhibit 1. He submitted that in Exhibit 1, PW1 stated that Appellant and one unidentified person hit the deceased in the farm with an axe and he, in company of other villagers, later met the lifeless body of the deceased, but that in the oral evidence, PW1 told the Court that it was the Appellant who inflicted injuries on the head of the deceased with a stainless axe. He said that that evidence was riddled with numerous inconsistencies and contradictions and so unfit to base the guilt of the Appellant. He also argued that PW1 did not mention the name of the person who picked the Appellant’s dark glasses, at the scene, to the Police; also that PW1 said he was a student, but failed to tell the Court why he was not in school on the date of the offence. Counsel also wondered how PW1, a 1-3 year child, could be so composed – on witnessing the killing of the deceased, did not raise alarm as a spontaneous act! He said that that attitude was not only incredible but also unnatural and totally absurd.

Counsel also argued that the evidence of the prosecution did not supply the requisite ‘intention’, that is, mens rea, by the Appellant to kill the deceased (his aunt) or do grievous bodily harm to her. He relied on the case of Uguru vs. State (1964) All NLR 21; Onovo vs. Queen (1961) 1 SCNLR 56; Amayo vs. State (2002) FWLR (pt. 91) 1571; (2001) 18 NWLR (pt. 745) 430; Abigail Njoku & ors v. The State (2013) 2 NWLR (pt. 1339) 548 at 577.

Counsel argued that the PW2’s evidence was “hearsay” as it was based on what he heard, and that PW3’s evidence (medical report) was inconclusive as it raised doubt as to the particular object used on the deceased to cause her death. Counsel asserted that the trial Court was wrong to convict the Appellant on such evidence founded on hear-say, inconsistencies and speculation; that the presumption of innocence of the Appellant could not have been curtailed by such evidence, especially as the PW4 did not investigate the alibi put forward by the Appellant. He relied on many authorities including Ogbor v. The State (1990) 3 NWLR (pt. 139) 184; Folarin vs. The State (1995) 1 NWLR (pt. 371) 31; Ukana vs. COP (1995) 8 NWLR (pt.416) 705.

On issue 3, Counsel submitted that the judgment did not flow from the evidence adduced at the trial, and so was perverse and occasioned miscarriage of justice on the Appellant; that by law, such judgment ought to be set aside. He relied on Lagga vs. Sarhuma (2008) 16 NWLR (pt. 1114) 427 at 455 and 462; State vs. Aje (2000) 11 NWLR (pt. 678) 434 at 449.

On this Counsel reproduced the findings of the trial Court on page 80 of the records, when he said:

“Going through the evidence of PW1, the only eye witness, he maintained that he saw the accused with an axe while someone unknown held the deceased. This accused person, he said, used the axe to inflict several cuts on the deceased on her head. He is a school boy of 13 and naturally he said he was frightened to see the gory sight. He ran home and not finding anyone home, ran straight to his aunty to relate the story. I hold that his action was normal for a boy of that age. He could not be expected to confront the culprits. That he did not attend school, that very day being a school day, is neither here nor there as anything could happen to make him be absent from school that day and besides, he was not cross-examined as to why he was not in school that day.”

Counsel submitted that the above findings imported extraneous facts which were not based on the evidence on record; that there was no record that the PW1 was frightened to see the gory sight. He argued that the findings that the action of PW1 was normal for a boy of that age and that he could not be expected to confront the culprits was based, purely, on speculation, without any iota of evidence to support it. Also he said that the finding that anything could have happened to make PW1 to be absent from school on that date, was perverse, being extraneous facts; that such caused miscarriage of justice. He relied on Chief Olabode & ors vs. FRN (2001) 10 NWLR (pt. 1254) 1 at 17; Dogo vs. State (2001) 1 SCNJ 315 at 335; Akinfe vs. UBA PLC (2007) 10 NWLR (pt. 1041) 185.

On issue 4, Appellant’s counsel, again, submitted that there were material contradictions in the evidence of PW1 and so the trial Court was wrong to rely on it to convict the accused. He submitted that where a witness makes an extra-judicial statement to the Police which is inconsistent with his oral testimony in Court such testimony is to be regarded as one on which the court cannot act. He relied on SOWEMIMO vs. THE STATE (2001) FWLR (pt. 79) 129. He also relied on STATE vs. UZOR (1972) NWLR 208; HENRY NWOKEARU vs. THE STATE (2010) 15 NWLR (pt. 1215) 1 at 12; OLADEJO v. STATE (1988) 1 NWLR (pt. 70) 274; CHRISTOPHER AREHIA & ANOR vs. STATE (1982) 4 SC 78.

Counsel asserted, again, that the statements made by the Appellant to the Police were induced; that the trial Court was wrong to admit them, without conducting a trial within trial. He relied on the case of Emmanuel Eke v. The State (2011) 3 NWLR (pt. 1235) 589 at 609; Abdullahi Sabi vs. The State (2011) 14 NWLR (pt. 1268) 421 at 437; Tosin Dele vs. The State (2011) 1 NWLR (pt. 1229) 508 at 533.

He said that the trial Court merely glossed over the issue of involuntariness of the statement of Appellant in Exhibits 4 and 4A. He urged us to resolve the issues for the Appellant.

Responding, the Respondent’s Counsel, K. A. Leweanya (Mrs) (ACSC, Ministry of Justice, Owerri) on issue 1, relating to the defence of alibi, submitted that the defence of alibi cannot avail the Appellant in this case and that the trial Court was right in rejecting the same; that it is the duty of the accused person to furnish the Police with the full particulars of the alibi at the earliest opportunity, and the particulars include his whereabouts and those with him at the material time of the incident; she submitted that there is nothing esoteric or extraordinary in a plea of alibi, which simply means that the accused person could not have been at the scene of crime and elsewhere, at the same time. Counsel argued that even if it is the duty of the Prosecution to check on a statement of alibi or attempt to do so, there is no inflexible or invariable way of doing this, if the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time; that the alibi is therefore logically and physically demolished. She submitted that, for a defence of alibi to be worthy of investigation, it should be precise and specific, in terms of place that the accused person was at the material time of the incident, as the Police should not be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. She relied on the case of Ochemaje vs. State (2008) All FWLR (pt. 432) 1661; Odu v. State (2001) 5 SCNJ 115; Ilodigwe v. State (2012) 7 KLR 2793.

Counsel referred us to the evidence of the Appellant on page 18 and 41 of the Records of Appeal and stated that the address the accused person gave to the Court as his residence in Aba was 46A Cemetery Road, over Rail Aba and that was different from the one he disclosed in his statement to the Police, which was G 12E, 15 Holy Line, Bakassi, Aba Abia State; that where the statement of accused person made before the trial is inconsistent with his testimony at the trial, the Court should reject both, as unreliable. She relied on R vs. Ukong (1961) All NLR 25, saying that Appellant was not consistent on where he lived in Aba; that IPO also told the Court that the accused lived alone at that place. She submitted that the accused person, therefore, failed to give sufficient particulars to the Police about the alleged alibi.

She submitted that by law, where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted. See Odidika v. The State (1977) SC 21; Aliyu vs. State (2012) FWLR 1497; Patrick Njovens v. The State (1973) 5 SC 17. Counsel relied on the evidence of PW1, which she said, fixed the Appellant at the scene of the offence, as well as the Appellant’s spectacle (dark glasses), which the Appellant was wearing on that date, which was picked at the scene of the crime and which Appellant admitted as his own. She relied on the case of State vs. Ezekiel Adekunle (1987) 1 CLRN 348; Omotola vs. State (2009) 7 NWLR (pt. 1139) 148; Olaiya vs. State (2010) All FWLR (pt. 514); Attah vs. State (2010) All FWLR (pt. 540) 1224. She urged to resolve the issue against the Appellant.

On issue 2 Respondent’s Counsel submitted that the prosecution had established the requisite ingredients of the offence of murder beyond reasonable doubt,
1. That the deceased died
2. That the death was caused by the accused.
3. That the act or omission of the accused which caused the death of the deceased was intentional, with knowledge that the death or grievous bodily harm was its probable consequence. Omonga vs. State (2006) All FWLR (pt. 93); Ogba vs. State (1992) 2 NWLR (pt.222).

She submitted that there is no dispute that Beatrice Kwemma died on 14/1/2002 and that she was murdered by Esonu Chukwunyere (Appellant) and another (still at large) by cutting her with an axe on her head, which resulted in her death; she said that the medical report (Exhibit 2) confirmed the cause of death; and that PW1, who witnessed the murder, testified as to what he saw and established the second ingredient of the offence; that Appellant also left his dark glasses behind at the scene of the crime to further link him with the offence. She relied on Uyo vs. A. G. Bendel State (1986) 1 NWLR (pt. 17); Alabi vs. State (1993) SCNJ 109.

On the 3rd ingredient of the offence, Counsel relied on the case of R vs. Nungu (1953) 14 WACA 379 and R vs. Adi (1955) WACA, to the effect of the presumption that a man intends the natural consequences of his act. She also relied on Hyam vs. DPP (1974) 2 All ER 43, where the House Lords held:

“An ‘intention’ to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death of or grievous bodily harm to the victim.”

On the nature of intention which must be proved to establish murder, Counsel relied on the holding of Lord Hailman in the above English case, which said:

“If a man, in full knowledge of danger involved and without lawful excuse, deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter, to the same extent as if he had actually intended the consequences to follow, irrespective of whether he wishes it.”

Counsel submitted that taking into consideration the nature of the weapon used, the force applied and the part of the body affected by the Appellants act, mens rea or mental awareness was established. She relied on the case of Alhassan Maiyaki vs. The State (2008) All FWLR (pt. 440) 628; Mohammed Garba vs. The State (2001) 2 ACLR 221.

Counsel also referred us to the findings by the trial court that PW4 (IPO) had, in the course of investigation, found that Appellant had threatened to kill the deceased in 2011, if she did not keep away from a case in Court for which the deceased had vowed to testify against the Appellant’s side. (Pages 13 and 38 of the Rescords).

On the medical report not being conclusive, Counsel submitted that the evidence of the PW3 (medical doctor) was quite relevant and direct; that even then medical report can be dispensed with, where there is direct or circumstantial evidence pointing to the guilt of the Appellant. She relied on Ehot v. State (1993) 4 NWLR (pt.290) 644 at 663.

On issue 3, Counsel submitted that there were no contradictions or inconsistences in the evidence of the PW1 on any material point, and relied on the case of Iko v. State (2003) 3 ACLR 64; Ogoala v. State (1991) 2 NWLR (pt.152). She further argued that it is not every contradiction or discrepancy that will affect the substance of a criminal charge which has been proved with credible and unchallenged evidence; that for contradiction or inconsistency to up turn a decision, it must be of such magnitude that will go to the root of the evidence of the witness and must be fatal to the case of the party relying on it. She relied on the case of Adekoya v. The State (he did not give citation).

On issue 4, Counsel submitted that the findings of fact by the trial court was not perverse as the decision was fully supported by credible evidence; she said that Appellant who alleged improper evaluation of evidence has the onus to identify or specify the evidence which was improperly evaluated or not evaluated, and to establish that, if the same had been corrected, it would have led to a different conclusion from the one reached by the trial court. She relied on the case of Igago v. State (2001) ACLR 123. She urged us to hold that the trial was right in the evaluation of the evidence and in reaching the verdict to convict the Appellant. She relied on Emmanuel Ben v. State (2006) 7 SCNJ 217; Ogbogu v. Ukwuegbu (2003) 4 SCNJ and urged us to dismiss the appeal.

RESOLUTION OF THE ISSUES.
I think the issues as distilled by the Appellant and the Respondent are the same, except for semantics, and that the issues by the Respondent were more ellegant and apt, having summarised each of the 4 issues by the Appellant, though the positions of Appellant’s issues 3 and 4 were swapped in the Respondents brief. I shall therefore adopt the 4 issues, as distilled by the Respondent in the consideration of this appeal, and, by so doing, I shall take the 1st issue separately and then take the issues 2 to 4 together, as the last three issues appear to relate to the same conclusion. I believe that in determining whether the trial judge was right in holding that the case against the Appellant was proved beyond reasonable doubt (issue 2), both the issues 3 and 4 are automatically determined along with it, that is, whether there were material contradictions between the extra Judicial Statement of PW1 and his testimony in court and whether the trial court can admit in evidence the extra Judicial Statement of the Appellant without conducting a trial-within-trial. (Issue 3) and whether the findings of the trial court was perverse and whether the decision of the trial court occasioned a miscarriage of justice (issue 4).

Issue one: Whether the defense of Alibi availed the Appellant and whether the trial court was right to have rejected the same.

Of course, as rightly argued by the Appellant’s Counsel, once defence of alibi (or any defence for that matter) is raised by an accused person, the prosecution is under obligation to investigate it, and the trial court has a duty to consider it, before coming to its decision. The trial court, in my opinion, had correctly stated the law in this case, when it held on page 82 of the Records of appeal, thus:
“Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of the crime when the crime was being committed; or to rebut the alibi if it was false. See Adio v. The State (1986) 3 NWLR (pt.31) page 714; Onafowoken v. The State (1987) 3 NWLR (pt.61) page 538. It is for this simple reason that an accused in such predicament should and is expected to, at the earliest opportunity, to protest his innocence by intimating the police, who are interrogating him, of his where about”
The above legal principle remains true and compelling as it provide an easy and quick escape door to freedom for an accused, wrongly arraigned, for committing offence. The defence is founded on the common knowledge of finite nature of man, as a terrestrial being, that he can be physically found at only one place at a time. Thus, where or when an accused person raises a defence of alibi, he is simply saying that the prosecution cannot be right, as he could not have been at the alleged scene of crime, having been elsewhere, at the material time of the offence, see Eke v. The State (2011) 3 NWLR (pt.1235) 589; (2011) LPELR – 1133 (SC), See Umani v. The State (1988) 1 NWLR (pt.70) 274; (1988) LPELR – 3357 (SC), pages 14-15, where Nnamani JSC, said:
“it has been settled that since the burden of proving the guilt of an accused person beyond reasonable doubt lies on the prosecution and does not shift, once the defence sets up on alibi, it is for the prosecution to lead evidence to disprove it. But the evidential burden of proof lies on the accused person who sets up such defence. This burden is no more than a duty on the accused person to adduce evidence, which would tend to show that he was some where else other than where the prosecution alleges he committed the crime. Akile Gachi & Ors v. The State (1965) NMLR 333; Oriese Yano and Ors v. The State (1965) NMLR pt.337; Lawrence Ogbodi Odidika v. The State (1977) 2 SC 21, 23 – 24. See also Patrick Njovens & Ors v. The State (1973) NMLR, 391″
In the case of Ayan v. State (2013) LPELR – 29032 (SC) my lord Muhammad JSC said:
“This Court in a seemingly endless chain of authorities has defined the word ALIBI, which it held to be a radical defence, to mean that an accused was some where else at the time of the commission of an offence and not possibly have, at the time, been at the scene to part take in it. See Sowemimo v. The State (2004) 11 NWLR (pt.885) 515 at 526 and Jerome Akpan & Ors v. State (2002) 12 NWLR (pt.780) 189. In particular Aiguroeghian v. The State (2004) 3 NWLR (pt.860) 367 at 401, the Court restated that -“… an alibi means that the accused was some where other than where the prosecution alleges he was at the time of the commission of the offence.”
But as rightly argued by the Respondent in this appeal, the Accused person’s duty to furnish the requisite particulars to predicate the plea of alibi remains cardinal to warrant the need for the prosecution to investigate the claim. The Accused person must go beyond the sweeping statement that, he was else where at the time of the alleged commission of the offence and give detail particulars as to where, in fact, he was, at the material time and who can attest to the fact of his being at the place he claimed at the time in point. Of course, that requires stating a physical, verifiable address and disclosing a living witness(es). The prosecution (police) is not expected to embark on a wild goose chase of the where about of the Accused person at the time of the alleged offence. See Ochemaje v. State (2008) ALL FWLR (pt. 432) 1661; Odu v. State (2011) 5 SCNJ 115.

In this case, it appears Appellant’s Counsel simply inferred a defence of alibi just because the Appellant said in his statement that he did not kill the deceased. But he admitted he was in the same village that morning of 14/1/2002 and went back to Aba at ‘around 8.am’! The statement of the Appellant wherein he claimed he went back to Aba by 8.am did not specify the exact place he was at the time of the commission of the offence, which was stated in the charge sheet to be “at about 0850 hours.” The offence was committed in the same village of ‘Ozara Ihube, Okigwe, in Okigwe Magisterial District” that same morning of 14/1/02, which Appellant admitted he was in the same village in the morning of the same date! In his said statement to the police, he said:
”
I know the deceased woman, she is my relation. I am resident at G. 12 E15 Holy Line of Bakassi Aba in Abia State. On Sunday 13th January, 2002, I came to my village Ozara Ihube in Okigwe L.G.A of Imo State. And I left my village around 8.am in the morning being 14/1/2002 to Aba, I did not come with anybody from Aba…”

In that statement, Appellant enumerated many activities which he claimed to have engaged in the village, from about 6am; he said that he went with his wife, Ifeoma Chukwunyere, to a place called Amagu village in the same Ihube, to get a man called Mgbankazie, to come and pray for his (Appellant’s) sick mother; they meet the man who told them to go and that he would be joining them; they got back to the house and his wife prepared him food which he ate and after the meal, he visited one Innocent and S.O. Udeagu, to tell them he was going back to Aba. He then took a motor cycle to another village, Ukwuntu and informed his mother’s sister, Mrs. Mgbeke Wayagu, of the sickness of his mother and to bring the woman to their home to meet the mother. He did not meet the Aunt at home and dropped a message for her. He said he took a motor cycle back to Ihube Junction and, from there, entered a vehicle to Aba. He claimed all these activities/engagements were packaged within 6 am and around 8 am! Obviously, he had a lot bothering him that morning!

Certainly, the narration above does not state the place Appellant was at the time of the commission of the offence at about 8.50 am and who was with him at the time. Was he on his way to Aba or already in Aba at the time? if on his way to Aba, he would have been in a vehicle with, at least, a driver and the vehicle would have had a registration number and the driver, a name! If he was already in Aba, at the time, he should have stated the place and the people who were with him.

In the absence of such particulars by the Appellant, I think there was nothing for the police to investigate in the name of alibi. The fact that he also gave two conflicting addresses of his residence in Aba, may also have added to the hopelessness of embarking on the investigation of such alleged alibi. In the case of Ochemaje v. State (2008) 15 NWLR (pt. 1109) 57 (2008) LPELR-2198 (SC), the Supreme Court held that
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time.”(Per Niki Tobi JSC). See also Rasaki v. State (2011) LPELR-4859 (CA), Ndidi v. The State (2005) 17 NWLR (Pt.953) 17;
It was also held in that case of Ochemaje v. State (supra) that,
“Investigation is not a necessity, if evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross examination by the evidence of the accused or his witnesses”. See also Odidika v. The State (1977) 2 SC 21 where it was held that, where there is direct and positive evidence of participation, the alibi, if raised, is rebutted by such evidence.
In Aliyu v. State (2013) LPELR-20748 (SC), the Supreme Court again held:
“It should be further reintegrated that it is not every failure of the police to investigate an alibi raised by an accused person that will be fatal to the case of the prosecution. There is nothing esoteric or extraordinary in a plea of alibi which postulates that the accused could not have been at the scene of the crime and only inferentially that he was not there.
Even if it is the duty of the prosecution to check on a statement of alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time, his alibi is thereby logically and physically demolished. See Patrick Njovens and ors v. The State (1973), NMLR 331; Ochemaje v. The State (Supra) at 78; and The State v. Ezekiel Adekunle (1989), CLRN 348″ Per fabiyi JSC.

I think the evidence adduced by the prosecution in this case, which was accepted by the trial judge, had fixed the Appellant, undoubtedly, at the scene of the crime, showing that he was still in the village of Ozara Ihube at about 8:50am, when he and his partner in crime, murdered the deceased, brutally, by cutting her with an axe on the head: The PW1 who saw the gory scene had told the trial court:

“As I approached the farm, I looked up and saw Esonu (Appellant) and one other I have already said I don’t know. The same attire they wore when I saw them inside the farm was still the same they had on them while passing through and fro our house. Esonu still wore the black spectagle he was wearing. That other man I do not know held my grand mother on the leg and this Esonu had a stainless axe he used to inflict injuries on her head. I got frightened ran home and raised alarm….” See page 25 of the Records.

PW1 had earlier stated how the Appellant (in company of the said person he did not know) passed to and fro their compound that morning, looking inside the compound and discussing. The evidence of PW1 was corroborated by the Appellant’s dark spectacle or google, which the PW2 picked at the scene of crime when the villagers rushed to the farm on the alarm of the PW1.

PW2 had said:

“At the scene, as we went round, I saw a spectacle on the ground-sunshade. We also saw the corpse with cuts all over: The accused was not there. I went to the police as well and made a statement. The police took the sunshade I saw.” Page 31 of the Records.

Yes, the Accused person was not there at the time PW2 and others went to the scene but the Accused person had left part of him behind. That is what, I believe, is mysterious work of God, because each time a criminal frolics, he leaves behind a trail or trace that leads to his hide out and identity! Thus, no matter how thorough or ingenious a criminal is, or thinks he is, in his evil scheme, he cannot hide, forever, as a part of him or shadow is always left behind for any careful detective to track and trace him!

Appellant had admitted that the spectacle or dark goggle was his, but tried to be smart by saying it was taken from him when he was arrested! But under cross examination, he admitted wearing the dark glasses on the 14/1/02, and that his said glasses and the one he saw at the police station were the same!
He was asked:

“This you’re eye glasses and the one you saw at the police, are they same and one thing? Answer: The same thing.” See page 42 of the Records.

That tends to confirm that Appellant, on his arrest on 17/1/02, was confronted with his eye glasses and that he saw the glasses at the police station, having been picked by PW2 on the 14/1/2002 and handed over to the police!

Having therefore been sufficiently identified and fixed at the scene of crime, and as having actively participated in the commission of crime, the alleged alibi became unintelligent and defeated. It was not therefore worthy of investigation, or waste of resources and time on it, as that would have indeed, amounted to “a wild goose chase.” See Ochemaje v. The State (supra).
I resolve this issue against the Appellant

Issues 2, 3 and 4:
Was the charge proved by the prosecution beyond reasonable doubt and the evidence devoid of any material contradiction, improper admission of exhibit?
Was there any perversion in the findings of the trials judge?

The trial Court in this appeal had relied, heavily on the evidence of PW1 and PW2, to convict the Appellant of the murder of his aunt. The evidence was both direct and circumstantial showing that the Appellant killed the deceased by axing her to death, acting in company of another person now at large. I have earlier reproduced and analysed the evidence of PW1 and PW2 which the trial court relied on, in the course of considering the issues 1(whether the defence of a alibi availed the Appellant).

I think every doubt was dispelled by the evidence of the PW1, a thirteen year old school boy, who asserted that he saw when the Appellant used an axe to cut the deceased on the head, assisted by the second assailant, who held the legs of the deceased down while Appellant did the cutting. PW1 had earlier seen the Assailants that morning when they passed by the compound of the deceased, to and fro, apparently monitoring the movement of the deceased, who was preparing to go to the farm. Appellant wore dark glasses (goggles). At the time of murder the Appellant was also identified by the same goggles and the attire they wore while parading the compound of the deceased, earlier in the morning.

Of course, the evidence of PW2, who picked Appellant’s dark glasses at the scene of crime, where they also found the corpse of the deceased that morning, further corroborated the evidence of PW1 and fixed the Appellant at the spot of crime. That was a circumstantial evidence, which on its own, was enough to link the Appellant with the offence, especially as he admitted that the dark glasses was his and that he wore it that morning 14/1/2002 the deceased was murdered. See page 42 of the Records.

There was therefore clear evidence that somebody (the deceased) died; that she died on the spot after the Appellant had used an axe to cut her on the head in the farm. The medical report (Exhibit C) affirmed that the cause of death was brain injury, which could be caused by blunt object – injury i.e. laceration caused by sharp object. See page 33 of the Records of appeal.

Whether the Appellant actually intended the death of the deceased is not difficult to decipher from the nature of the weapon (axe) used on the vulnerable part of her boby (head) and the fact that Appellant killed the deceased on the spot.

In the English case of Hyam v. DPP (1974) 2 All ER 43, the house of lords held:
“…an intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in death of or grievous bodily harm to the victim.”
Commenting on this (in that case), Lord Hailsman said:
“if a man in full knowledge of danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter, to the same extent as if he had actually intended the consequences to follow irrespective of whether he wishes it.”
Of course, it cannot be disputed that a man who uses a stainless axe to deal lethal cut(s) on the head of a harmless woman in a farm, certainly, intended the end result of that wicked act being the death of the victim or grievous bodily harm to her. See the case of Alhassan Maiyaki v. The State (2008) All FWLR (pt. 440) 628. See also the case of Mohammed Garba v. The State (2001) 2 ACLR at 221, where the Supreme Court said;
“There can be no doubt that a person delivering a violent blow with a stick or club on a vulnerable part of the baby such as the head I must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his act.”
I think a man should always be held for the consequences of his violent act, as he is deemed to have intended the same, if there is nothing to impeach or negate the presumption of his mental soundness at the time of the act. See Amachi v. The State (2014) LPELR – 22499 (CA) where Ekpe JCA, on what constitutes intent to kill, said:
“…a man is presumed (to intend) the natural consequences of his act. An intent to kill or to cause grievous bodily harm can be inferred from the nature of the wound. See the case of ERIC Uyo v. A.G. Bendel State (1986) 1 NWLR (pt. 17) 418. A severe blow on the head with a blunt object which inflicts a severe head injury leading to death presupposes an intent to kill the deceased.”

Appellant had tried to pick fault with the evidence of PW1, in court saying it was conflicting with his statement to the police. In particular, Counsel said that in the statement to the police PW1 had said the accused person and an unidentified person hit the deceased in the farm with an axe and that later he (PW1) in company of other villagers met the lifeless body of the deceased in the farm, while in his evidence in court PW1 told the court that it was Appellant who inflicted injuries on the head of the deceased with a stainless axe. Appellant also argued that in the statement to the police, PW1 did not mention the name of the man that picked the dark glasses of Appellant at the scene of crime. See paragraph 4.2.8 and 4.2.9 of the Appellant Brief.

I am at pains trying to spot the contradiction or inconsistency which Appellant’s Counsel complained about which can cast a slur on the clear evidence of the PW1, showing that Appellant and another (still at large) as the killer of the deceased.

On the allegation that the trial court was wrong to have admitted the statements of the Appellant to the police, made on 7/1/2002, when he was arrested, as exhibits, without subjecting same to trial-within-trial, I can only say that Appellant’s counsel goofed, since Appellant never disputed the voluntariness of the said statement at the trial and never called for the said trial-within-trial, when the documents were tendered as exhibits.

On 27/4/2005, when the IPO (PW4) started to give his evidence and sought to tender the statements of the Appellant, Appellant’s Counsel,Â Â had objected and the case was adjourned to 11/5/2005 “for trial within trial”. But on the said 11/5/2005, the following were recorded:

“Accused person is present S.C. Osuoha Esq. State Counsel for the State Ngozi G. Uwaezuoke (Mrs) for accused person, withdraws the issue of trial within trial since the accused has acknowledged the statement as his. The State Counsel says he wants a date to prepare and present his witness. Case adjourned to the 28th day of May, 2005.” See page 35 of the Records.

Of course, Appellant cannot therefore complain again that the trial court did not conduct a trial within trial. An accused person, who faults the admission by a court of his statement to the police, has a duty to raise that objection, timeously, at the time of tendering the same and to call for a trial within trial to resolve the dispute. Failure to do so will foreclose him to raise such complaint on appeal. See the case of Oseni v. State (2012) LPELR – 7833 (SC); Usman Salahudeen v. The State (2013) LPELR – 21851 (CA); Musa v. The State (2014) LPELR -22912 (CA), at pages 45 – 46 thereof; Oji v. FRN (2013) All FWLR (pt 668) 920; Egbodu v. State (1991) 11 – 12 SC 98; Okoroh vs State (1990) NWLR (pt.125) 128.

In this case Appellant had admitted Exhibit 4 and 4A as his statements to the police, though he said they were to be one statement not two. He also admitted making the 2nd statement to explain how his dark glasses were taken from him, and he made use of the said statements in his defence. There was therefore no basis for Appellant’s contention against the admission of the said statements by the trial court.

I hold that the learned trial court acted correctly in his findings, when it held that the Prosecution had proved the charge against the Appellant beyond reasonable doubt and convicted him, accordingly, sentenced him to death, for murder. I resolve the issues against the Appellant.
This appeal is, therefore, devoid of merit and is hereby dismissed.

PETER OLABISI IGE, J.C.A.: I have had the advantage of reading before now the leading Judgment just delivered by my Lord, MBABA, JCA.

I agree that the learned trial Judge was right in his decision that the Appellant was guilty of murder. I equally dismiss the Appellant’s appeal as it is bereft of any merit.

FREDERICK O. OHO, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned Brother, I. G. Mbaba, JCA. My learned Brother has adequately dealt with the points raised in the appeal and I agree with the reasons given in the Judgment which I adopt as mine in dismissing the appeal.

Appearances

J. C. Okafor Esq. For Appellant

AND

A. N. Eluwa (Mrs) SG/PS Ministry of Justice Imo State, Owerri, with her K. A. Leweanya, (Mrs) A. C. S. C. For Respondent