JOHNNY v. STATE (2020)

JOHNNY v. STATE

(2020)LCN/14436(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/382C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

KINGSLEY YOUNG JOHNNY APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE STATEMENT OF A DECEASED IS ADMISSIBLE AS A DYING DECLARATION

The statement of the deceased is not admissible as a dying declaration in the absence of proof that he believed himself to be in such danger. Such proof is sometimes attained by means of the very words uttered by the deceased. Indeed, for a dying declaration to be admissible, strict proof of the actual words used or uttered by the deceased is generally required. This is necessary to avoid uncertainties as the words used mirror the state of mind of the declarant. See Akpan Ikono vs. the State [1973] 5 S. C. 231, R. vs. Ogbuewu [1949] 12 W. A. C. A. 483, R. vs. Bank Weyeku [1943] 9 W. A. C. A 195, Grace Akine vs. The State [1988] 7 S. C. N. J. (pt. 11) 226, [1998] 3 N.W.L.R. (pt. 88) 35. Kuse vs. The State [1969] N. M. L. R. 153. PER OWOADE, J.C.A.

WHETHER OR NOT THE TRIAL COURT MUST ARRIVE AT ITS DECISION THROUGH A PROCESS OF REASONING IN CRIMINAL TRIALS

The apex Court stated as follows in Ndidi vs. The State (2007) ALL FWLR (pt. 381) 1617 at 1650 – 1651, (2007) 13 NWLR (pt. 1052) 633:
“In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.”
See also Ebri vs. The State (2004) 11 NWLR (pt. 885) 589 at 105. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court; Eket delivered on 23rd July, 2018 and presided over by Hon. Justice Nsemeke Daniel.

The Appellant and one other were charged and each of them pleaded not guilty to the two counts of conspiracy and murder contrary to Section 552 and Section 323 respectively of the Criminal Code, Cap. 38 vol. 2. Laws of Akwa Ibom State 2000.

On the 9th of February, 2014 between 2.00 am to 3.00 am in the night, the 1st Accused allegedly broke into the room of the victim one Adiaha Mbre Johnny, a 56 year old widow at Afia Nsit village – Eket Local Government Area of Akwa Ibom State and attacked her with a matchete having deep matchete cuts on her mouth which removed her lower canine and scissor teeth, leg, hand and chest. She passed out into an unconscious state and her assailant left her in the pool of her blood thinking she was dead. PW1, the village head of Afia Nsit village in Eket Local Government Area and a relative of the Appellant and the 1st Accused was one of the earliest persons that saw the victim

after regaining consciousness from the attack.

He PW1 witnessed in examination – in chief inter alia that the victim told him;
“that the 1st Accused person by name Michael Anietie entered her room in the dark with a touch light and when she asked him why, he asked her whether she doesn’t know that he is a killer and had entered the room to kill her. That when he said so, she told him he was going to kill his mother and at that point he used a matchete to cut her mouth.”

PW3, Sabbath Emmanuel Mbre – a missionary claims the 1st Accused and the Appellant are cousins to her husband. She witnessed in examination – in – chief that:
“The deceased repeatedly told me that it was Ime Johnny Mbre that sent Young Johnny and Michael Anietie Johnny to kill her. She mentioned this fact to other family members that came to visit her in the hospital …. that even if she dies everybody know this fact ….“

PW6 was the IPO, at examination – in – chief; he said inter alia, that in February, 2014, he visited the deceased in the hospital in company of the 1st Accused and the Appellant.

That immediately, the deceased Adiaha Mbre sighted the 1st Accused and the Appellant she began to scream in Ibibio language and pointed her finger and called them by names;
“Anietie and Kingsley! You came to my house to attack me, look at the injuries you inflicted on me. You thought I will be dead by now but my god has kept me alive till now to tell people what you did to me.”
That she also said
“If I die today, it is the two of you who are responsible for my death.”

That the deceased made these statements in Ibibio language and English language simultaneously. That after this episode, the deceased volunteered a statement which was admitted as Exhibit 8 to Inspector Emmanuel Eboh. The said Exhibit 8 taken on 18th February, 2014 contained on page 9 of the Records read in part thus:
“…. On the 9th of February, 2014 at about 0330 hours I woke up from the sleep when I overheard some discussion from people outside my bedroom, they discussants were perceived by me to be thieves. When I was telling them from my bedroom that, I don’t have money if it is what they are looking for. I actually heard voices to

be that of Michael Anietie Johnny Mbre my brother – in-law and Kingsley Young Mbre Johnny also a brother in-law.
While they were muttering words outside my bedroom, I heard a bang three times on my door which forced opened the door to my bedroom with only Michael enter my bedroom and with an (axe/a matchete) in his hands and cut my left leg and hand. Thereafter I had falling in posture (sic) to have died in the course, he used the axe to hit my jaw and chest stating that he is hitting my mouth because I talk too much and very insulting. He left me on the ground believing that I am dead and joined his gang outside waiting for him …“

In the later part of Exhibit 8, the deceased stated her belief that she was attacked because of a land dispute involving Ime Johnny. The 1st Accused confessed to killing the deceased and stated that the Appellant was not a party to the crime.

The Appellant’s case was that he was not present at the scene of the offence, but was at home with named members of his family and did not commit any offence.

The deceased died of injuries sustained from the said attack of 9th February, 2014 about six

months thereafter on 3rd August, 2014.

In relation to the Appellant, the learned trial judge treated and accepted the deceased statement to PW3, PW5 and PW6 concerning the cause and circumstance of the events which resulted in her death as relevant and regarded Exhibit 8 as dying declaration. Still on the Appellant, the learned trial judge stated that he looked at Exhibit 10 which is the Appellant’s statement to the police. That he could not see anything suggesting that the Appellant was not at the scene of crime contrary to his (Appellant) counsel contention that he raised the defence of alibi but it was not investigated. That the Appellant brought the issue of alibi in his testimony in Court. That his counsel did not tender the statement made to the police at Eket Divisional Police Head Quarters where he said he slept in company of his wife and brothers on 8th February, 2014.

The learned trial judge continued at pages 200 – 201 of the Records thus:
“Even if that statement were to be considered, it is clear that such a statement is not or does not qualify as alibi. The 2nd Accused said he slept in his house with his brothers but the

scene of crime was Afia Nsit village in Eket. The deceased live there, the 2nd Accused also lived there. When a crime is committed in a village and the suspect is saying he slept in his house, such a suspect should know that his statement is doubtful. It is different if the suspect says I was in another town or state with a particular person or in a particular place.
It is most probable that the 2nd Accused could have joined in the commission of the offence after which he returned to his house to sleep with his wife. The Supreme Court settled this issue in the case of Ilodigwe vs. State, Supra at page 319 when it said per Chukwuma-Eneh (Sic) “However for a plea of alibi to be successful the defence must show inter alia, that the Accused is so separated by distance that ordinarily he could not have travelled from that place where it is alleged he was to the scene of crime or that even if he has been staying within a short distance he has been seen by people there at the time the alleged crime is said to have been committed or that he has been physically prevented from approaching the scene of crime by an external force or may be by ill health and so

certified by a Medical Doctor”.
It is therefore my view that the alibi raised by the 2nd Accused is fake, false and contrived only for the purpose of escaping justice in this case. See Osuagwu vs. State (2013) 5 NWLR (PT. 1347) 96. In the instant case, the deceased was consistent and sure that the 1st and 2nd Accused were the only people whose voice she heard at the back of the door to her bedroom.
He stated further at pages 201 – 202 of the Records that:
In her statement, Exhibit 8, the deceased said she initially thought they were armed robbers. She identified the voice of 1st Accused and 2nd Accused. At the same time, the door to her room was pushed and forced open. 1st Accused entered the room with a touch light and told the deceased he had come to kill her. When the deceased told him that he will kill his mother, he started cutting the deceased with the machete he carried. The 2nd Accused was outside. There is no evidence to challenge Exhibit 8 that the person who was outside while the 1st Accused entered the deceased room to attack her was any other person apart from the 2nd Accused.
I am satisfied that the circumstantial

evidence in this case is compelling and convincing that the 2nd Accused was the person who stood outside the deceased house while the 1st Accused brutalized the deceased.
He was there with the 1st Accused with a common intention to kill or cause grievous bodily harm on the deceased.
It is the law that where two or more persons form a common intention to do an unlawful act, and in furtherance of that unlawful act a person is killed, each of them is guilty of the killing. See Nyam vs. The State (1964) ALL NLR 356, Miri vs. The State (1968) ALL NLR – 55, Michael vs. State (2008) 9 MJSC 61.
In the instant case, three people formed a common intention to execute an unlawful purpose whether to incapacitate the deceased or unlawfully assault her. The three people were (1) Ime Johnny Mbre (2) Michael Anietie Johnny (1st Accused) and (3) Kingsley Young Johnny (2nd Accused. On the 9th of February, 2014, the Accused persons proceeded to the house of the deceased with a machete while Ime Johnny Mbre might have stayed back.
The criminal act took place at night. The only means of identification was the voices of the Accused persons beside the

deceased bedroom. The deceased had known these two Accused persons night from the day they were born. She interacted with them regularly, after all, they were nephews to her late husband.
Under such circumstance, it is difficult to induce doubt in the mind of the Court when the deceased has already identified her attackers before she died.
He concluded at page 203 of the Records as follows:
The 2nd Accused was at the scene of the crime for the purpose of aiding and assisting the 1st Accused in the commission of the offence. He was therefore a principal offender. See Nyam vs. State (2012) LPELR – 7865 (SC) or (2012) 7 ALL 304.
As rightly pointed out by prosecution’s Counsel, if the 1st Accused wanted to exonerate the 2nd Accused, it was his duty to reveal the identity of the other person who was with him to carry out the criminal act.
This is so because by his confession, he has admitted the dying declaration of the deceased that two of them were sent to kill the deceased and two of them were actually the persons who went to kill her.
In conclusion, it is my view that the prosecution has proved the two count charge of

conspiracy and murder against the 2nd Accused person by circumstantial evidence.
Accordingly, the two Accused persons are hereby convicted as charged.
Sentence:
Count 1: The Accused persons are hereby sentenced to 5 years imprisonment.
Count 2: The sentence of this Court is that you, Michael Anietie Johnny and Kingsley Young Johnny shall be hanged by the neck until you be dead and may the Lord have mercy on your soul.

Dissatisfied with the above, the Appellant at first filed a Notice of Appeal in this Court on 24th July, 2018. Later the Appellant on 18th December, 2019 filed an Amended Notice and Grounds of Appeal containing five (5) grounds of appeal.
The relevant briefs of argument are:
1. Appellant’s Brief of Argument which was filed on 18th December, 2019 but deemed filed on 30th April, 2020. It is settled by Ekpedeme Iyoho.
2. Respondent’s Brief of Argument was filed on 22nd May, 2020 but was deemed filed on 30th April, 2020. It is settled by Ime A. Ifon.
3. Appellant’s Reply Brief was filed on 29th May, 2020. It is settled by Ekpedeme Iyoho.

Learned Counsel for the Appellant nominated two

(2) issues from the five (5) grounds of appeal filed.
1. Whether the learned trial judge was right in his evaluation of Appellant’s defence of alibi and if not whether the said defence did not avail the Appellant (Grounds 3, 4 and 5).
2. Whether considering the evidence of the prosecution and entire circumstances of the case, the learned trial judge was right to convict the Appellant of the offence of conspiracy and murder.

Learned Counsel for the Respondent similarly formulated two (2) issues for the determination of the appeal. They are:
1. Whether from the totality of evidence adduced at the trial, the prosecution had proved the two count charge of conspiracy to murder and murder against the Appellant and the other accused person beyond reasonable doubt.
2. Whether the prosecution had successfully debunked the alibi raised by the Appellant.

On issue No. 1, Learned Counsel for the Appellant submitted that the Appellant’s sole defence was alibi, that on the night of the incident he was not at the scene but at home with his wife and 2 brothers namely: Emmanuel and Michael (P. 89). But, that contrary to these available

materials and records, the Court below concluded that there was no previous statement on the alibi except in the open court thus:
“I have looked at Exhibit 10 which is the 2nd Accused statement to the police. I have not seen where any statement suggesting that the 2nd Accused was not at the scene of crime is raised. The 2nd Accused only brought the issue in Court. His counsel did not tender his statement made to the police at Eket Division Police Headquarters where he said he slept in his house with his wife and brother on 8th February, 2014.”

Appellant’s Counsel submitted that as seen from the above account, Appellant’s statement to the police is found in page 89 of the record where he stated inter alia thus:
“On 8th February, 2014, I spent the night in my house with my wife and two brothers, Emmanuel Young Mbre and Michael Young Mbre and all of us slept in the same room.”

Appellant’s Counsel reasoned that the statement was recorded by the police themselves and under the custody of the police and the prosecution. The accused lawyer does not custody the statement made to the police. Above all, said

counsel, the material was before the Court. The conclusion that Appellant’s lawyer failed to tender the statement in custody of the police was not borne out of the evidence in Court’s record.

He submitted that there was therefore a sufficient material to establish the defence of alibi raised by the Appellant at the earliest possible time. That having raised the defence, it was opened to the prosecution to make proper investigation and place same before the Court. This he said is more so when alibi is the sole defence of the Accused Appellant before the Court.

Learned Counsel for the Appellant further pointed out that at page 180 of the record, the Appellant named the 3 policemen who visited his home on 21st February, 2014 and interviewed his wife on his defence of alibi and the wife confirmed that Appellant was at home in the night of the incident. The 3 officers were Inspector Mohammed, Inspector Iquo and Inspector Inuaeshiet. None of them was called as witness to testify on their finding. Rather, said counsel, Inspector Bassey Ofem who testified as PW6 and who was not part of the team claimed at page 174 thus “We got to the house

and nobody confirmed that he slept at home that night.”

He submitted that this failed short of the direct evidence required under Section 126 of the Evidence Act that can only be given by a person who saw or heard a thing when it refers to a matter that can be seen or heard as in the instant case.

Appellant’s Counsel submitted further that PW6 also did not state his source of information on a matter he was not an eye witness. Neither was the finding or evidence of the Alibi investigating team placed before the trial Court as stipulated under Section 49 of the Evidence Act. He referred to the case of Olumuyiwa vs. State (2019) LPELR – 46387 (CA) per Mahmoud JCA.

He submitted that PW6, who gave evidence on Appellant’s alibi without placing the findings of the investigating officers before the Court nor gave reason for the absence of all of them, amounted to a travesty of justice against the Appellant. That there was also no cross examination on the vital point that PW6 was not among the officers who visited the scene. The evidence of the Appellant that his wife confirmed his alibi stood undisturbed, uncontroverted and ought

to have been acted upon.

Appellant’s counsel submitted that it would appear that the Court below opted to fill the gap left by the prosecution with probabilities and speculative evidence thus:
“It is most probable that the 2nd Accused could have joined in the commission of the offence after which he returned to his house to sleep with his wife (p.200). As rightly pointed out by the prosecution, if the 1st Accused wanted to exonerate the 2nd Accused, it was his duty to reveal the identity of the other person who was with him to carry out the criminal act (p. 203).”

Learned Counsel for the Appellant submitted that the above pieces of extraneous conclusions were adopted in place of the requisite evidence and investigation as a response to the defence of alibi. He referred to the cases of Ikono vs. State (1973) 8 NSCC p. 352 at 363, Lawali vs. State (2019) 4 NWLR (pt. 1663) 457 at 476 and submitted that the Appellant having given sufficient particulars of his alibi including names of persons who saw him, it was the place of the prosecution to debunk same with admissible evidence.

He submitted that a conclusion by the Court

below that the scene of the crime was the same village Appellant slept and not another town failed to give particulars in distance. Also, that the case of Ilodigwe vs State (2012) 51 NSCQR 288 at 307 – 308 relied upon by the trial Court was not taken in whole for its full purports. That in that case, the Court still showed that proximity to the scene of crime would still sustain the defence of alibi provided the accused was seen by people at the time the crime was said to have been committed. That the case of Ilodigwe vs. State (Supra) is therefore not an authority that once distance from the scene of crime is a short one, alibi cannot be sustained.

In the instant case, said counsel the Appellant named the people who saw him. No evidence was tendered by the prosecution to rebut same. Appellant counsel submitted further that the Court below found no solace in the evidence of the prosecution on this issue but tried to manage the inadequacy by stating thus:
“It is most probable that the 2nd Accused could have joined in the commission of the offence after which he returned to his house to sleep with his wife. (p. 200).”

He submitted that evidence bothering on capital punishment is too serious to be left at the mercy of such probability.

On another wicket, Learned Counsel for the Appellant submitted that the claim that the deceased heard the voice of the Appellant at the scene stood against his sole defence of alibi (p. 201). Even if it were an eye witness account of the Appellant’s presence at the scene, the law does not dispense with the requirement of investigation on the said sole evidence of alibi raised by the Appellant. On this, counsel referred to the cases of Zebulon vs. State (2019) 11 NWLR (p. 1684) 383 AT 422, Sani vs. State (2015) ALL FWLR (pt. 811) 1303 at 1323.

He added that it was also under this scenario of hearing Appellant’s voice that the trial Court also concluded constituted circumstantial evidence fixing the Appellant to the scene (p. 201). At issue here, said counsel is also the evidence of identification of an event that took place at night in this case, Appellant‘s voice.

He submitted that the apex Court has constantly held that where the evidence of identification is weak, the benefit of doubt should be given to the

accused person. He referred to the case of State vs. Yahaya (2019) 13 NWLR (pt. 1690) 397 at 420 and submitted that in the instant case, mere claim to hearing Appellant voice at night ought not to be considered as a strong evidence of identification.

He submitted that the circumstantial evidence Courts are permitted to rely upon must not give room for other co-existing circumstances. The facts must be incapable of any other reasonable explanation than the guilt of the accused alone. In this case, said counsel, it must be curtained that no other person could have similar voice. On this, he referred to the case of NWALU vs. State (2018) 14 NWLR (pt. 1638) 158 at 171.

On issue No. 1, Appellant’s counsel concluded that the Appellant’ defence of alibi having not been accorded appropriate evidential value ought to avail the Appellant. Particularly, the prosecution having failed to call any of the vital witnesses who visited Appellant’s house neither as witness nor cross examined on the vital point to the fact that PW6 was not in the team of visitation.

On issue No. 1, learned counsel for the Respondent submitted that the Appellant

had raised an alibi in his statement to the police dated 10th February, 2014 at Eket Divisional Police Headquarters. This statement was however not tendered by the PW6. This statement however also formed part of the proof of evidence served on the defence, which the defence was at liberty to tender but which they also failed to tender.

Furthermore, according to Respondent’s counsel, PW6 gave evidence at the Court below that when he and his team of Police Officers visited the home of the Appellant nobody in the Appellant’s house hold was willing to give any information about the Appellant’s where about on the night of the unfortunate incident (p. 174).

He concluded that the only defence raised by the Appellant being the defence of alibi was properly investigated and debunked by the prosecution.

In deciding issue No. 1, there are few points in the records which suggest that indeed the Appellant’s defence of alibi was not debunked by the prosecution.
1. It is not in dispute that on 10th February, 2014, a day after the incident, the Appellant made a statement to the police (pp.89-90) where he stated that “on that

8th February, 2014, I spent the night in my house with my wife and two brothers, Emmanuel Young Mbre and Michael Young Mbre and all of us slept in the same room…“
2. That there was no cross-examination on the Appellant’s statement in examination in chief that “On 21st February, 2014, Inspector Mohammed took me to my house at Afia Nsit, one Inspector Iquo and Inspector Inueshiet accompanied them. My wife was interviewed at my house. My wife told the police that I slept in the house on 8th February, 2014. We were taken back to the vehicle and driven to one Ime Johnny Mbre’s house where a search was conducted.”
3. That having regards to the above unchallenged and un-contradicted evidence of the Appellant; the statement of Inspector Bassey Ofem who testified as PW6 and who was not part of the team that visited the Appellant thus “we got to the house and nobody confirmed that he slept home that night” is inadmissible hearsay evidence.

At the above back-drop, the impression given by the learned trial judge and the learned counsel for the Respondent in this appeal that the Appellant’s statement to the

police of 10th February, 2014 was not tendered by the defence is a misunderstanding of the nature of the defence of alibi. The Appellant’s statement of 10th February, 2014 where he raised the defence of alibi at the earliest possible time on record ought to be tendered by the prosecution. The defence has no duty to tender the statement of an accused made at the earliest possible time in the custody of the police and the prosecution and forming part of the record of Court. This is because, though technically called a defence, the defence of alibi, unlike some other defence in the criminal law forms part of the case of the prosecution and the prosecution bears the overriding and conclusive burden to disprove the accused defence of alibi. Where the accused makes a statement to the police before trial indicating that he will rely on a defence of alibi, it is for the state to have that statement investigated before the trial and, where appropriate to use the results of that investigation to rebut the defence of alibi. See Christopher Okolo vs. Commissioner of Police (1977) N.N.L.R 1.
Indeed, an accused is not required to prove his alibi. Rather, the onus

is on the prosecution to disprove the alibi. Consequently once there is the slightest defence of alibi the plea must be investigated. Failure of the prosecution therefore, to investigate the alibi raised is fatal to the prosecution’s case. See Sowemimo vs. State (2004) 11 NWLR (pt. 885) 515 SC. Aiguoreghian vs. State (2004) 3 NWLR (pt. 860 367 SC. Nsofor vs. State (2002) 10 NWLR (pt. 775) 274.
In a similar situation as in the instant case, the apex Court in Ikono vs. State (1973) 8 NSCC 352 at 363 held thus:
“In our view, the learned trial judge adopted a wrong approach to the Appellant’s defence of alibi and thereby misdirected himself in law. For it is a well known principle of law that, although an alibi is commonly called a defence, it must be distinguished from a statutory defence such as necessity or diminished responsibility. …. A person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any burden as resting on the prisoner.”
See also LAWALI vs. State (2019) 4 NWLR (pt. 1663) 457 at 475, Kenneth Ogoala vs. The State (1991)

2 L. R. C. H. 660 at 671, Salami vs. The State [1998] 7 S. C. N. J. (part 1) 203, Esangbedo vs. The state 4 N. W. L. R. (part 114) 131, Okon Udoh Akpan vs. The State [1991] 5 SCNJ 1, BOZIN vs. The State [1991] 2 QLRN 69 at 85.

Again, the attempt by the Respondent’s counsel to hang on the evidence of PW6 at page 174 of records that “we got to the house and nobody confirmed that he slept at home that night” cannot be sustained in the light of the unchallenged and un-contradicted evidence of the Appellant at page 180 of records where he specifically and categorically mentioned the names of the police officers who took him to his house and interrogated his wife who said he (Appellant) slept at home on 8th February, 2014. The evidence of PW6 is in the circumstance hearsay and inadmissible evidence as it offends the provision of Section 126 of the Evidence Act. PW6 was not one of the officers who visited the house of the Appellant on 21st February, 2014 and none of the said officers was called to give evidence at the trial. See Sylvester Utteh vs. The State [1992] SCNJ (pt. 1) 183 at 195 Subramaniam vs. Public Prosecutor [1965] 1 W. L. R. 965

at 969. R. vs. Mclean [1968] 52 61 App. Rep. 80.
Meanwhile, the holdings of the trial Court at page 200 and 203 of Records that:
“It is most probable that the 2nd accused could have joined in the commission of the offence after which he returned to his house to sleep with his wife (p.200).
As rightly pointed out by the prosecution, if the 1st Accused wanted to exonerate the 2nd Accused, it was his duty to reveal the identity of the other person who was with him to carry out the criminal act.” (p. 203).

In the words of the learned counsel for the Appellant would truly appear that the Court below opted to fill the gap left by the prosecution with probabilities and speculative evidence.
Indeed, the above pieces of extraneous conclusions were adopted in place of the requisite evidence to debunk the Appellant’s defence of alibi. Unfortunately, the learned trial judge must have forgotten that probabilities, speculations and suspicion do not have a place in our means of proof and cannot take the place of legal proof. See Abieke vs. State (1975) 9 – 11 SC 97. BOZIN vs. State (1985) 2 NWLR (pt. 8) 465. State vs. Ogbubunjo

(2001) 2 NWLR (pt. 698) 576. Orji vs. State (2008) 10 NWLR 9pt. 1094) 31.

In the instant case, the Respondent did not discharge the burden of disproving the defence of alibi raised by the Appellant. Issue No. 1 is resolved in favour of the Appellant.

On issue No. 2, learned counsel for the Appellant submitted that the conviction of the Appellant was summed up on the following major grounds:
i. That the 1st Accused who confessed to committing the murder alone ought to have mentioned any other person who committed the crime with him if he does not want the Court to believe it was the Appellant (p. 203).
ii. That Appellant was bound by the dying declaration purportedly admitted by the 1st accused (p. 203).

Learned Counsel for the Appellant stated that the conclusion of the Court below that the 1st Accused who confessed to sole responsibility should state who else was with him if he does not want the Court to believe it was the Appellant that stated thus:
“As rightly pointed out by the prosecution, if the 1st accused wanted to exonerate the 2nd accused, it was his duty to reveal the identity of the other person who was with him

to carry out the criminal act.” (p. 203)

He submitted that it was this failure of the 1st Accused to provide whoever was said to have committed the crime with him if any that made the Appellant appear as one to fill the gap left by the prosecution, it was akin to tasking the Appellant as an accused person to prove his innocence which is not known to our jurisprudence. He referred to the case of C. O. P. vs. Amuta (2017) ALL FWLR (pt. 879) 760 at 783.

On another wicket, learned counsel for the Appellant submitted that the Appellant is also deemed to have been bound by the dying declaration purportedly admitted by the 1st Accused (p. 203). He contends that there was no proof of such dying declaration neither was same admitted by any of the accused persons as records would show even if a dying declaration was a matter to be settled by “admission’. No such admission by a co-accused where any would bind the Appellant.

He submitted that it is on record that the deceased made 2 extra judicial statements on the incident but died 6 months after without cross examination (pp. 8 – 9). Obviously, said counsel, the deceased extra

judicial statements made to the police would not have been the dying declaration from its contents. But the prosecution witnesses have given versions of the statement they heard from the deceased.

Learned counsel for the Appellant analyzed the evidence of PW1 on record, how he heard from the deceased that only the 1st Accused entered her room to attack her and later that the deceased mentioned that “one Ime Johnny sent Michael Anietie and Kingsley Young to kill her”.

Appellant’s counsel submitted that by the accounts of PW3 and PW5 at pages 149 and 157 respectively, the evidence is that 1st and 2nd Accused forcefully opened the deceased door to kill her upon the instruction of one Ime Johnny Mbre. And, that it is worthy of note that the police and prosecution found fault in the evidence of PW1, PW3 and PW5 concerning Ime Johnny Mbre and exonerated him after investigation. That, according to the investigation report at page 22, the police found nothing linking him to the crime and stated so emphatically.

Learned Counsel for the Appellant also submitted that, the account of the deceased dying declaration was given by PW6 upon

visiting the deceased in the hospital thus:
“Anietie and Kingsley! You came to my house to attack me, look at the injuries you inflicted on me, you thought I would be dead by now, but God has kept me alive till now to tell people what you did to me, if I die today, it it the two of you who are responsible of my death.”

He submitted that at page 197, the Court below after considering the issue of dying declaration stated thus:
“I am persuaded to accept the deceased statement to PW3, PW5 and PW6 concerning the cause and circumstance of events which resulted in her death.”

Appellant’s counsel reasoned that it is not clear which of the accounts by the prosecution witness constituted an “admission” by the 1st Accused that bound the Appellant” as held by the trial Court (p. 203) that the one attributed to PW1, PW3 and PW5 apart from the inconsistencies among them as dying declaration, was also discredited by the prosecution when, they found that there was nothing linking Ime Johnny Mbre to the crime, and accordingly exonerated him (p.21). The same prosecution, said counsel cannot approbate and

reprobate by turning round to present only parts of the declaration as dying declaration.

He submitted that a dying declaration being what it is, cannot be sieved and taken in parts as done in the instant case. There must be strict proof of the exact words used by the deceased to avoid uncertainties which was absent in the instant case. He referred to the cases of Ezeugo vs. State (2013) LPELR – 19984 (CA) and Ikono vs. State (1973) 8 N S C C 652 at 362 – 363, Dada vs. State (2018) ALL FWLR (pt. 920) 77 at 101- 102.

He concluded on issue No. 2 by relying on the case of Zebulon vs. State (2019) 11 NWLR (pt. 1684) 383 at 425 to say in the circumstances of this case, the conviction of the Appellant by the Court below did not go with the requisite caution for a trial carrying death penalty. That it was rather fraught with uncertainties, sentiment and extraneous considerations which ought to create sufficient doubt in the case of the prosecution.

Learned Counsel for the Respondent reacted to Appellant’s issue No. 1. He submitted that in proof of her case, the prosecution relied on the evidence of their witnesses and the exhibits

tendered. He singled out Exhibit 8 as bearing an “eye witness” account by the victim herself. Exhibit 8, he said was made during the lifetime of the deceased, stating the cause of the injuries which led to her death, naming the persons who inflicted the injuries on her. Therefore, when the issue arose in the instant case as to the cause of death of the deceased, Exhibit 8 became relevant and admissible as dying declaration.

On this, Respondent’s counsel referred to the cases of Anthony Okoro vs. The State (2012) LPERL 7846 (SC) Ugochukwu Okereke vs. The State (2016) LPELR – 40012 (SC), Akpan vs. State (1992) 6 NWLR (pt. 248) 439, Chukwuemeka Ezeuko (Alias Dr. Rev. King) vs. The State (2016) LPELR – 40046 (SC).

Learned Counsel for the Respondent revisited and reviewed the evidence of PW1 PW3 PW5 and PW6. He submitted that although the evidence of PW1, PW3 and PW5 might not meet the legally acceptable standard of dying declaration, these pieces of evidence however serve as corroborative evidence to the one given by PW6. The evidence given by PW6 provides strict proof of the exact words used by the deceased. That in making

this statement to the PW6, the deceased still believed herself to be in danger of death, even though she was in the hospital and must have entertained some hope of recovery, she still knew she might die – this is evident in her concluding sentence – “if I die today, the two of you are responsible for my death”.

Respondent’s counsel added that the deceased stated in Exhibit 8 that when she heard people coming from outside her door that night, she initially thought they were robbers. Then, “I actually heard voices to be that of Michael Anietie Johnny Mbre my brother in-law and kingsley Young Mbre Johnny also a brother in-law where they were muttering words outside my bedroom…”

He referred to the case of Happy Kingsley Idemudia vs. The State (2015) LPER SC 202/2012 to say that the principle of law which must guide a Court faced with the evidence of witnesses fixing an accused person to the scene of crime is settled that such a witness must have mentioned the name of the accused person or given description of him at the earliest opportunity. In his Reply Brief, Learned counsel for the Appellant submitted that

the issue of dying declaration as it affects the Appellant must be taken in whole and not selectively. He referred to the case of Anambra State Govt. vs. Gemex Int. Ltd. (2011) LPELR – 19733 (CA) and submitted that in the circumstance, the Court cannot be called upon to pick and choose from which of the versions to believe.

One could start the discussion of issue No. 2 from the perspective of the learned counsel for the Respondent – for clarity of purpose. He made two categorical statements:
1. Exhibit 8, the extra judicial statement of the deceased itself constitute a dying declaration distinct from those made by PW1 PW3 PW5 and PW6, since Exhibit 8 meets all the requirements of admissibility stipulated by Section 40 of the Evidence Act 2011.
2. That although the evidence of PW1, PW3 and PW5 might not meet the legally acceptable standard of dying declaration, these pieces of evidence, however serve as corroborative evidence to the one given by PW6.

Section 40 of the Evidence Act 2011 which governs the admissibility of dying declaration as exception to the hearsay rule reads thus:
40(1) A statement made by a person as to

the cause of his death, or as any of the circumstances of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believe himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.
(2) A statement referred to in Subsection (1) of this Section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question.
The following conditions are to be fulfilled under the provision of Section 40 of the Evidence Act 2011.
i. The statement itself which may be written or verbal must be of relevant facts.
ii. The declarant must have died before evidence of the declaration is required to be given.
iii. The declaration must relate to the cause of death of the declarant or as to any of the circumstances of the events which resulted in his death and the cause of the declarant’s death must be in question in the trial.
iv. The declaration is relevant whatever may be the nature of the proceeding in which the cause of death comes into question.

At the time of making the statement, the declarant should believe himself to be in danger of approaching death although he might have entertained some hopes of recovery.Now Exhibit 8 is contained at pages 9 – 10 the record. It is a statement made by the deceased Adiaha Mbre Johnny and recorded by one Inspector Emmanuel Eboh on 18th February, 2014. It would be recalled that Exhibit 8 was made in the presence of PW6 who was accompanied to the hospital by Inspector Eboh to visit the deceased on 18th February, 2014. This was about (9) nine days after the incident though the deceased died about six months thereafter in August, 2014. In a sense therefore Exhibit 8 could be said to have further explained the statement of the deceased to PW6 on the same day at the same time on 18th February, 2010.
The relevant portions of Exhibit 8 read thus:
“… I being the victim in the case reported by my village head – one Friday Mbre Johnny voluntarily wishes to state as follows:
On the 9th of February, 2014 at about 0.330 hours I woke up from the sleep when I overheard some discussion from people outside my bedroom, their

discussion were perceived by me to be thieves. When I was telling them from my bedroom that I don’t have money if it is what they are looking for. I actually heard voices to be that of Michael Anietie Johnny Mbre my brother inlaw and Kingsley Young Mbre Johnny also a brother in-law. While they were muttering words outside my bedroom, I heard a bang three times on my door which forced open with only Michael enter my bedroom and with a (Matchete/axe) in his hands and cut my left leg and hand. Thereafter I had falling in posture to have died in the course, he used the axe to cut, my jaw and chest, stating that he is hitting my mouth because I talk too much and very insultive. He left me on the ground believing that I am dead and joined his gang outside waiting for him. I strongly believe and suspect one Ime Johnny to be behind my attack with intent to kill me …”

It seems to me that there is nothing in the above statement of the deceased declarant – Exhibit 8 which might suggest objectively that the declarant subjectively “believed himself to be in danger of approaching death” at the time the said statement was made. The

statement of the deceased is not admissible as a dying declaration in the absence of proof that he believed himself to be in such danger. Such proof is sometimes attained by means of the very words uttered by the deceased. Indeed, for a dying declaration to be admissible, strict proof of the actual words used or uttered by the deceased is generally required. This is necessary to avoid uncertainties as the words used mirror the state of mind of the declarant. See Akpan Ikono vs. the State [1973] 5 S. C. 231, R. vs. Ogbuewu [1949] 12 W. A. C. A. 483, R. vs. Bank Weyeku [1943] 9 W. A. C. A 195, Grace Akine vs. The State [1988] 7 S. C. N. J. (pt. 11) 226, [1998] 3 N.W.L.R. (pt. 88) 35. Kuse vs. The State [1969] N. M. L. R. 153.
Again, in the instant case, the accounts given by PW6 as well as Exhibit 8 were made about 9 days after the incident. The Court has held among others that such statement ought to be made contemporaneously with the attack so as not to leave room for after thoughts and mistakes. In Ezeugo vs. State (2013) LPELR – 19984 (CA) Pp. 55 – 57, the Court of Appeal per Jauro JCA held thus:
“The statement made by the

deceased not believing herself to be in the fear of approaching death cannot qualify as dying declaration. The statements will also not qualify as res gestae as they made on 24th and 25th July, 2016 not contemporaneously with the occurrence of the unfortunate incident.”
Furthermore, the statement purportedly made by the deceased to PW1, PW3, PW5 and PW6 do not qualify as dying declaration also on account of the lack of evidence that the declarant was in danger of approaching death at the time they were made but also being at variance with one another in content, they heightening uncertainties as the “dying declaration ought to be strictly proved in the exact words by the deceased so as to remove any lingering uncertainties as to what was not properly proved in the present case.” See Ikono vs. State (1973) 8 NSCC p. 352 at 362 – 363.

Finally on this point, all that could be gathered on the Respondent’s reliance on Exhibit 8 even if it were held to be relevant and admissible as dying declaration is that the deceased heard the voice of the Appellant “muttered” outside her room. And thereafter, the 1st Accused

returned to “his gang outside waiting for him”.

As pointed out by the learned counsel for the Appellant, it was also under this scenario of hearing Appellant’s voice that the trial Court also concluded constituted a circumstantial evidence fixing the Appellant to the scene. (p. 201).

At issue here therefore is the identification of an event that took place in the night (presumably amongst gang) in this case, Appellant’s voice. I do agree with the learned counsel for the Appellant, that mere claim to hearing Appellant’s voice at night (amongst people) ought not to be considered as a strong evidence of identification. See State vs. Yahaya (2019) 13 NWLR (pt. 1690) 397 at 420.

Finally, I conclude issue No. 2 by saying that it does appear that the Court below did not adequately advert to the consideration which ought to affect the mind of a trial Court when it comes to weigh the effect of evidence in a charge attracting capital punishment. If it had, it would have given the Appellant the benefit of the doubt with the inadequacies of the prosecution’s testimony including insistence on proof by hearsay evidence,

suspicion and speculation and even withholding of evidence. The apex Court stated as follows in Ndidi vs. The State (2007) ALL FWLR (pt. 381) 1617 at 1650 – 1651, (2007) 13 NWLR (pt. 1052) 633:
“In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.”
See also Ebri vs. The State (2004) 11 NWLR (pt. 885) 589 at 105. Issue No. 2 is resolved in favour of the Appellant.

Having resolved the two (2) issues in this appeal in favour of the Appellant, the appeal is meritorious and it is allowed.

The conviction and sentence of the Appellant – Kingsley Young Johnny – by Hon. Justice Nsemeke Daniel of the Akwa Ibom State High Court Eket delivered on

23rd July, 2018 in Charge No. HEK/12C/2018 is hereby set aside.

The Appellant – Kingsley Young Johnny is accordingly discharged and acquitted of the charges of conspiracy and murder.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Mojeed Adekun!e Owoade, JCA, graciously made available to me the judgment just read in draft.

My brother has meticulously considered the issues and arrived at the correct decision on issues. I adopt my Lord’s reasoning and conclusion as mine and thereby allow the appeal. The judgment of Nsemeke Daniel J. of the Akwa State High Court in Charge with No. HEK/12C/2018 delivered on the 23rd of July, 2018 is hereby set aside. In its place, appellant is hereby discharged and acquitted.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of previewing the judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered.
I agree entirely with the reasoning and conclusion, reached. I do not have anything useful to add. The appeal is meritorious and it is hereby allowed. The appellant is accordingly discharged and acquitted.

Appearances:

Ekpedeme Iyoho, Esq. For Appellant(s)

Ime A. Ifon, Esq. For Respondent(s)