ISAAC OGUNNIYI v. THE STATE
(2012)LCN/5427(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of May, 2012
CA/I/130/2009
RATIO
“The burden which rests on the prosecution is to prove the commission of the offence beyond reasonable doubt. This burden does not shift, and if on the totality of the evidence a reasonable doubt about the guilt of the accused is created, the prosecution would have failed to discharge the onus of proof which the law rests upon it and the accused is entitled to an acquittal. See ALONGE VS. IGP. (1959) SCNLR Page 516, STATE VS. DANJUMA (1997) 5 NWLR PART 506 PAGE 506 PAGE 512 AT 529, ACHIBONG VS. THE STATE (2004) 1 NWLR PART 855 PAGE 488 AT 509 AND AMAREMER VS. STATE (2010) 7 NWLR PART 1193 PAGE 317 AT 329 PARAS G – H.” Per FASANMI, J.C.A.
“Now to the offence of conspiracy to commit murder, conspiracy has been held to be a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means. Conviction for conspiracy is usually based on circumstantial evidence. See ABDULLAHI VS. STATE (2008) 17 NWLR. Part 1115 at 203, AWOSIKA VS. STATE (2010) 9 NWLR, Part 1198 Page 49, IKUOPANIKAN VS. STATE (2011) 7 NWLR Page 449 at 474-475 Paras H-C and ADELEKE VS. STATE (2012) 3 W.R.N. Page 136 at 151 lines 44-48.” Per FASANMI, J.C.A.
“A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between both pieces of evidence. See OGOALA VS. STATE (1991) 2 NWLR PART 175 AT 509 AND GABRIEL V. STATE (1989) 5 NWLR PART 122 AT 457.” Per FASANMI, J.C.A.
“Evaluation of evidence is the primary function of the trial court so also is the ascription of probative value to such evidence. It is the trial court that saw, heard and assessed the witnesses as they testified at the trial in the witness box. The credibility of D.W.1 was impugned by the learned trial Judge who watched him and his demeanor while giving evidence.” Per FASANMI, J.C.A.
“When the trial Judge has unquestionably evaluated evidence and appraised the facts, it is not the business of an Appellate Court to interfere and to substitute its own views for the views of the trial court on the assessment of credibility of a witness. See OCHIBA VS. STATE (2012) 9 WRN page 33 at 63 lines 25 – 35 and BUBA v. BUKAR (2003) FWLR Part 183 at 38.” Per FASANMI, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ISAAC OGUNNIYI Appellant(s)
AND
THE STATE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned with two other accused persons at the High Court of Justice, Oyo State sitting at Ogbomosho for the following offences: (a) conspiracy to commit murder (b) murder (c) causing grievous bodily harm and (d) unlawful possession of criminal charms.
At the trial, the case for the prosecution is that on the 14th of February 2001 at about 12 noon, Basiru Raji (PW2) and his family arrived Oko-Ile their home town, having been earlier driven out of the town as a result of the Chieftaincy dispute between them and one Oba Gabriel Adepoju Adeyemo (a co-accused). P.W.2 and his family were in front of one pa Omoboyede’s house when Joseph Areo and Emmanuel Oke, two of the supporters of Oba Gabriel Adepoju Adeyemo, accosted them and demanded for why they were in Oko-Ile, having been told not to come back to the town. Oba Gabriel Adepoju Adeyemo’s supporters thereafter went and rang the church bell to gather other supporters. Oba Gabriel Adepoju Adeyemo thereafter led his supporters including the Appellant to attack P.W.2, his family and his supporters. In the course of this attack, the Appellant and two other co-accused killed Azeez Raji while some other persons were injured.
At the trial, the Respondent called six witnesses and tendered several exhibits whilst the Appellant and two other co-accused called eleven (11) witnesses including themselves. The learned trial Judge in his judgment delivered on the 29th of October 2008 found the Appellant and the co-accused guilty of the offences of Conspiracy to commit murder and murder of Azeez Raji. He sentenced them to death by hanging. Dissatisfied with the judgment, Appellant appealed to this court against his conviction. The notice of appeal is dated 13th January 2009.
In accordance with the Rules of this Court, parties exchanged briefs of argument. Appellant’s brief of argument is dated 26th of April 2010 but filed on the 9th of July 2010. It was deemed properly filed and served on the 16th of December 2010. Respondent’s brief of argument is dated 8th of April 2011 but filed on the 12th of April 2011. It was deemed properly filed and served on the 21st of June 2011. Appellant distilled two issues for determination as follows:-
(1) Whether the prosecution proved its case beyond reasonable doubt;
(2) Whether the learned trial Judge properly evaluated the evidence before coming to its conclusion convicting the accused persons for conspiracy and murder.
The Respondent distilled a sole issue for determination thus:
Whether the court below was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt.
I consider the sole issue distilled by the Respondent as appropriate to effectually dispose of this appeal.
Learned Counsel for the Appellant submitted that an analysis of the evidence will show that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt. He submitted that in exhibit 1 made on 16/2/2001, 2nd P.W, stated the people he claimed attacked his brother, the deceased thus:
“The people I saw that day are (1) Isaac Ogunniyi Aboderan (Baba Racheal alias) (2) Emmanuel Olayiwola Oke (3) Joseph Areo (4) Ayangade James (5) Bisi Ajani (m).”
This witness when giving evidence in chief did not state whether Isaac Ogunniyi Aboderan (Baba Rachel) mentioned in Exhibit 1 is the same person he referred to as the 3rd Accused person whose name simply is Isaac Ogunniyi. Submitted that Appellant could not be guilty of the offence of murder if the Appellant matchetted the deceased when the 1st Accused had axed Raji Azeez.
Learned counsel for the Appellant argued further that the learned trial Judge was wrong to have considered the evidence of 1st P.W. – 4th P.W. as evidence of eye witnesses without considering the evidence of 1st D.W. – 8th D.W. who were also eye witnesses before concluding that the Appellant attacked the deceased. He contended further that 1st P.W. – 4th P.W. are members of the deceased’s family and therefore are tainted witnesses. He argued further that the contradiction in the evidence of the prosecution witnesses of how the fight started between the parties ought to have been resolved in favour of the Appellant.
He contended that the defence witnesses are independent witnesses as opposed to 1st P.W. – 4th P.W. who were members of the family of the deceased. He submitted that 1st- 4th P.Ws fabricated their evidence solely to serve their own interest. Learned Counsel referred to the case of NWANKWOALA VS. STATE (2005) ALL FWLR Part 266 Page 1280 at 1304 which says:
“In fact where the prosecution’s case is shaky, the accused Person has to be given the benefit of doubt and ultimately acquitted.”
Reliance was also placed on the case of UWAEKWEGHINYA VS. STATE (2005) ALL FWLR Part 259 Page 1911 at 1931 Paras B – C. Learned Counsel for the Appellant urged the court to discountenance the trial Judge’s believe and hold that he fell into error by not evaluating the evidence of the prosecution witnesses alongside the evidence of the defence witnesses. The Respondent has not proved conspiracy to commit murder. He urged the court to resolve the sole issue in favour of the Appellant, set aside the conviction and sentence. He urged the court to discharge and acquit the Appellant and allow the appeal.
Learned Counsel for the Respondent submitted that conspiracy is a matter of inference deduced from certain criminal acts and conducts of the parties in common between them. He relied on the case of IKEMSON VS. THE STATE (1989) 3 NWLR Part 455.
In proving the culpability of the Appellant, the Respondent called four eye witnesses who gave a vivid account of the incident that led to the murder of the deceased and positively identified the Appellant and two other co-accused at the scene of crime as the people that killed the deceased. Submitted further that based on the evidence on the printed record, the trial court was justified in coming to the conclusion that the prosecution proved its case against the Appellant beyond reasonable doubt. It was further submitted that identification parade is only essential where the identity of an accused is in doubt. Reliance was placed on the case of ADELE VS THE STATE (1993) 2 NWLR Part 377 which states thus:
“Denial of commission of crime cannot hold waters in view of positive identification of the accused at the scene of crime.”
Learned Counsel for the Respondent submitted that the trial court did not rely on the evidence of the defence witnesses because they did not witness the murder of the deceased. They only gave evidence of the aftermath of the murder. Submitted further that the prosecution witnesses should not be disbelieved merely because of their relationship with deceased. Reliance was placed on the cases of CHUKWU VS. THE STATE (1992) NWLR Part 217 page 255 at 263, THE STATE VS. MEBUDEN (1981) 1 NWLR Part 73 at 283 and ADEDUNMOLA VS. THE STATE (1988) 1 NWLR Part 73 at 683.
He went further to state that the learned trial Judge did not only comprehensively and properly evaluate the evidence adduced by both the prosecution and the defence before it came to his findings. He considered the defence available to the Appellant. The contradictions in the evidence of the prosecution that will be fatal to the prosecution’s case must be substantial and fundamental to the main issue in question. Cited the cases of SELE VS. THE STATE (1993) 1 S.C.N.J. Page 15 at 22-23 and OLUDOTUN OGUNBAYO VS. THE STATE (2001) ALL FWLR PART 365 PAGE 343 at 433.
Learned Counsel for the Respondent urged the court to hold that the trial court was right in holding that the prosecution proved its case beyond reasonable doubt. He urged the court to affirm the decision of the lower court and dismiss the appeal.
I shall deal with the offence of murder first before proceeding to the offence of Conspiracy to commit murder.
It is trite law that in a charge of murder the burden is on the prosecution to prove that:
(a) The deceased died;
(b) The death of the deceased was caused by the act of the accused;
(c) The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
All these ingredients must be proved or co-exist before a conviction could be secured. See the cases of HARUNA VS. THE STATE (1972) 8 – 9 SC Page 174, GOBA VS. THE STATE (1992) 2 NWLR PART 222 PAGE 164, NWAEZE VS. THE STATE (1996) 2 NWLR PART 428 PAGE 1 AT 11, ADAVA VS. THE STATE (2006) 9 NWLR PART 981 AT 152, AKPA VS. STATE (2007) 41 WRN PAGE 105 AND UWAGBOE VS. STATE (2006) 51 WRN PAGE 119.
The burden which rests on the prosecution is to prove the commission of the offence beyond reasonable doubt. This burden does not shift, and if on the totality of the evidence a reasonable doubt about the guilt of the accused is created, the prosecution would have failed to discharge the onus of proof which the law rests upon it and the accused is entitled to an acquittal. See ALONGE VS. IGP. (1959) SCNLR Page 516, STATE VS. DANJUMA (1997) 5 NWLR PART 506 PAGE 506 PAGE 512 AT 529, ACHIBONG VS. THE STATE (2004) 1 NWLR PART 855 PAGE 488 AT 509 AND AMAREMER VS. STATE (2010) 7 NWLR PART 1193 PAGE 317 AT 329 PARAS G – H.
In the instant case, can it be said that the prosecution has proved the case of murder against the Appellant beyond reasonable doubt? The purport of proof in all criminal trials is that if the essential ingredients of the offence have been proved by the prosecution, the charge is proved beyond reasonable doubt. The standard need not be as high as proof beyond a shadow of doubt. See the cases of UGO VS. COMMISSIONER OF POLICE (1972) 11 SC. AT 37, AMEH VS. STATE (1973) 6 – 7 SC AT 27 AND MOSES JUA VS. STATE (2010) 43 WRN PAGE 1 AT 24 – 25 where the learned jurist Niki Tobi J.S.C. put this position thus:
“While our adjectival law places on the prosecution the duty to prove a criminal case beyond all reasonable doubt, the prosecution has not the duty to prove the case beyond all shadow of doubt…
The court can convict an accused person the moment the Prosecution proves its case beyond reasonable doubt and proofs beyond all shadow of doubt do not mean the same thing. The latter places a heavier burden on the prosecution a burden which is not known to our adjectival law.”
The crucial issue in this appeal is the killing of the deceased (Azeez Raji) and the circumstances in which he met his death. From the evidence on the printed record, P.W.1 – P.W.4 gave a vivid account of how the deceased met his death in the hands of the Appellant and the co-accused while the defence witnesses gave evidence of how they were matchetted in the course of the confusion in the town.
The evidence of the prosecution witnesses showed that the act of the Appellant caused the death of the deceased, Appellant was positively identified at the scene of crime even at the earliest opportunity by the prosecution witnesses in their extra-judicial statements. Exhibits 1 and 2 confirmed the identification of the Appellant and two other co-accused at the scene of crime.
At page 61 of the record, P.W.1 in his evidence in chief stated thus:
“We then saw Gabriel Adepoju Adeyemo and his people coming to challenge us about our presence in the town claiming that we ought not to be in the village as they have already sent us away from the village.
I don’t know Gabriel Adepoju Adeyemo in our village but he was the one who came and axed Raji Azeez to death….
Gabriel Adepoju Adeyemo is the 1st accused person in this case, I noticed that they were warlike because they were very many coming towards us.
After the 1st accused had axed Raji Azeez to death, Isaac Ogunniyi the 3rd accused also matchetted him.”
Under cross-examination, P.W.1 at page 62 said:
“They came on that day armed with axes and other weapons in warlike manner.”
P.W.2 at page 67 had this to say in his evidence:
“As they were approaching us, they were throwing stones at us, when they reached us, the 1st accused person shouted at us that we have been warned not to come to the town again. He then ordered his men to attack us. He the 1st accused then axed one Raji Azeez on the head. Raji Azeez was my elder brother. As Raji Azeez was going on falling down after he was axed by the 1st accused, the 3rd and 2nd accused persons matchetted him with their cutlasses”‘
The evidence of P.W.3 and P.W.4 are similar to that of the P.W.1 and P.W.2.
Learned Counsel for the Appellant submitted that the trial Judge did not evaluate the evidence of the defence witnesses. I am unable to agree with this submission having regard to pages 163-168 of the record. The learned trial Judge in pages 163- 164 of the record stated thus:
“The picture being painted by the defence here is that P.W.2 led his supporters back to the town on that day and immediately launched an attack on the people which eventually led to the death of one of his supporters i.e. Azeez Raji who was hit by a stone aimed at one Pastor Abolade. The D.W.1, Pastor Samson F. Olajire said that much in his evidence in chief….
The said Pastor Olusegun Abolade who gave evidence as D.W.4 did not however say that the stone aimed at him hit anybody talkless of Azeez Raji (deceased). Infact no other witness for the defence said anything about the way and manner the said Azeez Raji met his untimely death. They were only busy relating the story of the various degrees of injuries they allegedly suffered on that day and making efforts to exonerate the accused person.”
D.W.2 was not at the scene of crime but he was called by 1st accused to take photograph while D.W.3 – D.W.8 gave evidence of the crisis they met on ground when they came to town. Evaluation of evidence is the primary function of the trial court so also is the ascription of probative value to such evidence. It is the trial court that saw, heard and assessed the witnesses as they testified at the trial in the witness box. The credibility of D.W.1 was impugned by the learned trial Judge who watched him and his demeanor while giving evidence.
When the trial Judge has unquestionably evaluated evidence and appraised the facts, it is not the business of an Appellate Court to interfere and to substitute its own views for the views of the trial court on the assessment of credibility of a witness. See OCHIBA VS. STATE (2012) 9 WRN page 33 at 63 lines 25 – 35 and BUBA v. BUKAR (2003) FWLR Part 183 at 38.
Agreed that P.W.1 – P.W.4 are members of the deceased family as submitted by Learned Counsel for the Appellant.
I must say this that a witness would not cease to be competent to testify for the prosecution merely because he is related to the accused, Credibility of a witness is what is relevant. See OKONKWO VS. THE STATE (1998) 4 NWLR PART 544 PAGE 142 AT 148 – 149. P.W.1 – P.W.4 should not be disbelieved merely because of their blood relations with the deceased. In DAVID OMOTOLA & ORS VS. THE STATE (2009) 3 SCM page 127 AT 147 – 148 OGUNTADE J.S.C. stated thus:
“Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a court case… But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased or tainted.”
See UCHEMAJE VS. THE STATE (2008) ALL FWLR Part 435 page 1661 at 1686 – 1687 and AGWU vs. THE STATE (1998) 4 NWLR Part 544 page 90 at 95.
Learned Counsel for the Appellant made a heavy weather in his brief about contradictions in the prosecution’s case. The contradictions related to verbal warnings to the prosecution witnesses before the incident, the outfit of Oba Gabriel Adepoju Adeyemo, the exhibits recovered at the scene of crime. These in my view are minor discrepancies which go to no issue. See DAGAYYA VS. STATE (2006) 7 NWLR PART 980 AT 637, AKPAN VS. STATE (1991) 3 NWLR PART 182 AT 646 AND UZOKA VS. FRN (2010) 2 NWLR PART 1177 AT 118.
A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between both pieces of evidence. See OGOALA VS. STATE (1991) 2 NWLR PART 175 AT 509 AND GABRIEL V. STATE (1989) 5 NWLR PART 122 AT 457.
P.W.5 Dr. Oyewole Lawal stated in Exhibit 16 (i. e. the medical report) that:
“There was a deep laceration of 7cm in height penetrating to the skull at the region. The left eye was eviscerated.”
He also certify the cause of death to be
“Head injury and Hemorrhage.”
P.W.5 testified that Adeez Raji died as a result of loss of blood he suffered due to the injury inflicted on him.
The learned trial Judge in his findings at page 166 of the record stated thus:
“Also tendered in this case are exhibits 3A, 38, 3C and 3D which are Photographs showing the various degrees of injuries inflicted on the head of Azeez Raji which to all intent and purpose are in conformity with the description given by P.W.5 in exhibit 16 and the evidence of P.W.1, P.W.2, P.W.3 and P.W.4.”
I therefore believe the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 that the said Azeez Raji was axed/matchetted to death and not that he died as a result of single stone thrown at someone else hitting him.
As to whether the Appellant intended the consequences of his act is therefore saying the obvious. I have no doubt in my mind that the Appellant and the other two co-accused intended the consequences of their actions as the grievous attack they inflicted on the deceased with axe and matchet struck on the head and face of the deceased with such ferociousness that could result in the removal of an eye of the deceased and caused such damages to the head as described in the medical report which was tendered as exhibit 16. Appellant intended to cause the death of the deceased and did cause the death of the deceased.
In the circumstances of this case where the Appellant attacked the deceased without any justifiable cause and without being provoked, the defence will not avail the Appellant.
Now to the offence of conspiracy to commit murder, conspiracy has been held to be a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means. Conviction for conspiracy is usually based on circumstantial evidence. See ABDULLAHI VS. STATE (2008) 17 NWLR. Part 1115 at 203, AWOSIKA VS. STATE (2010) 9 NWLR, Part 1198 Page 49, IKUOPANIKAN VS. STATE (2011) 7 NWLR Page 449 at 474-475 Paras H-C and ADELEKE VS. STATE (2012) 3 W.R.N. Page 136 at 151 lines 44-48.
In the instant case, the evidence of the prosecution witnesses is to the effect that the Appellant was part of the group who first met underneath the tree very close to the roundabout in Oko-Ile town after the ringing of the church bell before they proceeded in warlike manner towards where the P.W.1, P.W.2, P.W.3 and P.W.4 were together with the deceased. It was the attack or confrontation that occurred thereafter that led to the death of Azeez Raji who was axed and matchetted to death.
The learned trial Judge rightly found as follows:
“I therefore accept and believe the evidence of the prosecution witnesses to the effect that the accused persons along with some others gathered themselves together under a tree near the roundabout, armed themselves with axes, cutlasses, sticks and other dangerous weapons before proceeding to attack the P.W.2 and his group which included the deceased (i.e. Azeez Raji) who died as a result of the attack. I do not believe and so reject the evidence of the accused persons and their witnesses to the effect that the accused persons did not conspire together to effect the unlawful purpose of attacking the P.W.2 and his group with dangerous weapons which eventually led to the death of Adeez Raji. I hold that it is evident from the action of the accused persons that there is a meeting of the minds to commit an offence. It must be noted that the meeting of the mind need not be physical.”
I am satisfied that the Respondent has proved the case of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt. The findings of the learned trial Judge are certainly not perverse. Consequently, I have no reason to disturb the findings of the learned trial Judge.
Finally, the appeal lacks merit and it is hereby dismissed. The judgment of the lower court in Charge no.HOG/10C/2002 delivered by MASHUD A. A. ABASS J. on the 29th of October 2008 is hereby affirmed by me.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my learned brother Fasanmi (J.C.A,). I agree with the reasoning and conclusion reached therein. The appeal is unmeritorious and I also dismiss same. I affirm the judgment of the lower court and abide by the consequential order/s made in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A.: I had a preview of the judgment just delivered by my learned brother, FASANMI JCA and I entirely agree with his reasoning and conclusions. For the reasons stated in the lead judgment I too will dismiss the appeal and it is hereby dismissed. The conviction and sentence passed by the lower court is affirmed.
Appearances
F. B. Aladeniyi (Mrs) with B. Akinola appearsFor Appellant
AND
H. M. Awosemusi (Mrs) Senior Legal Officer, Ministry of Justice Oyo StateFor Respondent
