IKECHUKWU NWAOGU V. THE STATE
(2012)LCN/5683(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2012
CA/L/301/2005
RATIO
APPEAL: ISSUE FOR DETERMINATION: ISSUE FOR DETERMINATION MUST BE DISTILLED FROM GROUND OF APPEAL
It is a well settled principle, that any issue for determination of an appeal must be distilled from, or predicated upon, a competent ground (s) of appeal. As such, where a ground of appeal is expressly or apparently abandoned (as in the instant case), or incompetent for whatever reason, it’s imperative for the court to discountenance such an (abandoned or incompetent) ground. See CHUKWU VS. THE STATE (2007) 13 NWLR (Pt.1052) 430, 448 paragraphs F-H; BENDEX ENG CORP VS. EFFICIENT PETR LTD (2001) FWLR 118, 1208 paragraph C; (2001) 8 NWLR (Pt.715) 333; ABACHA VS. FAWEHINMI (2000) FWLR (Pt. 4) 533 at 615 paragraph G1 (2000) 16 NWLR (Pt. 660) 228; AKINLAGUN VS. OSHOISOKA (2006) 12 NWLR (Pt. 993) 60 at 80 paragraphs D-E 90 paragraphs B-C, H.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CRIMINAL LAW AND PROCEDURE: PRESUMPTION OF INNOCENCE
It’s a fundamental and well settled principle of criminal law, that by virtue of the unequivocal provisions of section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, any person who is charged with the commission of an offence, shall be presumed to be innocent until he is duly proved to be guilty.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CRIMINAL LAW AND PROCEDURE: PROVE BEYOND REASONABLE DOUBT
It is equally provided under section 138(1) of the Evidence Act, that if the commission of an offence (crime) by a party to any proceedings (whether civil or criminal) before a court is directly in issue, it must be proved beyond reasonable doubt. See CHUKWU VS. THE STATE (2007) 13 NWLR (Pt. 1052) 430, at 456 paragraphs E-G; and at 456 – 47 paragraphs G-B, where the Court of Appeal was recorded to have aptly held, inter alia, thus:
The combined effect of section 138(1) of the Evidence Act and section 36(5) of the 1999 Constitution is that under the Nigerian (adversarial) judicial system, the prosecution has a fundamental duty of proving its case beyond reasonable doubt against an accused person, otherwise the trial is vitiated and the accused person aught to be discharged and acquitted.
Per Saulawa JCA. See also ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567; UKPE VS. THE STATE (2001) 18 WRN 84; ATAN VS. THE STATE (1991) 2 NWLR (Pt. 172) 127; BAKARE VS. THE STATE (1987) 1 NWLR (Pt. 52) 579; EDET VS. FRN (2000) 18 WRN 13.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
MURDER: HOW TO PROVE THE DEATH OF A PERSON
Instructively, it’s a well settled fundamental principle, that a charge of murder is usually established when the prosecution proves beyond reasonable doubt that:
i. The deceased has died;
ii. The death of the deceased was as a result of the act or omission of the accused person. And
iii. That the act or omission of the accused person in question was intentional and with knowledge that death of grievous harm was its probable consequences:
See CHUKWU VS. THE STATE (supra) at 457-458 paragraphs E-A; 460 paragraphs D-E & 467 parags E-H; UGWU VS. STATE (2002) 9 NWLR (Pt. 771) 90; NWAEZE VS. STATE (1996) 7 NWLR (Pt. 428) 1; GIRA VS. STATE (1996) 4 NWLR (Pt. 443) 375; OGBA VS. STATE (1992) 2 NWLR (Pt. 222) 164; OGBA VS. STATE (1992) 2 NWLR (Pt. 222) 164 ?PG 15 194; NDIKE VS. STATE (1994) 8 NWLR (Pt 360) 33 at 467; AKPAN VS. OKAGBU (1994) 9 NWLR (Pt. 368) 301 at 347-361; ADEKUNLE VS. STATE (1989) 5 NWLR (Pt.123) 505.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
IKECHUKWU NWAOGU Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: (Delivering the Leading Judgment): The present appeal is against the judgment of the High Court of Lagos State, which was delivered by the Honourable Justice J. A. Oduneye on December 5, 2003 in suit No. ID/28C/96. By the judgment in question, the court below convicted the present Appellant and 4 others upon a one count charge of murder, contrary to section 319 of the Criminal Code Law CAP 32 volume 2, Laws of Lagos State, 1994. The Appellant was accordingly sentenced (along with the four other accused persons) to death by hanging. Being dissatisfied with the conviction and sentence thereof, the Appellant filed a notice of appeal (dated October 29, 2010) pursuant to the leave granted thereto by this court on November 4, 2010.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL
The facts and circumstances leading to the instant appeal are quite discernible from the records of appeal. On February 2, 1995, at about 7:30pm. Daniel Obi of No. 228 Amaechi Lane Layinka Ajegunle was allegedly murdered by the Appellant and some other persons. The Appellant and others were later arrested and taken to the Police Station Ajegunle. By the record of appeal (pages 24-25), February 5, 1998 was the very first day the Appellant and others were formally arraigned before the lower court for trial. That was the day the charge (information) was read thereto, and to which they pleaded not guilty. In an attempt to prove the case thereof, the prosecution called a total of four witnesses and tendered various exhibits, which were admitted as Exhibits A-E, respectively.
Upon the closure of the prosecution’s case on February 28, 2002, the Appellant and co-accused persons made a no case submission, which was however overruled by the court below (on October 24, 2002) to the effect thus:
I therefore rule that the prosecution has made out a prima facie case against all the accused persons. The no case submission is therefore overruled and I call on each of the five accused persons to enter their (sic) defence. See pages 88-93 of the Record.
Consequent upon the over ruling of the no case submission in question, the Appellant and four others testified in their respective defence.
On December 5, 2003, the Court below delivered the vexed judgment to the conclusive effect, inter alia, thus:
The 2nd accused (Appellant) was at the scene and he had a common intention with the other 8 boys to use the dried cornflower as bait to rob. It was the 4th accused that made statement that all the nine boys participated in the fight. The 2nd accused did not state that he took part in the fight.
I hold that there is a common purpose or common intention by all the accused persons (sic). This will make the act of one accused be act, of the other as the offence committed is in furtherance of the prosecution of this unlawful common purpose – see the case of Ogaofor vs the Queen (1955) 15 WACA.
As to whether confessional statement made by the accused can on its own ground a conviction, See the case of Adio vs The State (supra) which is to the effect that if the said statement is held to be voluntarily made it will ground a conviction.
I am therefore of the view that the 4th accused Tony Ataloye the 4th accused is guilty of the charge of murder of Daniel Obi,
The other four accused (a) William Owodo – 1st accused, (b) Ikechukwu Nwaogu 2nd accused, (c) Anefok Ukpa – 3rd accused and (d) Amaika Doripolo – 5th accused are also guilty of the charge of murder of Daniel Obi as they are caught by section 8 of the Criminal code. They held a common purpose to prosecute an unlawful act.
I therefore sentence all the five accused persons to death by hanging. May the good Lord have mercy on their souls.
SGN
J.A. ODUNEYE
JUDGE
As alluded to above, it was against the conviction and sentence in question, passed there upon by the court below that the present appeal was filed by the Appellant. The record of appeal was said to have been transmitted from the trial court to this court on August 31, 2005. The Appellant’s brief of argument was filed on February 1, 2011, but deemed properly filed and served on February 15, 2012. The Respondent’s brief was equally filed on May 10, 2012, but deemed properly filed and served on June 15, 2012. In response to the Respondent’s brief, the Appellant filed a reply brief on July 20, 2012.
On October 11, 2012, when the appeal first came up for hearing the learned counsel had the liberty of adopting the argument contained in the respective briefs thereof. Thus, resulting in reserving the appeal for delivery of judgment. Prior to the hearing of the appeal, the Appellant’s learned counsel, Adeniyi Adegboamire Esq; made an undertaking to cause the original copies of Exhibits A – E that were admitted in evidence at the trial court. Consequent upon which, the court granted the learned counsel 14 days within which to cause the original copies of the said exhibits to be so transmitted to this court.
In the said brief thereof, the Appellant’s learned counsel has raised two issues for determination viz:
(a) Whether the trial court was right in holding that the prosecution had proved the offence of murder against the Appellant beyond reasonable doubt despite the manifest and glaring lack of evidence? (This issue arises from grounds nine and ten of the notice of appeal).
(b) Whether the defence of Alibi was available to the Appellant in the peculiar circumstances of this case? (This issue arises from grounds four of the Notice of Appeal.)
On the other hand, the Respondent’s learned counsel has in principle adopted the two issues formulated in the Appellant’s brief for determination of the appeal. Essentially, the Appellant’s reply brief relates to the Respondent’s argument at pages 9 – 11 of the brief thereof. The Appellant accordingly raised therein an issue of law, to the effect thus –
(a) Whether in the face of the admission by the Respondent of glaring doubts created by the contradictions inherent in the evidence of PW3, the lower court was right in law to have resolved the contradictions against the Appellant?
I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the argument of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole.
It’s instructive, that the notice of appeal is predicated upon a total of ten (10) grounds. Ironically, however, both issues 1 and 2 formulated in the Appellant’s brief (and duly adopted by the Respondent in the brief thereof) were distilled from grounds 9 & 10, and 4, respectively. The implication of which is that grounds 1, 2, 3, 5, 6, 7 & 8 of the notice of appeal ought to be deemed to have been abandoned by the Appellant. Thus, the grounds in question are no longer relevant for the determination of the appeal.
It is a well settled principle, that any issue for determination of an appeal must be distilled from, or predicated upon, a competent ground (s) of appeal. As such, where a ground of appeal is expressly or apparently abandoned (as in the instant case), or incompetent for whatever reason, it’s imperative for the court to discountenance such an (abandoned or incompetent) ground. See CHUKWU VS. THE STATE (2007) 13 NWLR (Pt.1052) 430, 448 paragraphs F-H; BENDEX ENG CORP VS. EFFICIENT PETR LTD (2001) FWLR 118, 1208 paragraph C; (2001) 8 NWLR (Pt.715) 333; ABACHA VS. FAWEHINMI (2000) FWLR (Pt. 4) 533 at 615 paragraph G1 (2000) 16 NWLR (Pt. 660) 228; AKINLAGUN VS. OSHOISOKA (2006) 12 NWLR (Pt. 993) 60 at 80 paragraphs D-E 90 paragraphs B-C, H.
As alluded to above, issue No. 1 of the Appellant is predicated upon two grounds of the notice of appeal namely: Grounds 9 & 10. Contrariwise, issue No. 2, is predicated on ground 4. Without any further hesitation, the said grounds 1, 2, 3, 5, 6, 7 & 8 of the notice of appeal deemed to have been abandoned by the Appellant, are each hereby discountenanced.
In determining the appeal, I have deemed it appropriate to adopt the Appellant’s issues 1 & 2. In my considered view, both issues are adequate to enable the court determine the appeal, one way or the other.
ISSUE NO. 1
The first issue raises the vexed question of whether or not the trial court was right in holding that the prosecution had proved the offence of murder against the Appellant beyond reasonable doubt, despite the manifest and glaring lack of evidence. As alluded to above, I have painstakingly considered the submissions of the learned counsel, contained in the respective briefs thereof.
It’s a fundamental and well settled principle of criminal law, that by virtue of the unequivocal provisions of section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, any person who is charged with the commission of an offence, shall be presumed to be innocent until he is duly proved to be guilty.
It is equally provided under section 138(1) of the Evidence Act, that if the commission of an offence (crime) by a party to any proceedings (whether civil or criminal) before a court is directly in issue, it must be proved beyond reasonable doubt. See CHUKWU VS. THE STATE (2007) 13 NWLR (Pt. 1052) 430, at 456 paragraphs E-G; and at 456 – 47 paragraphs G-B, where the Court of Appeal was recorded to have aptly held, inter alia, thus:
The combined effect of section 138(1) of the Evidence Act and section 36(5) of the 1999 Constitution is that under the Nigerian (adversarial) judicial system, the prosecution has a fundamental duty of proving its case beyond reasonable doubt against an accused person, otherwise the trial is vitiated and the accused person aught to be discharged and acquitted.
Per Saulawa JCA. See also ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567; UKPE VS. THE STATE (2001) 18 WRN 84; ATAN VS. THE STATE (1991) 2 NWLR (Pt. 172) 127; BAKARE VS. THE STATE (1987) 1 NWLR (Pt. 52) 579; EDET VS. FRN (2000) 18 WRN 13.
As alluded to above, the charge against the Appellant (and the co-accused persons thereof) was contrary to section 319 of the Criminal Code Law of Lagos State, 1994. Instructively, it’s a well settled fundamental principle, that a charge of murder is usually established when the prosecution proves beyond reasonable doubt that:
i. The deceased has died;
ii. The death of the deceased was as a result of the act or omission of the accused person. And
iii. That the act or omission of the accused person in question was intentional and with knowledge that death of grievous harm was its probable consequences:
See CHUKWU VS. THE STATE (supra) at 457-458 paragraphs E-A; 460 paragraphs D-E & 467 parags E-H; UGWU VS. STATE (2002) 9 NWLR (Pt. 771) 90; NWAEZE VS. STATE (1996) 7 NWLR (Pt. 428) 1; GIRA VS. STATE (1996) 4 NWLR (Pt. 443) 375; OGBA VS. STATE (1992) 2 NWLR (Pt. 222) 164; OGBA VS. STATE (1992) 2 NWLR (Pt. 222) 164 ?PG 15 194; NDIKE VS. STATE (1994) 8 NWLR (Pt 360) 33 at 467; AKPAN VS. OKAGBU (1994) 9 NWLR (Pt. 368) 301 at 347-361; ADEKUNLE VS. STATE (1989) 5 NWLR (Pt.123) 505.
(i) THE DEATH OF THE DECEASED PERSON:
With particular regard to the first ingredient of the charge alluded to above, parties are ad idem that the death of the deceased person, one DANIEL OBI had indeed occurred, there is no doubt about that fact. And the finding of the court below was most unequivocal in that regard. The finding of the trial court at page 159, lines 16-21, of the record is to the effect thus:
There is evidence that Daniel Obi died. This was confirmed by PW4 Dr. Omotobora and PW2- Emmanuel Obi who identified his corpse to Dr. Omotobora – PW4 the doctor conducted a post mortem and his conclusion was that death of the deceased was due to a severe haemorrhage.
Most particularly, PW2 (Emmanuel Obi) was the deceased person’s senior brother. He (PW2) testified to the effect, inter alia, that he followed the deceased to the hospital, where he identified the corpse thereof to the medical Doctor (PW4).
The finding of the court below regarding the death of the deceased person (Daniel Obi) is at page 159, lines, 16 – 21 of the record of appeal. According to the lower court.
There is evidence that Daniel Obi died. This is confirmed by PW4 Dr. Omotobora and PW2 – Emmanuel Obi who identify (sic) his corpse to Dr. Omotobora – PW4. PW4 the doctor conducted a post mortem and his conclusion was that death of the deceased was due to a severe haemorrhage.
The PW2’s viva voce evidence is found at page 31 of the record. According to PW2 –
The deceased is my junior brother. He died on February 2, 1995 at Ajegunle in an hospital. I have forgotten the name of the hospital. The body was taken to the General Hospital, Lagos. I followed the body to the General Hospital and identified the body of the deceased to the doctor as – Daniel Obi.
The PW4, Dr. Olufemi Adegboyega Omotora had told the lower court thus:
I did carry out post mortem exam in respect of Daniel Obi on February 2, 1995, I prepared and signed a report of my findings … I carried out the examination on February 4, 1995 at about noon on a corpse named Obi Daniel. He was 30 years old male. The summary of my findings are as follows. I found a moderately severely pale young man. There was a transverse deep laceration about 5 centimeter wide in the right orbital fossa. That is pit of the elbow point. The neck also appeared tcosted (sic) and my conclusion was death as a result of severe haemorrhage.
The corpse was identified by one Emmanuel Obi.
Thus, in view of the above unequivocal testimonies of PW2 and PW4, the fact that one Daniel Obi of about 30 years of age died on February 2, 1995 is no longer contestable. The fact that the post mortem examination report regarding the corpse of the deceased person, identified by the PW2, was not tendered and admitted in evidence at the trial, notwithstanding. It’s a well settled principle, that it’s not in all cases that an autopsy examination report is indispensable. In the case of CHUKWU VS. THE STATE (supra), this court has, most aptly, reiterated the trite fundamental principle, thus:
In a murder case, the cause of death of the deceased person is a fact in issue that must be proved beyond reasonable doubt by the prosecution. It is necessary for the prosecution to adduce direct evidence linking the cause of death of the deceased with the accused. Where there is none, then medical evidence becomes a sine quo non. However, where the cause of death of the deceased is obvious, and has been proved beyond reasonable doubt by the prosecution, medical evidence is not necessary and can thus be dispensed with by the trial court- In other words, it is not in all murder cases that medical or autopsy reports are necessary in proving cause of death of deceased person.
Per Saulawa, JCA at 466 – 467 paragraphs A-E. See also OPARA VS. THE STATE (2006) 9 NWLR (Pt. 986) 508; IGAGO VS, STATE (1999) 6 NWLR (Pt. 608) 568; EMWENYA VS. AG BENDEL STATE (1993) 6 NWLR (Pt. 297) 29; ADAMU VS. KANO STATE (1956) SCNLR 65.
In the light of the evidence of the PW1, PW2, PW3 and PW4, the fact that the 30 years old Daniel Obi in question died on February 2, 1995 at Ajegunle is not in doubt. Thus, the prosecution has proved the first ingredient of the charge beyond reasonable doubt.
ii. THE CAUSE OF DEATH OF THE DECEASED PERSON
As alluded to above, the second ingredient of the charge is whether the prosecution has been able to prove, beyond reasonable doubt, that the death of the deceased, Daniel Obi, had resulted from the act (or omission) of the present Appellant.
I have hereinabove alluded to the trite fundamental principle, that by the combined effect of the provisions of section 36(5) of the 1999 Constitution, as amended, and section 138(1) of the Evidence Act, as amended, the prosecution has a duty of proving the case thereof beyond reasonable doubt against the accused person (Appellant). Otherwise, the accused shall be entitled to be discharged and acquitted.
Indeed, it’s a trite principle, that the prosecution has the burden of establishing beyond reasonable doubt, that it was the act (or omission) of the accused (Appellant) that caused the death of the deceased person. See ADEKUNLE VS. STATE (1989) 5 NWLR (Pt. 123) 505 at 515, per Nnamani JSC of blessed memory:
It is indeed trite law that the prosecution has to establish the case of death with certainty to show that it was the act, of the accused person that caused the death.
As alluded to above, at the trial, the prosecution had called a total of four witnesses – PW1 – PW4, respectively. The evidence of the PW1 Obed Obi, was to the effect that he was the junior brother of the deceased. He did not at all link the death of the deceased to the Appellant. Under cross examination (page 30 of the Record), the PW1 was recorded to have stated the obvious thus:
I am not an eye witness. I was told by the IPO that a gang of boys killed my brother. I cannot remember the name of the IPO.
Thus, contrary to the submission of the Appellant’s learned counsel, at page 10, line 17 of the brief thereof, the PW1 did not mention “armed robbers” in his testimony under cross examination. However, I agree with the learned counsel’s view, that the testimony of PW1 amounts to a hearsay, in as much as it relates to what the IPO told him. What’s more, as rightly submitted by Appellant’s counsel, there is nothing positive in the evidence of PW1 as to –
‘Irresistibly suggest that the act, of the Appellant, … caused the death of the deceased or that the said act was intentionally done with knowledge that death or grievous bodily harm was it’s probable consequence,”
The evidence of the PW2 was merely to the effect that he had followed the corpse of his deceased younger brother (Daniel Obi) to General Hospital, and that he identified same to the medical doctor, PW4. Thus, he did not link the Appellant with the death of the deceased person.
The PW3, Inspector Misafiu Lasisi, testified to the effect, inter alia, that in the course of the investigation of the case, he arrested the Appellant and thereafter recorded his confessional statement (Exhibit B). Under cross-examination, the PW3 was recorded to have, inter alia testified as follows:
I cautioned them and they volunteered their statement .., the accused authorized me to write for them. I did not write down what pleases me.
I visited the scene of crime after 5 days of the production of the 5 accused at panti. The object of my visit was to prove the case of murder. There was particulars of dried blood where the accused (sic) fell down when he was stabbed. It was former IPO Cyril John who told me this. A photograph of the deceased was taken at that particular spot. The former IPO was present when the photograph was taken.
The people around the scene told me that the accused persons were bad boys terrorizing people in the area … The broken bottle used by the accused was registered and is with the exhibit keeper, (Pages 59 – 60 of Record).
In the course of the judgment in question, the trial court has alluded to the alleged confessional statements of the five accused persons (the Appellant inclusive). The finding of the trial court, at page 160 of the Record, is to the effect, inter alia thus:
The five accused had a common purpose to use the dried cassava as bait to pounce on anybody who stepped on sand with the aim of robbing such a person of his property.
The deceased Daniel Obi was a victim of the plan. All the accused were at the scene. One of them fought with the deceased. It was the 4th accused who actually stabbed the deceased with broken bottle while the 1st accused thereon(sic) native lamp that hit the deceased at the back of the head. It was the stab wounwd that resulted in the loss of blood that killed the deceased.
All the five accused persons were active with common intention to prosecute an unlawful purpose in doing so the deceased was killed. All the five accused persons are caught under section 8 of the criminal code.
The confessional statements referred to by the trial court were those admitted as Exhibit A, B, C, D & E, respectively. Most particularly, Exhibit B relates to the present Appellant. It is to the effect, inter alia thus:
… I Ikechukwu Nwaogu after I have been duly charged and cautioned in English …
I voluntarily elect to state as follows that I am a Technical of refrigerator, I was born 19 years ago in Owerri in Imo State ….on the 1st day of February 1995 at 8pm at Amachu Street, I was with eight other boys (1) Amaike (2) Enifok (3) Robosa (4) Sunday (5) Wassad (6) William (7) Anthony and (8) Tony. We were playing cards. There was a dried corn flower (sic) which we planned to use in looking for trouble for people that passing. A man stepped on it and apologize. The second man who is now dead stepped out while Robosa went to challenge him. The man was holding a nylon bags. As him and Robosa were gagging (sic) themselves. Tony Alias Shaba joined them. He was also dragging the nylon with the man.
… as heard them we say that Tony has stabbed the man with broken bottle on his right hand. We heard that the man was taken to a nearby hospital, where he later died. We all met with Tony to ask why he stabbed the man where he can die. That all of us in trouble. Tony said that Williams hit him with a tin of a lantern called “atupa”. That is how we were arrested myself and two other Williams and (sic) Tony. It was Tony who killed the man.
I have critically, albeit dispassionately, considered the testimonies of the prosecution witnesses, especially that of the PW3, the IPO vis-a-vis Exhibit B (Appellant’s alleged confessionals statement). As rightly argued by the Appellant’s learned counsel, at pages 12 & 13 of the brief thereof, the reasonable conclusions that must be drawn from the PW3’s testimony are that –
i. The PW3 was not an eye witness to the commission of the offence in question;
ii. The PW3 had admitted recording the said Exhibit B for the Appellant;
iii. The PW3 visited the scene of the crime only five days after the death of the deceased;
iv. The testimony of PW3 regarding the Appellant’s character was predicated upon what the former IPO, Cyril John, told him, thus amounting to a hearsay evidence.
Regarding Exhibit B, the finding of the trial court thereon, is to the effect that the defence counsel did not object to the admissibility thereof. The court thus came to the conclusion that the alleged confessional statement (Exhibit B) was –
“… voluntarily made and properly admitted in evidence.”
Having critically perused the contents of Exhibit B, I am of the firm view that the exhibit in question is far from being qualified as a confessional statement, within the purview of the provisions of section 27(2) of the Evidence Act, which provides thus:
“27-
(2) Confessions if voluntary are deemed to be relevant as against the persons who make them only”.
As reproduced in verbatim above, there is nowhere in Exhibit B the Appellant confessed or admitted to have participated in the fight with the deceased person. According to the Appellant in Exhibit B –
As we neared them we saw that Tony has stabbed the man with broken bottle on his right hand. And blood was coming out we all ran away. We heard that the man was taken to a nearby hospital where he later died.
With due respect to the trial court, the conclusion thereby reached, to the effect that by Exhibit B, the Appellant has confessed to the commission of the offence of murder of the deceased person is perverse, to say the least! As aptly postulated by the Appellant’s learned counsel, the trial court ought to have relied upon facts and/or evidence outside the contents of Exhibit B, before arriving at that conclusion.
I would want to believe, that the instant case is a typical example of a situation in which there is a desirability to have some corroborated evidence, no matter how slight, of circumstances that make it probable that the confession is true and correct. This is more so, because courts are enjoined not to generally be disposed to relying upon a confession without testing the veracity of the truth thereof. See NWAEBONY VS. STATE (1994) 5 NWLR (Pt. 343) 138 at 1571, in which the apex court was reported to have laid down some veritable rules in order to guide a court in deciding the weight to be attached to confessional statement of an accused person. The rules or guide lines are to the effect of –
a) Whether there is anything outside the confession to show that it’s true;
b) Whether it is corroborated;
c) Whether the relevant statements of facts made therein are true as far as they can be stated;
d) Whether the accused had the opportunity of committing murder;
e) Whether the confession was possible;
f) Whether the confessional statement is consistent with other facts which have been ascertained and proved.
In the instant case, there is no evidence extraneous to the alleged confessional statement (Exhibit B), to confirm the accuracy therein that the Appellant, either by act or omission, caused the death of the deceased person. The PW3, was the prosecution witness who testified regarding the Appellant. However, the testimony of the PW3 was neither a direct nor circumstantial evidence to justify linking the Appellant with the death of the deceased. I entirely agree with the Appellant’s learned counsel, to the effect that:
“The said confessional statement in fact proves the innocence of the Appellant”
The PW3 was never an eye witness. There is no cogent evidence to establish that the Appellant had in fact participated in the fight that led to the unfortunate death of the deceased person. The alleged confessional statement of the Appellant (Exhibit B), is to the effect that the Appellant was actually neither at the scene of crime, nor participated in the fight that resulted in the death of the deceased. What is more, the evidence of the PW3, at page 58 of the Record, to the effect that:
Five accused persons were near the scene gambling with others at large…
It was the 3rd accused that stabbed the deceased…is a confirmation of that fact. Undoubtedly, the phrases “were near the scene” and “were at the scene” cannot be attributed exactly the same meaning. And the reason is quite obvious! Significantly, the word ‘at’ has a litany of meanings. Most especially, when used as a preposition, the word ‘at’ denotes where (place) something (somebody) is, or where something happens – eg. at the corner of the street at the scene of accident or crime, et al.
Contrariwise, the word ‘near’, as an adjective, simply means a short distance away (from something etc); close: his house is near (the court). See OXFORD ADVANCED LEARNER’S DICTIONARY OF CURRENT ENGLISH, 6TH EDITION, 2001, at 60 & 782, respectively.
Instructively, the word ‘near’ as an adverb & adjective, denotes –
Close to; not far away, as a measure of distance – the neighbor’s houses are near one another.” See BLACKS LAW DICTIONARY, 9th Edition, 2009 at 1129.
Thus, in view of the above definitions of terms, the words ‘at’ and ‘near’ are neither of the same meaning, nor synonymous. In essence, they are not interchangeable. Undoubtedly, the Appellant could not rightly be said to have been ‘at the scene of crime’, at the material time the deceased was stabbed to death. Curiously, the trial court was recorded (at page 160 of the Record) to have held, albeit erroneously in my view, that –
“The deceased Daniel Obi was a victim of the plan. All the accused were at the scene.”
Yet, at page 165 of the same Record, the trial court found, inter alia, that-
The 3rd & 5th accused were at the scene and they had a common intention with the other 7 boys to use the dried corn flour (sic) as bait for rob. They stated that they did not take part in the fight.
From the above it is clear that the 1st and 4th accused took part in the fight and it was the 4th accused who actually stabbed the deceased with the broken bottle and thus led to the death of the deceased.
With particular regard to the alleged Appellant’s confessional statement (Exhibit B) the trite principle is that a confession is relevant only where it’s established to have been obtained voluntarily. And the burden of proving beyond reasonable doubt that a confession was made voluntarily rests squarely upon the prosecution. See section 27(2) of the Evidence Act; ADEKANBI VS. AG WN (1961) ALL NLR 47; R. VS. PRIESTLEY (1966) 5 CR. APP REPORT 183, 188. ASHAKE VS. STATE (1968) 2 ALL NLR 198; AUTA VS. STATE (1975) NWLR 60, 65 SC.
In the same vain, by virtue of the provisions of section 28 of the Evidence Act (supra), a confession made by an accused person is totally irrelevant in a criminal trial, if the making thereof appears to the court to have been caused by any inducement, threat or promise, in relation to the charge against the accused person. R. VS. MIDDLETON (1974) 2 ER 1190; (1975) QB 191; OWIE VS. STATE (1985) 4 2756; R. VS. VIAPBONG (1961) NWLR 47; R. VS. KWAGHBO (1962) NWLR 4; MADU FATUMANY VS. R. 1950) 13 LOA CA 39; R VS. ADEOE & ANR (1935) 2 WACA 353; R. VS. HASKE (1961) ALL NLR 330; IGBINOBIA VS. STATE (1981) 2 SC 5, 16; R. VS. EBHOMIEN & ORS (1963) 1 ALL NLR 365; R. VS. EBONG (1947) 12 WACA 139.
Most particularly, in the case of R. VS. VIAPBONG (supra), it was aptly held by Hurley, SPI that –
The caution was clearly an inducement to speak. An accused person can hardly be expected to keep silent when told that he need not say anything, but that anything he says will be written down and taken before the court to be his evidence, or evidence for him; he is being given amply sufficient grounds for supposing that by speaking he will avoid the evil of being condemned unheard.
In the circumstances, there is every cogent reasons for me to hold, that the trial court ought to have exercised extra-caution in relying on Exhibit B in convicting and sentencing the Appellant.
iv. ON WHETHER THE CAUSE OF DEATH OF THE DECEASED PERSON WAS PREMEDITATED:
Regarding whether, or not, the Appellant had (a premeditated) intention to murder the deceased person, the trial court was recorded to have found at page 166,lines 3-11 of the Record, thus:
I am therefore of the view that the 4th accused Tony Ataloye is guilty of due charge of murder of Daniel
Obi,
The other four accused (a) William – 1st accused (b) Ikechukwu Nwaogu – 2nd accused (Appellant); (c)
Anefok Ukpa – 3rd accused and (d) Amaike Doripelo – 5th accused are also guilty of the charge of murder of Daniel Obi as they are caught by section 8 of the Criminal Code. They had a common purpose to prosecute an unlawful purpose.
As established above, the Appellant was not (exactly) at the scene of crime at the time the deceased person (Daniel Obi) was stabbed to death. The conviction and sentence passed upon the Appellant was solely predicated upon the belief of the lower court that the provision of section 8 of the Criminal code (supra) was applicable thereto. With due respect to the trial court, the evidence available in the records does not seem to support that proposition.
The provision of section 8 of the Criminal code is to the following effect:
8. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
The courts have over the years, in a plethora of authorities, evolved a veritable principle in interpreting the provision of section 8 of the Criminal Code (supra). The Supreme Court has held, rather authoritatively, that the prosecution bears the burden of proving, beyond reasonable doubt, that –
(a) There was an evidence showing that the accused person had formed a common intention to prosecute an unlawful purpose together.
(b) In furtherance of the execution of the unlawful purpose a purpose was willed in circumstances resulting in murder; and
(c) The death of that deceased was a probable consequence of the prosecution of the unlawful purpose,
See MBANG VS. STATE (2009) 18 NWIR (Pt.1172) 140 157 – 158 paragraphs H-B.
The term ‘probable consequence’ has been defined as –
“An effect or result that is more likely than not to follow its supposed cause.”
See BLACK’S LAW DICTIONARY 9th, Edition, at 1321.
Most remarkably, the term ‘probable consequence’ has over the years been a subject of judicial interpretation. In the case of MOHAMMED VS. STATE (1980) NSCC 152, for instance, the Supreme Court was recorded to have aptly held, inter alia that:
The consequence of an act may be said to be probable if a reasonable man would consider its occurrence to be natural and normal effect of the act” I do not friwill(sic) a reasonable man would conclude that death in such a violent manner may be a probable consequence of the simple assault … nobody was armed at the initial stage of the fight. Per Bello JSC (most remarkable and blessed memory, at 160I.
In the above case of MOHAMEMD VS. STATE, the 1st Appellant was indeed at the scene of the assault that resulted in the death of the deceased.
The 1st Appellant, as a matter of fact, did slap some persons, other than the deceased. Yet, the Apex court, in its wisdom, found as it did that the 1st Appellant was not caught by the web of the provision of section 8 of the Criminal Code of Anambra State, which is pari material with section 8 of the Criminal Code Law of Lagos state (supra).
A fortiori, the Apex court held that though the 1st Appellant was indeed at the scene, he did not (actually) partake in the fight that led to the death of the deceased person. Thus, he had no common intention with the co-accused persons to kill the deceased person. Not surprisingly, the conviction and sentence of the Appellant by the trial court and the Court of Appeal were set aside by the Supreme Court. Consequently, he was discharged and acquitted.
Distinguishably, the Appellant in the instant case was not (and could not rightly be said to have been) at the scene of the fight, which resulted in the unfortunate death of the deceased person. Secondly, no evidence at all was tendered to establish that the Appellant was actually at the scene of the fight when the deceased was stabbed to death. In my considered view, the Appellant could not rightly be said to have had a common intention or purpose with any of the co-accused persons thereof to murder the deceased person. See MOHAMMED VS. STATE (supra).
In the case of NWAFOR VS. STATE (1965) 1 ALL NLR 103, it was aptly held that the possession of a firearms by group of persons who set out to burgle a house, cannot be considered as possession of firearms by all of them, in the absence of proof that it was part of their agreement to have firearms. In the instant case, there is no evidence showing the Appellant was in any way armed, or that he was aware of the bottle picked up by the 4th accused would be used in the course of the altercation with the deceased person. See NWANKWO ALA & ANR VS. STATE (2006) 14 NWLR (Pt. 1000) 663 at 683, wherein the Apex Court held, inter alia thus:
The mere fact of common intention manifesting in the execution of the common object is enough to consider each of the accused persons in the group guilty of the offence…
In impractical terms, common intention is capable of positive (prove (sic). It’s existence can only be inferred from the circumstances, thus closed. Per Tabai, JSC at 633 paragraph A-C see also IKEMSON & ORS VS. STATE (1989) 3 NWLR (PL 170) 455 at 466; OFOR VS. QUEEN (1955) 15 WACA 4- 5; ADEKUN VS. STATE (1989) 505 at 518 respectively.
In view of the foregoing far-reaching postulation, I uphold the submission of the Appellant’s learned counsel urging upon the court to hold, that the prosecution has failed to prove that the Appellant was acting in concert with co-accused persons thereof to kill the deceased person in question.
Thus, the first issue ought to be, and same is hereby resolved in favour of the Appellant, against the Respondent.
ISSUE NO. 2
The second issue raises the vexed fundamental question of whether the defence of alibi was available to the Appellant, in the peculiar circumstances of the instant case. The term alibi is of Latin derivative. It literally means “elsewhere”. As a matter of principle, it denotes a defense based on the impossibility (impracticability) of a defendant’s guilt by placing him in a location other than the scene of the crime at the relevant time for the commission thereof). Simply put, alibi means-
“The fact or state of having been elsewhere when an offence was committed,”
See BLACK’S LAW DICTIONARY, 9th Edition, at 84; STATE VS. AZEEZ (2008) ALL FWLR (Pt. 424) 1423 at 1447; EZE VS. STATE (19761) 1 SC 1251.
Indeed, the principle has been well settled, that once an accused person raises a defence of alibi, it behoves upon the prosecution to conduct an investigation with a view to rebutting or debunking the allegation in question. See AGBANYI VS. STATE (1995) 1 NWLR (Pt. 269) 1 at 27; ESANGBEDO VS. STATE (1980) 20 NSCC (Pt. 111) 23 at 31. The case of the Appellant was that he was not at the scene of the fight, which resulted in the death of the deceased person. Thus, I agree with the Appellant’s learned counsel that –
This clearly shows that the Appellant was not at the place of the commission of the crime at the material time, and therefore could not have had the opportunity of committing the crime for which he was charged.
According to the Appellant in Exhibit B:
As we heard them, we saw that Tony stabbed the man with broken bottle on his right hand. And blood was coming out.”
Clearly, as postulated under the issue No. 1, being ‘near scene of crime’, cannot mean the same thing as being “at the scene of crime”. Undoubtedly, the two phrases are neither synonymous, nor inter-chargeable with one another.
Ironically, however, the lower court came to the conclusion, albeit erroneously, that –
In this case, the five accused persons raised their alibi for the first time in court when they given of evidence in court. I am therefore of the view that the alibi raised is an afterthought and is not capable of being investigated. The statements of the five accused persons that they were not at the scene of crime and that they were tortured before they were forced to sign their confessional statements are thereby rejected. I hold and believe that all the live accused persons present at the scene of the crime and also that their confessional statements to the Police were voluntarily made and I do believe the confessions of the said statements. See page 163, lines 7 – 17 of the Record.
Undoubtedly, the above findings of the lower court are perversely erroneous, as they are not supported by the evidence (most especially Exhibit B) before the court in question.
From the outset [at page 163 of the Record), the trial court has rightly referred to the decision in OTTI VS. STATE (1993) 4 NWLR (Pt. 290) 675 at 678 (ratio 4), regarding the trite principle, to the effect that the plea of alibi should be raised at the earliest opportunity so as to give the Police an opportunity to investigate the alibi.
Ironically, however, the trial court faltered, and thus came to the wrong and perverse conclusion, that the alibi raised by the Appellant –
“Is an afterthought and is not capable of being investigated” See page 163, line 7 – 17 of the Record.
In the circumstance, I uphold the Appellant learned counsel’s submission, to the effect that the prosecution, having failed to rebut the Appellant’s defence of alibi, the lower court’s dismissal of the alibi was wrong and not supported by evidence adduced at the trial. And I so hold.
Thus, the issue No. 2 is answered in the affirmative, and accordingly resolved in favour of the Appellant.
Hence, having resolved both issues 1 & 2 in favour of the Appellant, there is no gain saying the fact that appeal is meritorious. The conviction and sentence of death by hanging passed upon the Appellant by the court below are liable to, in the circumstance, be set aside and quashed by this court, for being perverse. It was once aptly held by this court, that-
It is indeed trite, that a decision of a court could be said to be perverse when it ignores material evidence of facts adduced before it, thus, leading to miscarriage of justice to the affected party. Hence, in such a case, an appellate court has a fundamental duty to interfere with and set aside the decision in question. See CHUKWU VS. STATE (2007) 13 NWLR (Pt. 1052) 430 at 468 paragraphs A-B per Saulawa JCA, See also MOGAJI VS. ODOFIN (1978) 4 SC 91i QUEEN VS. OGODO (1961) 2 SCNLR 366.
It’s trite, that a court of law does not derive any joy from seeing offenders escaping the penalty they richly deserve. However, as once aptly, and rather authoritatively, held by the Supreme Court-
But until they (offenders) are proved guilty under the appropriate law in our law courts, they are entitled to walk about in our streets, treading the Nigerian soil and breathe the Nigeria air as freely as innocent men and women. See SAIDU VS. STATE (1982) NC at 49.
In the light of the above far-reaching postulations, I have no hesitation whatsoever in coming to the most inevitable conclusion, that the instant appeal is meritorious, and same is hereby allowed by me. Consequently, the conviction and sentence passed upon the Appellant by the High Court of Lagos State on December 5, 2003 in suit No. ID/28C/96, are hereby quashed. The Appellant shall be, and is hereby, discharged and acquitted.
SIDI DAUDA BAGE, J.C.A.: I read in draft the lead judgment of my learned brother Saulawa JCA. I agree with all the reasoning and the conclusion reached by the lead judgment. I also allow the appeal, consequently, I quash the conviction and sentence passed upon the Appellant by the High Court of Lagos State on December 5th 2003 in Suit No. ID/28C/96, and also discharge and acquitted him.
ADAMU JAURO, J.C.A.: I have read the draft of the lead Judgment just delivered by my learned brother, Saulawa, JCA. I agree with the reasoning and conclusion reached in the said Judgment, to the effect that the conviction and sentence on the appellant cannot stand.
I allow the appeal and set aside the conviction and sentence. The appellant is accordingly discharged and acquitted.
Appearances
A. A. Adegbonmire
F. C. AnajeFor Appellant
AND
Mrs. A. Adeyinka Asst. DDPFor Respondent
