HYCIENTH AGBOM V. THE STATE
(2012)LCN/5261(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2012
CA/C/146C/2009
RATIO
CIRCUMSTANTIAL EVIDENCE: WHETHER THAT AN ACCUSED PERSON CAN PROPERLY BE CONVICTED UPON CIRCUMSTANTIAL EVIDENCE
In employing circumstantial evidence to found conviction the courts take into consideration the general trend of the evidence that is adduced at the trial. In Ismail vs State (2011) 7 MJSC 28 at page 67 Tabai, JSC held as follows: “The settled principle of law is that an accused person can properly be convicted upon circumstantial evidence only if it is cogent, positive and points unequivocally to him or her as the perpetrator of the offence. See Kalu vs. State (1993) 6 NWLR (Pt.300) 355 at 396-398; Esai ys The State (1976) 11 SC 39; Ukorah vs State (1977) 4 SC 167; Omogodo vs State (1951) 5 SC 5; Ibina vs State (1989) 5 NWLR (Pt.120) 238.In other words, the evidence should eliminate the possibility of some other person also as the perpetrator of the offence. If such a possibility is not eliminated, then the evidence admits of more than one conclusion. In such a situation, a doubt or doubts would be created and such doubts must necessarily be resolved in favour of the accused. ” See also Okonofua vs State (1931) 1 NCR 145/155 lines 25-28 and R. vs Onufrejczyk (1955) 1 All E.R. 247. Per. JOSEPH TINE TUR, J.C.A
EVIDE NCE: ON WHOM LIES THE BURDEN TO PROOF BEYOND REASONABLE
In a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. Audu vs. State (2003) 7 NWLR Pt. 820 Pg. 516, Uguru vs. State (2002) 9 NWLR Pt. 771 Pg. 90, R. vs. Owe (1961) 2 SC NLR Pg. 354. Per. JOSEPH TINE TUR, J.C.A
EVIDENCE: WHETHER SUSPICION CAN CONSTITUTE A CRIME OR GROUND A CONVICTION
Suspicion, however strong, cannot constitute a crime or ground a conviction. The evidence relied upon to establish a charge of murder may be direct or circumstantial. Whether the evidence is direct or circumstantial it must establish the guilt of the accused beyond reasonable doubt. The onus in this regard is on the prosecution and as a general rule it never shifts. Ubani vs. State (2003) 18 NWLR Pt 851 page 22, Aruna vs. State (1990) 6 NWLR Pt 155 page 125, Ozaki Vs. State 1 NWLR Pt 124 page 92. Per. JOSEPH TINE TUR, J.C.A
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
HYCIENTH AGBOM – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH TINE TUR, J.C.A.: (Delivering the Leading Judgment) Hycienth Agbom, a native of Amudo village in Ezza Local Government Area of Ebonyi state of Nigeria was tried, convicted and sentenced to death by Hon. Justice M.O. Eneji of the High Court of Justice, Ikom, Ikom Judicial Division, Cross River State of Nigeria on 27-04-2007 on a charge that read as follows:
“STATEMENT OF OFFENCE:
Murder – Contrary to Section 319(1) of the Criminal Code.
PARTICULARS OF OFFENCE:
Hycienth Agbom on the 13th day of February, 1996 at between Ikom Four Corners and Yala Nkum Junction along Ikom-Ogoja highway in the Ikom Judicial Division murdered Igulu Awara.
Signed
James A. Oyi
Senior State Counsel. ”
Being aggrieved with the conviction and sentence Hycienth Agbom filed a Notice of Appeal on 04-07-2007 to the Calabar Division of the Court of Appeal. On 10-12-2009 leave was granted the appellant to raise fresh issues and file additional grounds of appeal. Same were deemed to have been filed and properly served on the Respondent. Time was also extended for the appellant to file Brief of Argument. On 02-02-2012 the court, on application, extended time for the Respondent to also file and serve Brief of Argument. Same was deemed filed and served on the Appellant. When the appeal came up for hearing on 21-02-2012 learned counsel appearing for the appellant and the State adopted their respective Briefs of Arguments. Before I delve into the issues for determination I shall recapitulate the facts that led to the arrest, trial, conviction and sentence to death of the appellant for the murder of Igulu Awara.
Igulu Awara, the immediate junior brother of Jonah Awara Efem (PW6) of the Federal Medical Centre, Asaba, Delta State, whose sister is Mary Umoh (PW5) the wife of Anthony Umoh (PW1) is alleged by the prosecution witnesses to have conveyed the appellant on a ladies motorcycle, green in colour registered as No. AN 4277 UKB on 13-02-1996 from No.43 Broader Road, Ikom to Nkum Yala all in Cross River State. Till date Igulu Awara’s whereabout is unknown. The prosecution alleges that he was murdered by the appellant. The appellant denied the allegation that Igulu Awara conveyed him on that day as alleged. That it was Peter Agbo (PW3) that did so. PW3 admitted conveying the appellant on that fateful day where he picked some items. Jonah Aloa (PW2) admitted that about 10:00pm of 12-02-1996 at Edor, Ikom Local Government the appellant had come to his house looking for where to sleep. The reason he gave was that he returned late to his compound hence he could not gain entry. He went to the Reverend Father in charge of the Catholic Church who refused to accommodate him hence he came to PW2 for assistance. Pw2 testified that while still interviewing the appellant about his identity his younger brother came to inform him that the police were looking for the appellant in connection with the shooting of someone at Amudo village in Ezza Local Government Area of Ebonyi State. PW2 offered the appellant drinks and then sent for the police. That the police came and immediately arrested the accused with a lady’s motorbike though he did not know the registration number. But it was blue in colour. Cross-examined by the Defence Counsel Peter Agbo (PW3) replied that, “It is true that I conveyed the accused to Yala Nkum – where he picked 5 tubers of yams, a camera and a FESTAC bag. I did not see the accused when he hired Iguru I was told. I have not seen lgulu’s dead body nor where he was buried.” See page 23 lines 7 -9 of the printed record’
The appellant alleged that Emmanuel Onele (PW4) sold the motorbike Exhibit “F” to him. But PW4 denied ever having any business transaction with the appellant. He denied that clement Oru introduced the appellant to him as claimed by the appellant. The witness denied ownership of Exhibit “F” but admitted that the sales agreement purportedly reflected his name, put there by the Investigating police officer (IPO). He was surprise to hear appellant’s allegation that he sold Exhibit “F” to him’ He denied meeting the appellant or Clement Oru on 13-02-2009. ASP Obio Udubio testified as PW7 the second in command’ Homicide Section, State CID Calabar, Cross River state through whom the police investigation report was tendered and marked Exhibit “G” PW7 admitted he was not the investigating police officer though he identified the signature of Mr. Paul Mbaya the Assistant Commissioner of Police (Rtd.) then in charge of Homicide at Calabar, Cross River State. The prosecution closed her case.
The appellant testified he bought the motorbike from Emmanuel Onele (PW4) on 14-02-1996, and “…N21,000.00 completely on 14-02-1996.” The appellant testified that, “I then took custody of the motorcycle and handed it over to Clement Oru. Clement was riding it as a commercial motorcyclist…” See page 42 lines 16-18 of the printed record. That Clement Oru was riding the motorcycle when apprehended by the police at Edor. Clement Oru sent for him and he was arrested by the police on 15-02-1996. The appellant gave evidence as to his whereabout between 12th and 13th February, 1996 as follows, “I was in 4 Corners, Ikom between the 12th and 13th day of February, 1996. I was in 4 Corners Ikom between 1st and 12th Feb., 1996. I made a statement to the police in connection with this case. I know the owner of Exhibit “E”. His name is Emmanuel Onele. He was the one who sold the motorcycle to me. He will not deny that he sold the motorcycle (Exhibit “F”) to me. I trade on ready made adult men and women’s clothes. On 13th Feb., 1996; I hired a motorbike of a pay cyclist to take me to Yala to convey my goods of trade. The goods in question include: (1) ready made clothes (2) yams and (3) my camera. The clothes were contained in a “Ghana must go” bag, If any one says I did not have any Ghana must go bag on that day will be a liar. I was arrested on 15-02-1996. I was arrested on the night of 13-02-1996 in Edor… I know one Linus Uzegbe. He is my town’s man He lives at Broader Road, 4 Corners, Ikom. I spent the night of 12-02-1996 in his house…” See page 44 lines 20-31 and p.45 lines 1-13 of the printed record. The appellant further testified thus, “…Before we were taken to Calabar, I handed over all my motorcycle particulars and agreement to the IPO – Christopher Alozie; and the sum of N11,000.00 which was in my pocket.” See page 43 lines 3-5 of the printed record. The appellant further gave evidence thus, “…I traveled to Edor on a motorcycle belonging to Emmanuel Onele. I handed over my own motorcycle (Exhibit “F’) to clement to drive as a pay cyclist on that 14-06-1996, when I paid for it.” See page 45 lines 11-13 of the printed record. Based on the above evidence the learned trial Judge rejected the story of the appellant but convicted him of the murder of Igulu Awara.
APPELLANT’S ISSUES FOR DETERMINATION
The Appellant’s issues for determination have been set out at page 4 paragraph 3 of the Brief of Argument as follows:
“1. Whether given the nature and quality of evidence coupled with the failure of the IPO to testify, the prosecution proved their case beyond reasonable doubt to warrant the conviction of the appellant? (Grounds 1, 3, 7 & 8).
2. Whether the findings of fact made by the learned trial Judge with respect to the investigating police officer (IPO) are not perverse? (Ground2).
3. Whether the entire proceedings and judgment of the lower court are not rendered null and void for the Court hearing the matter on 16-02-2007 in the absence of the appellant? (Ground 5).
4. Whether there was no failure of justice when James A. Oyi Esq. of counsel who filed the information as State Counsel also represented appellant as defence Counsel? (Ground 6).
5. Whether the entire proceedings ought not to be quashed for failure of the prosecution to seek and obtain leave of the Judge before filing the information? (Ground 4).”
The Respondent formulated the following issues for determination:
“1. Whether the entire proceedings ought not to be quashed for failure of the prosecution to seek and obtain leave of the judge before filing the information.
2. Whether there was no failure of justice when James Oyi Esq of counsel who filed the information as State Counsel also represented appellant as defence Counsel?
3. Whether the entire proceedings and judgment of the lower Court are not rendered null and void for the Court hearing the matter on 16th February, 2007 in the absence of the appellant?
4. Whether given the nature and quality of evidence coupled with the failure of the IPO to testify, the prosecution proved their case beyond reasonable doubt to warrant-the conviction of the appellant.”
ISSUE 1 AND 2: APPELLANT’S BRIEF
The argument on issue one and two is that the appellant testified he purchased Exhibit “F” from PW4 who denied the allegation claiming that the IPO wrote his name on the sales agreement. Nevertheless, the IPO was not called by the prosecution to testify. Moreover, while PW2 described Exhibit “F” as blue in colour, PW6 said it was green. The question was, who was the owner of Exhibit “F”? What was its colour? Did the appellant give the IPO the documents of title to Exhibit “F”? If Pw4 alleged that his name was appended on the sale agreement by the IPO, was he not a crucial and material witness? Without the IPO’s evidence could it be said that the prosecution had proved the murder charge against the appellant beyond reasonable doubt? Learned Counsel cited the dictum of Akaahs, JCA in Rose Oshodin vs The State (2001) 12 NWLR (Pt.726) 217 at 234 and submitted that the prosecution had failed to prove the murder charge beyond reasonable doubt. Learned Counsel further argued that the extra-judicial statement of the appellant was not tendered at the trial, and with the IPO not testifying this left a yawning gap in the prosecution’s case which should be resolved in favour of the appellant. Besides it could not be categorically proved in the absence of the IPO that Exhibit “F” was the properly of Igulu Awara since what was found on the appellant in the night of 12-02-1996 was blue but Exhibit “F” is according to the testimony of PW6 – green. Learned Counsel challenged the truthfulness of PW2 and P4 citing Ogbenta vs Nzeribe (1999) 4 NWLR (Pt.599) 348 at 357 and Dogo vs The State (2011) 3 NWLR (Pt.699) 192 at 211. Counsel urged that the learned trial Judge should not have believed these witnesses bearing in mind that they too had been arrested by the police in connection with the disappearance of Igulu Awara before being released from police custody. Counsel submitted that the circumstantial evidence upon which the learned trial Judge convicted and sentenced the appellant to death did not meet the required standard in law, citing Mohammed vs The State (2007) 11 NWLR (Pt.1045) 303 at 327; Omotola vs The State (2009) 2 – 3 SC (Pt.2) 196; Adie vs The State (1980) 1-2 SC 116; Nwaeze vs The State (1996) 2 NWLR (Pt.428) 1; Akinbisade vs The State (2007) All FWLR (Pt.334) 17 at 14; Orji vs The State (2008) 10 NWLR (Pt.1094) 31 at 60. That the learned trial Judge ought not to have speculated as to why the IPO did not testify at the trial. Counsel urged that issue 1 and 2 be resolved in favour of the appellant.
ISSUES 3, 4 AND 5:
The argument by learned Counsel to the appellant is that on 16-02-2007 proceedings were conducted in the Court in the absence of the appellant contrary to the provisions of Section 205 of the Criminal Procedure Law Cap C.17 Laws of Cross River State of Nigeria, 2004. The second arm of the submission is that there was failure of justice when Mr. James A, Oyi Esq. appeared to defend the appellant in the lower Court whereas he had filed the charge when he was Senior State Counsel in the Ministry of Justice, Calabar, Cross River State. Lastly, that the trial should be vitiated as the prosecution did not seek the consent of the learned trial judge before the proceedings were commenced contrary to Section 309 of the Criminal Procedure Law and Section 340 of the Criminal Procedure Act, citing Ikomi vs The State (1986) 3 NWLR (Pt.28) 340.
RESPONDENT’S ARGUMENT
ISSUES 1 AND 2:
Attah Achinke Esq. from the Ministry of Justice, Cross River State who settled the Respondent’s Brief submitted on issues 1 and 2 citing decided authorities as showing the quality of evidence the prosecution required to found conviction in murder cases, namely, Ubani vs The State (2004) FWLR (Pt.191) 15-36; Igbabele vs The State (2006) 5 MJSC 96 at 100; Sections 138 and 144 of the Evidence Act and 308 and 144 of the Criminal Code. That there is a presumption that Igulu Awara having not been heard of since 13-02-1996 is dead; that the appellant is responsible for his death. Learned Counsel, referred this Court to the evidence adduced by the prosecution witnesses to buttress his submission. Counsel submitted that in this case, circumstantial evidence was direct, positive and cogent enough to uphold the conviction and sentence of the appellant, citing State vs Usman (2004) All FWLR (Pt.226) 237.
On Exhibit “F” learned Counsel contended that the issue of its colour was a minor discrepancy and immaterial, the appellant having being arrested with it. The failure of the IPO to testify was also not fatal to the conviction of the appellant; neither would the failure of the prosecution to tender the extra-judicial statement of the accused be, citing Ndidi vs The State (2005) 17 NWLR (Pt.953) 17 at 20. Learned Counsel saw no material discrepancies between the evidence of PW2 and PW4 nor why the trial Judge should disbelieve their evidence. That there was no yawning gap in the evidence of the prosecution witnesses. Moreover, discretion vests in the prosecution to call only material witnesses to prove the charge against the appellant, citing Ikemson vs The State (1989) LLRN 1 at 25. If the appellant hired Igulu Awara who conveyed him on Exhibit “F” but since then he has not been heard of, the onus is on the appellant to explain his whereabout particularly when arrested with Exhibit “F”, citing Olayinka vs The State (2007) 9 NWLR (Pt.1040) 561 at 569 and Udo vs The State (2006) 15 NWLR (Pt.1001) 179 at 193. Learned Counsel urged the court to dismiss this appeal and affirm the conviction of the appellant.
ISSUES 3, 4 AND 5:
On issues 3, 4, and 5 it was submitted that the proceedings ought not to be quashed because of the Criminal Procedure (Amendment) Edict No.2 of 198,4 which commenced from 7th June, 1984. That the amendment dispensed with consent or direction from the trial Judge before filing information to prosecute offenders for murder. There was no failure of justice when Mr. Oyi Esq. of Counsel appeared to defend the appellant. Fair hearing was not breached under Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999 citing Ejeka vs The State (2003) 7 NWLR (Pt.819) 408 at 410-411. The fact that proceedings were conducted in the absence of the appellant per se did not lead to a miscarriage of justice. Reference was made to Adumfe & Ors vs IGP (1956-1960) 1 NSCC 60; Filani vs Bornu Native Authority (1961-1962) 2 NSCC 225 at 226 and Ajayi & Anor vs Zaria Native Authority (1963 – 1964) 3 NSCC 137 at 138. The court was urged to dismiss this appeal.
ISSUES 3 & 4 – 5:
Let me first deal with issues 3, 4 and 5.
On 11-12-2002 B.A. Bassey Esq. appeared for the State while Mrs. R.U. Yaro appeared as Counsel to the appellant. The trial commenced de novo before His Lordship M.O. Eneji J., on 23-01-2003. The appellant pleaded not guilty to the charge and hearing commenced with various Counsel appearing at different stages for the appellant till 24-05-2006 when J.A. Oyi Esq. represented the appellant and cross-examined Obio Udubio ASP (PW7). Thereafter the prosecution closed her case. On 13-09-2006 the appellant was again led by J.A. Oyi Esq. while E.J. Ani Esq. represented the State. Oyi Esq. closed the defence on that day. The Court adjourned for addresses. On 26-01-2007 E.J. Ani Esq. represented the State while J.A. Oyi Esq. appeared for the appellant. Mr. Oyi Esq. asked for seven days to file and serve written address which was granted. The case was adjourned to 16-02-2007 for judgment. On 16-02-2007 Mr. Oyi Esq. informed the Court he had filed and served written address on 3l-01-2007. That he had no rejoinder to the address filed by the State on 09-02-2007. Judgment was fixed for 23-02-2007. From the printed record Mr. Oyi Esq. prepared the written address which he filed on 31-01-2007. See page 50-51 of the printed record. Section 36(6)(c)(d) and (e) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads thus:
“(6) Every person who is charged with a Criminal offence shall be entitled to:-
(a) be informed promptly in understands of the offence; xxxxxxxxxxxx
(b) defend himself in person or by legal practitioners of his own choice;
(c) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those applying to the witnesses called by the prosecution.”
At no time did the appellant object that Mr. J.A. Oyi Esq. of Counsel, being a one time Senior State Counsel in the Ministry of Justice who filed the charge should not represent him at the trial. The appellant had a choice to defend himself in person or by legal practitioner of his own choice. The appellant had a choice, to choose between several legal practitioners that offered to represent him at the trial. If one makes a choice, he does it because he wants to do it, and not because he was forced or compelled in making that choice. See Longman Dictionary of contemporary English, New Edition page 259 – 260. R.S. Oyi Esq. participated in the proceedings up to the stage of filing written address without objection from the appellant. From the moment, Oyi Esq. appeared without objection he became the appellant’s Counsel. The appellant had elected that amongst the many other Legal Practitioners that had been appearing Mr. Oyi Esq. should take over and defend him. A binding contractual relationship came into existence between the appellant and Oyi Esq. from the moment of appearance. The relationship of client and solicitor or Barrister being contractual, was established. See Edozien vs Edozien (1993) 1 SCNJ 166 at 189-190; Mosheshe vs NSP Ltd. (1987) 2 NWLR (Pt.55) 110 at 119 and Adewunmi vs Plastex Nig. Ltd. (1936) 6 SC 214 at 223. The onus is on the appellant, having consented to the appearance of Mr. Oyi Esq. to show the injustice he has suffered before this Court can hold that there has occurred a miscarriage of justice. See Obodo vs Olomu (1987) 6 SC 154 at 181; Akhiwu vs Principal Lotteries Officer (1972) 1 All NLR 229 and Michael Okoroh vs The State (1990) All NLR 130 at 136.
The appellant was not in Court on 16-02-2007 yet Mr. Oyi Esq. represented him. Learned Counsel informed the Court that he filed and served the written address of the appellant on 31-01-2007. That the State had also filed a reply on 09-02-2007. Mr. Oyi Esq. further intimated the Court he had no rejoinder to the Reply but asked for judgment. The Court fixed judgment for 23-02-2007. The onus is on the appellant to show how a miscarriage of justice occurred in such a circumstance. In Ayisatu Adunfe & 48 Ors vs Inspector General of Police (1957) 2 FSC 21 the Magistrate visited the locus in quo, scene of the riot in company with the prosecutor, the defence counsel and witnesses in the absence of the 125 accused persons standing trial for riotous acts and malicious damage to property. This was just to familiarize himself with the scene and relative position of one building to another and see the extent of damages. This contravened the provisions of section 207(2) of the Criminal Procedure Ordinance which made it obligatory on the court to ensure that an accused was present at the view of the locus in quo. Jibowu A.g. F.C.J. sitting in the Federal Supreme court, adopted the dictum of verity C.J. in R. vs Oyefolu 13 WACA 186 to determine the appeal. Verity C.J., had held that:
“But before we can be satisfied that should the conviction be quashed in the present case, it is not only necessary that we should be satisfied that there had been a grave irregularity, but that this irregularity might amount to a substantial miscarriage of justice.”
After citing the dictum Jibowu, Ag. F.C.J. continued (p.22):
“It is clear, therefore, that it is not every irregularity in a trial that the conviction registered in the case will be quashed. It is necessary for the Court to consider whether the irregularity in a particular case, caused a miscarriage of justice.”
See also State vs Gwonto & Ors (1983) 1 NCR 19 where the Supreme Court set out what kind of irregularity ought to vitiate the entire proceedings per Nnamani, JSC at page 31 to 32 thus:
“….a mere possibility that a failure of justice might have occasioned is not enough to justify interference by an appeal Court: See Muhammadu Arab vs Bauchi N.A.(6) (1965) NNLR at 50 and Ubi Yola vs. Kano N.A. (15). The emphasis on a failure of justice being in fact occasioned is one way of emphasizing the point that while a Court of Appeal would not act where there is a material irregularity (particularly one which constitutes a marked departure from well established principles of criminal procedure) it is not every irregularity that is a ground for quashing convictions. The irregularity must be one which goes to the root of the case: See R. vs. Furlong (11); R vs Kalinsky (12) and R. vs Berkeley (9).”
When the trial came before His Lordship M.O. Eneji J., on 11-12-2002 B.A. Bassey Esq. of Counsel for the State and R.U. Yaro (Mrs) for the appellant agreed that the case “is commencing de novo.” Nowhere did MrS. R.U. Yaro of Counsel to the appellant raise objection that trial had commenced without the consent of the former judge or Eneji J. That is not reflected in the record of appeal. The appeal Court acts on the records before it. See NPM Co. Ltd. vs CNDETSS (1971) 223 at 226; Omodohion vs COP (1961) 4 ALL NLR 594; Q.vs Ogodo (1961) 4 All NLR 700; Q vs. Isa (1961) 4 ALL NLR 668 and Enekebe vs Enekebe (1964) and NMLR 42/46.The appellant’s duty is to place before this Court all the materials upon which he wants to canvass this issue. The onus of compiling the records is on the appellant. See Nwana vs FCDA (2007) 11 NWLR (Pt. 1044) 59; T.A.S.A. Ltd. vs Dantrans Nig. Ltd. (1996) 10 NWLR (Pt.478) 360 at 363. Since the trial was commenced de novo before Eneji J., the appellant should have compiled the records of the first aborted trial if he intended to argue this issue. Only then can it be determined whether consent or no consent was sought, This Court is not in a position to speculate as to whether the trial commenced with or without consent from the trial judge. I resolve issues 3, 4 and 5 against the appellant.
ISSUES 1 AND 2:
The evidence adduced before the trial Court cast doubt on the prosecution’s case, namely, that the appellant murdered Igulu Awara as charged under Section 319(1) of the Criminal Code. The evidence of Anthony Umoh (PW1)) and Mary Anthony (PW5) is that on the 13th day of February, 1996 the appellant hired Igulu Awara to convey him to Yala Nkum. Since then nothing has been heard of him. But Peter Agbor (PW3) testified that he conveyed the appellant to Yala Nkum at 5:00am on 13-02-1996. That after he dropped the appellant he went and repaired his motorbike. Later he learnt that Igulu Awara conveyed the appellant on his motorbike (Exhibit “F”). The name of his informant was not given in evidence. This conflicts with the evidence (PW1) of Anthony Umoh and Mary Umoh (Pw5) that Iguru Awara conveyed the appellant on his motorcycle on the day in question. The evidence of Pw3 supports the appellant’s evidence that Igulu Awara did not convey him on 13-02-1996. PW3 and Jonah Awara Efem (PW6) were not present when Igulu Awara conveyed the appellant. The PW6 could only admit that he purchased Exhibit “F: for the deceased’s use. At page 39 lines 19-24 PW6 gave evidence that, “…I was not at home when the incidence took place hence, my inability to report the case personally to the police. Not everything I told the court is from what I was told. The issue concerning ownership of the machine is what I know personally as its owner. It is on the issue of the killing of Awara, that I was told that the accused killed him. It was Mary Anthony (the PW5) who told me that it was the accused who killed Awara. The body of my deceased brother has not been found till date.” Obio Udubio ASP (PW7) was posted to the Homicide section of state CID, Calabar as second-in-charge on 13-01-2006 almost ten years after the offence was alleged to have been committed on 13-02-1996. Exhibit “G” should have been tendered through the IPO so as to subject him to cross-examination. “It is settled law that documentary evidence can only be tendered through its maker. See Opolo v. The State (1977) 11 SC 6; Okpara vs Federal Republic of Nigeria (1977) 4 SC 53. See also Section 90(1)(a) of the Evidence Act” per-Onu, JCA in Agwuneme vs Eze (1990) 3 NWLR (Pt. 137) 242 at 254. I am of the firm belief that Peter Agbor (PW3), Jonah Awara Efem (PW6) and ASP Obio Udubio (PW7) were not capable of testifying that on the 13th day of February , 1996 they saw Igulu Awara conveying the appellant on Exhibit “F” to Yala Nkum. Their evidence is hearsay.
The testimony of John Aloa (PW2) is that on 12-02-1996 at about 10:00pm the appellant came to his house to sleep. Upon receiving information that the police were looking for him, he sent Francis Nwafor to call the police. The police came and immediately arrested the appellant with a Lady motorbike. If that motorbike was green in colour but Jonah Awara Efem (PW6) gave evidence it was red, who is telling the truth? Either PW2 or PW6 or both are liars. Furthermore, was the appellant arrested on 12-02-1996, 14-02-1996 or 15-02-1996 and by whom? There is no evidence from the prosecution to that effect. There is no evidence that the appellant was arrested with Exhibit “F”. Anthony Umoh (PW1) and Mary Anthony (PW5) only saw Exhibit “F” on 14-02-1996 at Edor police station. Nowhere did they testify that they saw the appellant with Exhibit “F” at Edor police station. Jonah Aloa (PW2) further testified that he made statement to the police on 13-02-1996. In another breath he said he did so on 01-02-1997. PW2 again admitted that the appellant came to his house on 12-02-1996 but under cross-examination the witness said it was in 1997. Was the appellant arrested in the house of PW2 on 12-02-1996 after 10:00pm or in 1997? Then how did he come to the house of Anthony Umoh (PW1) and Mary Anthony (PW5) on 13-02-1996 to engage Igulu Awara to convey him to Yala Nkum? Was he released that night or in the morning? There is no answer.
The evidence of the appellant is that Clement Oru was arrested with Exhibit “F” yet the prosecution did not call him as a witness to debunk the appellant’s story. The evidence of the appellant that Exhibit “F” was sold to him by Emmanuel Onele (PW4) though denied’ the witness admitted his name was written by the IPO on the Sales Agreement. Why would the IPO write PW4’s name on the sales Agreement? There is no explanation.
The appellant alleged that Clement Oru introduced him to PW4. His evidence is material if the story told by the appellant was to be discredited. Furthermore, the evidence of the IPO was very crucial to show why he scribbled PW4’s name on Exhibit “F”. Anthony Umoh (PW1) and Mary Anthony (PW5) could not have been telling the truth that on 13-02-1996 the appellant came to their house and Igulu Awara conveyed him to Yala Nkum. This contradicted the evidence of Peter Agbor (PW3) that he conveyed the appellant to Yala Nkum to pick the items from the bush. This further contradicted the evidence of John Aloa (PW2) that at his invitation about 10:00pm of 12-02-1996 the police came and immediately arrested the appellant for shooting someone in Amudo village in Ezza Local Government Area of Ebonyi State. There is no evidence that at the time of arrest the appellant was riding Exhibit “F”. The evidence of the appellant that Clement Oru was riding Exhibit “F” when he was arrested by the police remained unchallenged. The evidence that Emmanuel Onele (PW4) sold Exhibit “F” to the appellant on 14-02-1996 is supported by PW4 notwithstanding his barefaced denial. If the Sales Agreement had been tendered as an exhibit, that should have determined the truth that PW4 sold Exhibit “F” to the appellant on 14-02-1996.
Emmanuel Onele (PW4) ought to have been treated as a prime suspect if there was proper investigation of the alleged crime. If the crime occurred on 13-02-1996 and he sold the motorcycle to the appellant in his house on 14-02-1996 at N21,000.00 he alone could explain how he came by the motorbike.
Another disturbing aspect of the prosecution’s case is the evidence from Anthony Umoh (PW1) that Igulu Awara is dead. The witness stated that he made his statement to the police on 14-02-1996. He denied making a second statement thereafter. Pressed further he admitted making another statement on 07-03-1996. PW1 was the only prosecution witness that gave evidence that, “We have not found his dead body up till today. …A search was conducted and they found the dead body of my in-law in the bush. This was not my statement because it was after my statement to the police that the dead body was found. …I did not go to where they found the dead body. I do not know whether the (sic) exhumed the dead body. I do not think that my brother in-law sold his motorcycle. In my statement to the police, I said I suspected the accused of killing my brother-in-law.” See page 16 lines 24-31 and page 17 lines 1 – 3 of the printed record. PW1 gave evidence that the corpse of Igulu Awara was found upon a search by the police. That is not supported by the evidence of any other prosecution witness. The statement by Mary Anthony (PW5) that, “…Igulu is now dead. It is the accused who killed him” is not based on any credible evidence (See p.34 lines 22-23 of the printed record). Mary Anthony (PW5) further testified that, “I know who killed my brother. It is the accused who killed my brother. My brother died 13-02-1996… “(See p.35 lines 14-18 of the printed record). If John Aloa (PW2)’s evidence is that the appellant was arrested on 12-02-1996 after 10:00pm how could the appellant kill Igulu Awara on 13-02-1996? Did the police at Edor release the appellant that night or in the morning to enable him engage the services of Igulu Awara on 13-02-1996? There is no answer to these posers. The evidence of the prosecution witnesses is a bundle of contradictions. Two pieces of evidence contradict when they are by themselves inconsistent. See Gabriel vs The State (1989) 12 SCNJ 33 at 42; Ogoala vs The State (1991) 2 NWLR (Pt.175) 509 at 525-526.There is no eye witness as to who saw Igulu Awara conveying the appellant on his motorcycle from 43 Broader Road, 4 Corners Ikom to Yala Nkum. No matter how strong may be suspicion it cannot ground conviction for murder. See Anakwe vs The State (1976) 9-10 SC 255; Onah vs The State (1985) 3 NWLR (Pt.12) 236 and Nweke vs The State (1996) 2 NWLR (Pt.428) 11. Why did the prosecution fail to call the IPO to testify?
On 15-11-2005 Mr. Eyo for the State intimated the Court that the IPO had been located at last and sought for adjournment to 15-12-2005. This was granted. The IPO did not appear in Court that day and the case was further adjourned to 12-01-2006. There was no explanation for the failure of the IPO to appear and testify up to the time the appellant opened his defence on 14-06-2006. Nevertheless the learned trial Judge held at page 63 lines 15-24 of the printed record that the IPO had retired from service.
I have scanned the evidence of PW7 Obio Udubio (ASP). Nowhere did he testify that the IPO had retired from the police force and when. Neither did PW7 testify that the IPO handed over Exhibit “G” to him. The appellant named the IPO as Christopher Alozie who was at the police station Ikom and not Calabar. That it was at Ikom Police Station that he handed over his documents of title to Exhibit “F” to Christopher Alozie. The learned trial Judge must have acted on private information to arrive at the conclusion that the IPO had retired from the police force hence his inability to testify. Certainly there was no such evidence on the printed record. Trial judges are not to be influenced by private information in arriving at decisions. See Tadabe vs Bornu Native Authority (1967) NNLR 15.
In my humble view the IPO was a very crucial witness in this case for he alone could explain why he allegedly wrote PW4’s name on the Sales Agreement. He would have admitted or denied if the appellant had submitted title documents of Exhibit “F” to him. The prosecution is not expected to call all manner of witnesses except those whose evidence is vital to establish her case beyond reasonable doubt. In Alonge vs IGP (1959) 4 FSC 203 at 204 Ademola CJF, held that, “…It is enough if sufficient evidence is called to discharge the onus which the low lays upon the prosecution.”
There was no credible evidence linking the appellant with the murder of Igulu Awara. See Odili vs The State (1977) 4 SC 1 at 9; R vs Kuree 7 WACA 175; Ndebiti vs State (1965) NMLR 253.
The prosecution anchored the appellant’s conviction on the “last seen theory”, namely that where the suspect was last seen with the deceased, there is a duty on him to explain or show the deceased’s whereabout or how he met his death. But in this appeal no such evidence as to who last saw Igulu Awara conveying the appellant on his motorbike has testified. The court had no justification to draw a conclusion that it was the appellant who murdered Igulu Awara. There must be clear, cogent and unequivocal evidence as to who last saw the deceased for the conviction to be sustained. See Jua vs State (2010) 2 MJSC 152 at 175; Ozo vs The State (1971) NSCC 101. In employing circumstantial evidence to found conviction the courts take into consideration the general trend of the evidence that is adduced at the trial. In Ismail vs State (2011) 7 MJSC 28 at page 67 Tabai, JSC held as follows:
“The settled principle of law is that an accused person can properly be convicted upon circumstantial evidence only if it is cogent, positive and points unequivocally to him or her as the perpetrator of the offence. See Kalu vs. State (1993) 6 NWLR (Pt.300) 355 at 396-398; Esai ys The State (1976) 11 SC 39; Ukorah vs State (1977) 4 SC 167; Omogodo vs State (1951) 5 SC 5; Ibina vs State (1989) 5 NWLR (Pt.120) 238.In other words, the evidence should eliminate the possibility of some other person also as the perpetrator of the offence. If such a possibility is not eliminated, then the evidence admits of more than one conclusion. In such a situation, a doubt or doubts would be created and such doubts must necessarily be resolved in favour of the accused. ”
See also Okonofua vs State (1931) 1 NCR 145/155 lines 25-28 and R. vs Onufrejczyk (1955) 1 All E.R. 247.
Generally speaking, findings of fact by a trial Court are to be interfered with by an appellate Court only if they are either perverse or unsound. In Fabunmi vs Obaie (1968) NMLR 242 at 247 and Nasiru vs Commissioner of Police (1930) 2 NCR 213 at 219. In my humble view the learned trial Judge did not arrive at the decision to convict and sentence the appellant to death for the murder of Igulu Awara upon a proper evaluation and appraisal of the evidence, nor was the verdict reasonably justified or supported by credible evidence from the prosecution witnesses hence I had to deal with the evidence and make findings of fact as if sitting in the Court of trial. Only when the trial Court unquestionably evaluates the evidence and appraises the facts would an appellate Court refrain from substituting its views for that of the trial Court. See Akintoye vs Eyiyola (1968) NMLR 95; Queen vs Isa (1961) 1 ALL NLR 668.
I resolve issues 1 and 2 in favour of the appellant.
On the whole this appeal is allowed. The conviction and sentence to death of the appellant by the learned trial judge is set aside. The appellant is discharged and acquitted.
MOHAMMED LAWAL GARBA, J.C.A: I agree.
UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother JOSEPH TINE TUR, J.C.A.
In a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. Audu vs. State (2003) 7 NWLR Pt. 820 Pg. 516, Uguru vs. State (2002) 9 NWLR Pt. 771 Pg. 90, R. vs. Owe (1961) 2 SC NLR Pg. 354. In the instant case there is no direct evidence linking the accused to the death of the victim. Except
(1) He was last seen with the victim as alleged by PW.5 that the appellant hired the deceased to convey him to his destination.
(2) The deceased motorcycle was seen with the Appellant the very next day, the deceased disappeared.
There was a lot of circumstantial evidence linking the Appellant to the deceased but none was comprehensively tied to him. The failure of the prosecution to comprehensively link up these pieces of evidence is fatal to its case.
For circumstantial evidence to ground a conviction it must lead only to one conclusion, namely the guilt of the accused person. Where therefore, there are other possibilities in this case that other people other than the accused had an opportunity of committing this offence, the accused/appellant must be given that benefit of doubt.
Akinbisade vs. State (2006) 14 NWLR Pt. 1000 page 717.
There are many gaps in the prosecutions case, that it would be dangerous to convict the accused/Appellant on the evidence as presented. Suspicion, however strong, cannot constitute a crime or ground a conviction.
The evidence relied upon to establish a charge of murder may be direct or circumstantial. Whether the evidence is direct or circumstantial it must establish the guilt of the accused beyond reasonable doubt. The onus in this regard is on the prosecution and as a general rule it never shifts.
Ubani vs. State (2003) 18 NWLR Pt 851 page 22, Aruna vs. State (1990) 6 NWLR Pt 155 page 125, Ozaki Vs. State 1 NWLR Pt 124 page 92.
For this and the more comprehensive reasons and conclusions in the lead judgment, I too allow this appeal. I abide by all the consequential orders contained in the lead judgment.
Appearances
C. Ejike Ume For Appellant
AND
P.S. Bisong (DDPP Ministry Of Justice, Cross River State)
E.E. Amagama (SSC 2) For Respondent
