IMOISILI EHIARBI v. THE STATE (2019)

IMOISILI EHIARBI v. THE STATE

(2019)LCN/13936(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2019

CA/B/419CC/2018

RATIO

CRIMINAL LAW AND PROCEDURE: PROOF OF MURDER: STANDARD OF PROOF

There is no doubt that for a charge of murder to be established, the prosecution must prove beyond reasonable doubt that the deceased died, his death resulted from the act of the accused whose act was intentional, with the knowledge that it might result in the death or infliction of serious bodily harm on the deceased. See Ibikunle v. State (2007) 1 SCNJ 207. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CRIMINAL LAW AND PROCEDURE: THE DEFENCE OF ALIBI: DEFINITION AND INGREDIENTS

The defence of Alibi in simple terms entails an accused person stating that as at the time an alleged crime was committed, he was physically present in another location which would have made it physically impossible for him to have committed the offence at the scene of crime. The defence is not just pleaded without details, particulars of the location where the Accused person claims to have been at the time of the alleged commission of the crime, the exact time and possible witnesses who can confirm the story must be adequately provided at the earliest possible time. See Eke v. State (2011) 3 NWLR Pt. 1235 Pg. 589. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CRIMINAL LAW AND PROCEDURE: ALIBI: EFFECT OF NOT INVESTIGATING AN ALIBI BY THE APPROPRIATE AUTHORITY
Upon the plea of Alibi by an accused person, the police have the duty to investigate the claim. Failure to investigate a plea of Alibi with the required particulars may prove fatal to the case of the prosecution. See Odu v State (2001) 10 NWLR Pt. 772 Pg. 668.
However, the plea of Alibi cannot avail an Appellant who is placed at the scene of crime by cogent evidence, direct or circumstantial, as this destroys the defence of alibi. See Ochemaje v State (2008) 15 NWLR Pt. 1109 Pg. 57, The State v. Azeez (2008) 14 NWLR Pt. 1108 Pg. 439, Sowemimo v State (2004) 11 NWLR Pt. 885 Pg. 515. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE: REQUIREMENTS TO PROVE

Generally, a circumstantial evidence must be cogent, complete and unequivocal for it to support a conviction in a criminal trial, especially murder. It must be compelling and must lead to the irresistible conclusion that the accused person and no one else is the murderer. The facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. See Orji v. State (2008) 10 NWLR Pt. 1094 31, Oladejo v. State (1987) 3 NWLR Pt. 61 Pg. 419. Several pieces of evidence when considered together can form irresistible circumstantial evidence enough to ground a conviction. Circumstantial evidence are pieces of evidence that constitutes a greater whole. See Oketaolegun v. State (2015) LPELR-24836 (SC); Omoregie v. State (2017) LPELR-42466. To this extent, the circumstantial evidence is convincing to show that the Appellant was at the scene of the crime and was among those who assaulted the deceased. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CRIMINAL LAW AND PROCEDURE: THE DOCTRINE OF LAST SEEN

To have a proper understanding of the doctrine of last seen, it is pertinent to consider a few decisions of the Supreme Court on the doctrine.
In Archibong v The State (2006) 14 NWLR Pt.1000 Pg. 349 the Appellant was convicted for murder. The case of the prosecution was that the deceased and the Appellant went to a hotel for drinks after which they checked into a room. The waiter came over to the room and requested for money but the Appellant asked him to come back. About two hours later, the waiter knocked on the door of the room but there was no response. He opened the door and found that the Appellant was no longer in the room but the deceased lay naked and motionless on the floor with foam around her mouth and nose. The Supreme Court applied the doctrine of last seen and convicted the Appellant. Ogbuagu JSC said as follows:
In view of the said doctrine, it is settled that it is the duty of the accused person to give an explanation as to how the deceased met his or her death. In the absence of any explanation by the Appellant as to how the deceased met her death, surely and certainly, the trial Court was perfectly justified in drawing the inference that the Appellant killed the deceased.
PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CRIMINAL LAW AND PROCEDURE: WHEN THE DOCTRINE OF LAST SEEN SHOULD APPLY

The doctrine of last seen is one of the occasions in our criminal jurisprudence when the Accused Person is not expected to remain quiet. He is expected to explain the circumstances of the death of the person he was last seen with. I am fortified in the above view by the case of Okoko & Anor v. State (1964) 1 All NLR 423. Instead of giving an explanation to the Court, all that the Accused Persons did was a complete denial circumstances. I agree with the Learned Prosecuting Counsel that the doctrine of ?last seen? applies to the facts of this case. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJU                Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE                          Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN           Justice of The Court of Appeal of Nigeria

Between

IMOISILI EHIARBI                                             Appellant(s)

 

AND

THE STATE                                                        Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice J.U. Oyomire on 12/4/2018 wherein the learned trial judge convicted and sentenced the Appellant to death by hanging.

The facts that lead to this appeal are as follows:
On 27/10/14, a commercial bus pulled up by the deceased person (Isaac Aigboduwa) and he was accused of ?being among.? An Audi car comprising of some uniformed Police Officers and one person in the uniform of the Nigerian Civil Defence Corps later arrived at the scene. There was an attempt to force the deceased into the boot of a car while he resisted. Subsequently, the deceased was beaten with hard objects and his assailants then left him while they escaped in the commercial bus and the Audi car. The deceased was found in his pool of blood by one Stephen, the younger brother of the deceased, PW1 and PW2 and he was later taken to hospital where he was pronounced dead.

?The Appellant, a Police Officer and three other persons were later arrested, charged with conspiracy with other

persons to murder the deceased person. On 14/10/15, the Appellant and three other persons were arraigned on a two-count charge to wit:
COUNT 1
STATEMENT OF OFFENCE
Conspiracy to murder; punishable under Section 324 of the Criminal Code Cap 48, Vol. II, laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan Street, Off Sapele Road, Benin City in the Benin Judicial Division, did conspire amongst yourselves to commit a felony to wit: murder.
COUNT 2
STATEMENT OF OFFENCE
Murder, punishable under Section 319(1) of the Criminal Code Cap 48, Vol. II, laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan Street, Off Sapele Road, Benin City in the Benin Judicial Division, did murder one ISAAC AIGBODUWA. (M)

In proof of its case, the Prosecution now Respondent called five witnesses as follows:
1. Tespna Aigboduwa – The younger brother of the deceased (PW1)
2. James Osadolor Iserhierhsen ? A person who had an encounter with the deceased before his death (PW2)
3. Erhabor Nosakhare ? A person present at the scene of event (PW3)
4. Oke Oluwafemi ? The Investigating Police Officer at Adesuwa Police Station (PW4)
5. Omole Adedoyin ? The Investigating Police Officer at SCID (PW5)
6. Dr. Uchendu Jude Obiora ? A Pathologist who gave expert opinion on the autopsy performed on the deceased (PW6)

The Appellant testified in his own defence to the charge preferred against him.
At the end of the trial, the Appellant was convicted and sentenced on counts 1 and 2.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 5/6/18 and an amended notice filed on 6/6/19 deemed filed on 17/6/19. Record was transmitted on 3/6/19. The Appellant?s brief was filed on 6/6/19 deemed filed on 17/6/19. The Respondent?s brief was filed on 17/6/19 deemed filed on the same day.

In the Appellant?s brief settled by Olayiwola Afolabi Esq., Simon Ezeh Ezenwa Esq., P.E Chukwu (Mrs.), A.I Tsado (Mrs), Prince Ehimare Madojemu Esq., A.D. Yusuf (Mrs.), Samuel Osasuyi Atoe Esq., Uloho Esther (Mrs), Enyawuile. C. Abednego Esq., M.O. Ogbiede (Mrs.), Anthony Osula Esq., S.U. Enyawuile Esq. and I.I. Irele-Ifijeh Esq., two issues were identified for determination of the appeal to wit:
1. Whether the trial Court was right to have convicted the Appellant for the offences alleged when the prosecution failed to appropriately identify and link Appellant to the offences alleged and having regard to the trial Court finding of fact in respect of the identification parade
2. Having regards to the failure of the police to properly conduct an identification parade and the finding of fact of the trial Court in respect of same, whether the trial Court was right to have relied on the doctrine of last seen doctrine to convict the Appellant for the alleged offence without even proper evaluation of the defence of alibi of the Appellant.

In the Respondents brief settled by Mrs. V.U. Adeleye, a sole issue was formulated for the determination of the appeal to wit:
Whether having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution can be said to have proved the charges against the Appellant beyond reasonable doubt to warrant his conviction and sentence.

In determination of this appeal, I will recouch all the issues formulated into a sole issue. I am of the view that the complaints of the Appellant can be adequately addressed by the determination of same:
Whether from the evidence adduced by the prosecution, the learned trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.

SOLE ISSUE
Whether from the evidence adduced by the prosecution, the learned trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.
Counsel argued that in a murder case, it is settled law that for a conviction to be secured, three essential elements has to be proved to wit: that the deceased died, his death was caused by the act of the accused and the accused person intended to either kill the victim or cause him grievous bodily harm. Counsel cited Owolabi Kolade v. The State (2014) LPELR-42362 (SC) P. 13, Paras. B-D. Counsel further opined that the prosecution has the responsibility to establish the facts. Failure of which will lead to the discharge and acquittal of the accused person. Counsel cited Kazeem Oseni v. The State (2018) LPELR-42546 (CA) Pg. 50-51, Paras E-A; Rasheed Haruna v. The State CA/B/390C/2017. Counsel further opined that the prosecution never proved the case of murder against the Appellant which had occasioned a miscarriage of justice on the Appellant.

Counsel submitted that PW1 admitted that he did not know the Appellant and also never mentioned that he saw the Appellant having anything to do with the deceased.

Counsel further submitted that PW2 did not identify the Appellant as one of the persons who killed the deceased. Counsel further argued that the evidence of PW3 was that four boys were shown to him of which the Appellant was among the three