JUDE ONWUZULIKE v. THE STATE (2017)

JUDE ONWUZULIKE v. THE STATE

(2017)LCN/9498(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of February, 2017

CA/E/571C/2014

RATIO

CONSTRUING AND INTERPRETATION OF SECTION 83 AND 84 OF THE EVIDENCE ACT 2011
In construing the provisions of Sections 83 and 84 of the Evidence Act, 2011, attention has to be given to each and every punctuation inserted between one section, subsection or paragraph to arrive at the intention of the legislature. The draftsman employed punctuations such as coma or semi-colon in drafting the provisions of the said section. In Maxwell On the Interpretation of Statutes, 12th Edition by P.T St. J. Langan appears the following passage at Pages 13 to 14 under Punctuations to wit:
“Punctuation is disregarded in the construction of statutes, since there was generally no punctuation in old statutes as engrossed on the Parliament Roll, and not all of the modern vellum prints of statutes are punctuated. In an Act of Parliament there are no such things as bracket any more than there are such things as stops. Before 1850 there was no punctuation in the manuscript copy of an Act which received the Royal Assent, and it does not appear that the printers had any statutory authority to insert punctuation thereafter. So even if punctuation in more modern Acts can be looked at (which is very doubtful), I do not think that one can have any regard to punctuation in older Acts. In the same way, the manner in which a statute has been printed, the indentation of the paragraphs and so on is irrelevant.
The irrelevance of punctuation has two consequences.
First, a provision in a statute may be read as though the punctuation which appears on the face of the Act were omitted. By Section 113(4) of the Housing Act, 1957, the local authority shall from time to time review rents and make such changes, either of rents generally or of particular rents, and rebates (if any) as circumstances may require. This is to be read as though there were no comma after rents where that word occurs for the third time. The obligation, said Harman, L.J., is not to make rebates, as grammatically it should be if the comma were there, but to make changes of rebates (if any).
Secondly, where it is necessary to give a provision a particular construction which is at variance with the way in which the section is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the Act. Section 10 of the Fugitive Offenders Act, 1881 conferred on a Superior Court power to discharge a fugitive where by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise it would be unjust or oppressive or too severe a punishment to return him. It was held that, apart from cases of a trivial nature, the Courts discretion to discharge a fugitive could be exercised in any case in which the return of the man would be unjust or oppressive or too severe, and was not confined to cases in which the application appeared not to have been made in good faith. In other words, the section was given a wide construction, as though a comma had been inserted before or otherwise”.
I think since punctuations are inserted by the draftsman in modern statutes, I do not see any rational reason why the Courts should disregard them in the interpretation of any section, subsection or paragraphs and sub-paragraphs in a statute or rule of Court. In Maxwell On the Interpretation of Statutes (supra) appears once again at Pages 86 to 87 the following exposition of law as to how to construe words and phrases no matter how wide or restrictive they might be in a statute to wit:
However wide in the abstract, general words and phrases are more or less elastic, and admit of restriction or extention to suit the legislation in question. The object or policy of this legislation often affords the answer to problems arising from ambiguities which it contains. For it is a cannon of interpretation that all words, if they be general and not precise, are to restricted to the fitness of the matter, that is, to be construed as particular if the intention be particular.
Thus, an Act which, reciting the inconveniences arising from churchwardens and overseers making clandestine rates, enacted that those officers should permit every inhabitant of the parish to inspect the rates, under a penalty for refusal, was held not to apply to a refusal to one of the churchwardens, who was also an inhabitant. As the object of the Act was to protect those inhabitants who had previously no access to the rates (which the churchwardens had), the meaning of the term inhabitants was limited to them.
See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt. 2) 266; NEC vs. Zuogu (1993) 2 NWLR (Pt. 275) 270 and Orubu vs. NEC (1988) 5 NWLR (Pt. 94) 323. Indeed in Mobil Nig. Plc vs. IAL 36 Inc. (2000) FWLR (Pt. 10) 1632, Karibi-Whyte, JSC explained at page 1650 Paragraphs C to D to wit:
It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to get the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative in the construction of a section to read together all the sections and paragraphs. This is because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections in the same Act. See Minister of Housing and Local Government vs. Lambert (1969) 2 WLR 447. Clear and unambiguous words should be given their ordinary literal meaning. See Olokologbe vs. Alami (1987) 3 NWLR (Pt.61) 377 SC; African Newspaper vs. Nigeria (1985) 2 NWLR (Pt.6) 137. See Tarka & Ors. vs. D.P.P. (1961) NRNLR 63.
In construing the provisions of Section 84(1)-(4) of the Evidence Act, 2011 it has to be again borne in mind that information might have been generated from a statement contained in a document produced by a computer [See Section 84(1) and (2) to (d)] or from a combination of computers operating in succession over that period [See Section 84(3) (a)-(b)] or by different combination of computers operating in succession over that period (See Section 84 (3)(c)) or in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers all the computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. [See Section 84(3) (d)] of the Evidence Act, 2011. Section 84(4) and (5) of the Act further provides as follows:
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say:
(a) Identifying the document containing the statement and describing the manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in Sub-section (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section:
(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.?
Section 84(4)(a)-(b) (i) and 5(a)-(c) of the Evidence Act, 2011 confers an unfettered discretion on the party seeking to rely on computer-generated information or evidence to produce a certificate (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (i) dealing with any of the matters to which the conditions mentioned in Sub-section (2) of Section 84 of the Act relates. The certificate has to …purport to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be given in evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. PER JOSEPH TINE TUR, J.C.A.

EVIDENCE: ADMISSIBILITY OF EVIDENCE IN JUDICIAL PROCEEDING
Admissibility of evidence in any judicial proceeding is governed by its relevance to the facts in issue. See Musa Sadau vs. The State (1968) N.M.L.R 124 at 129; Agunbiade vs. Sasegbon (1968) NMLR 223 at 226 and A.C.B. v. Alhaji Gwagwada (1994) 4 SCNJ (Pt. 2) 268 at 277. PER JOSEPH TINE TUR, J.C.A.

EVIDENCE: RELEVANCE OF VOLUNTEERED STATEMENTS BY WITNESSES TO THE POLICE
Statements volunteered by the witnesses to the police are to be used for the purpose of cross-examination. See Esangbedo v. State (1989) 7 SCNJ 10 at 15; Onwe vs. The State (1975) 9 NSCC 251 at 381; Q vs. Akanni (1960) 5 FSC 120 at 123 and Locknan vs. State (1972) 5 S.C. 22. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: THE WEIGHT OF THE STATEMENT OF AN ACCUSED TO THE POLICE
An accuseds statement to the police is not evidence of the truth of its contents but is evidence that it was made at the earliest opportunity the occasion for its making had arisen. See Adelumola vs. The State (1988) 3 SCNJ (Pt.1) 68. The statement of an accused is usually tendered to show it was made and not as proof of the truth of its contents hence the accused has to testify to confirm or deny it. The exception relates to confessional statements. See Kasa v. The State (1994) 6 SCNJ (Pt.1) at 14-15 and Ozaki vs. The State (1990) 1 NWLR (Pt. 124) 92 at 113. The Courts have also held that an accuseds statement to the police is his reaction to police inquiries but certainly not the evidence of the truth of the facts stated therein. See R. vs. Storey (1968) 52 C.R APP.R 334 and Commissioner of Police vs. Oshifalujo (1983) 1 N.C.R 308 at 316. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

JUDE ONWUZULIKE Appellant(s)

AND

THE STATE Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned before the High Court of Justice of Anambra State of Nigeria, holden at Otuocha in Anambra Judicial Division before G.C. Anulude, J., on a charge of kidnapping contrary to Section 315(2)(a) of the Criminal Code, Anambra State (Amendment) Law, 2009. The charge was in the course of proceedings amended to read Section 315(1)(b) of the Criminal Code. The appellant pleaded not guilty to the amended charge which read as follows:
?JUDE ONWUZULIKE on the 14th day of January, 2013 at Umueri, Anambra State Local Government Area, in the Anambra Judicial Division you unlawfully imprisoned CHINWUBA EKWENZE, within Anambra Judicial Division in such a manner as to prevent him from applying to Court for his release or disclosing to any other person the place where he is imprisoned or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned.?

Section 315(1)(b) of the Criminal Code under which the appellant was arraigned, tried, convicted and sentenced on 16th April, 2014 reads as

follows:
?(1) Any person who:
(a) xxxxxx
(b) Unlawfully imprisons any person within Anambra State in such a manner as to prevent him from applying to a Court for his release or from disclosing to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned; is guilty of a felony, and is liable to imprisonment for life.?

The learned trial Judge pronounced sentence on the appellant on 16th June, 2014 which is at page 186 lines 8-9 of the printed record as follows: ?The sentence upon you Jude Onwuzulike is life imprisonment without option of fine.? Aggrieved by the decision the appellant filed a Notice of Appeal on 12th September, 2014 on nine grounds. The appellant filed a brief on 23rd February, 2016 which was amended with the leave of this Court on 10th February, 2014. A deeming order was made on 18th April, 2016 by this Court. The respondent filed a brief of argument on 6th April, 2016. Leave was granted to the respondent to amend her brief on 6th May, 2016. The appellant filed a Reply Brief on 24th May,

2016. All briefs were adopted by learned Counsel when the appeal came up for hearing on 8th December, 2016. The appellant formulated a lone issue for determination at page 6 Paragraph 3.01 of the brief to wit:
?Whether the learned trial Judge was right in his approach, findings and conclusions reached on the evidence adduced at the trial by which he convicted the appellant of the offence of kidnapping (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9).?

The respondent adopted this lone issue for determination at page 4 Paragraph 3.1 as follows:
?Whether the learned trial Judge was right in his approach, findings and conclusions reached on the evidence adduced at the trial by which he convicted the appellant of the offence of kidnapping.?

The appellant?s case is set out at pages 3-6 Paragraphs 2.01 to 2.13 of the amended brief of argument. The respondent anchored her case from pages 1-4 Paragraph 2.1 to 2.9 of the Amended Brief of argument.
?
In arguing this appeal, learned Senior Counsel to the appellant referred to Section 315(1)(b) of the Criminal Code and the evidence the prosecution witnesses as not supportive of

the charge. Learned Counsel contended that the offence was not properly investigated when one considers the evidence of PW1-PW6 and the exhibits tendered at the trial. Attention was drawn by the learned Counsel to the extra-judicial statements made by the prosecution witnesses. Counsel argued that the evidence amounted to hearsay under Sections 37-40 and 84 of the Evidence Act, 2011, citing Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 248; Kakih vs. PDP (2014) 15 NWLR (Pt. 1430) 374 at 419 and Kubor vs. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 577-578. Learned Counsel again drew attention to the authority of Flash Odds Ltd. vs. Akatugba (2001) 9 NWLR (Pt. 717) 46 at 63 where Niki-Tobi, JCA (as he then was) where the learned Justice had held that documentary exhibits have to be tendered through their makers else, no probative value should be attached to it. Learned Counsel further contended that the sole evidence upon which the appellant was convicted was circumstantial but not direct. The evidence did not meet the standard for a conviction, citing Ijiofor vs. State (2001) 9 NWLR (Pt.718) 371 at 389-390. That the appellant in this circumstance was denied fair

hearing. Learned Counsel referred to Mfa vs. Inogha (2014) 4 NWLR (Pt. 1397) 343 at 375 read together with Section 36(5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Learned Counsel urged this Court to resolve the lone issue in favour of the appellant, allow the appeal, discharge and acquit the appellant.

The argument of J.O. Nwankiti, Esq. for the State is that the parol and documentary evidence adduced by the prosecution to secure conviction of the appellant was direct and positive. Learned Counsel drew attention to the evidence of PW1 to PW6 and Section 315(1)(b) of the Criminal Code under which the appellant was prosecuted. Learned Counsel cited Subramanian vs. Public Prosecution (1956) 1 WLR 965 and Sylvester vs. Utteh (1992) 2 NWLR (Pt. 223) 257 in argument. The learned Counsel also drew attention to Section 83 to 84 of the Evidence Act, 2011 read together with Ikumonihan vs. State (2014) & NWLR (Pt. 1392) 564 as authority that computer generated evidence need not be put in as an exhibit only through its maker. Learned Counsel submitted that the conviction of the appellant was not founded solely on

circumstantial but direct evidence adduced by the prosecution witnesses, citing Deli vs. State (2011) 1 NWLR (Pt. 1229) 508. Learned Counsel urged this Court to dismiss this appeal and affirm the decision of the learned trial Judge.

The Evidence Act, 2011 is titled A New Evidence Act which shall apply to all judicial proceedings in or before Courts in Nigeria; and for related matters.? What is ?new? has recently come into being, is unfamiliar or unaccustomed to etc. See Black?s Law Dictionary, 9th Edition, Page 1141. Sections 1-5 of the Act provides as follows:
?1. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others:
Provided that:-
(a) The Court may exclude, evidence of facts which, though relevant or deemed relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of

the law for the time being in force.
2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies:
Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case or under this Act.
3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.
4. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
5. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or, facts in issue; or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.?
The establishment or proof of a crime is dependent on the facts in issue

and of such other facts as are relevant or material taking into consideration all the circumstances of the case. The facts may be by direct or circumstantial evidence, depending on the manner the crime was allegedly committed. Phipson On Evidence, 15th Edition, Pages 2 to 4 Paragraphs 1-03 to 1-07 appears the following passage:
?Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, the means, apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject-matter of such means. The word is also used to denote that some fact may be admitted as proof and also in some cases that some fact has relevance to the issues of fact. In a real sense evidence is that which may be placed before the Court in order that it may decide the issues of fact. There also are other shades of meaning that it is not necessary to discuss here. (For example, it was held that ?evidence? in the Inheritance (Family Provision) Act, 1938 covers all the material that persons outside a Court of law take into consideration when deciding how

to act.) Evidence, in the first sense, means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute. In the second sense it means the content of that testimony.
FACTS:
No satisfactory definition of the term ?fact? has been or perhaps can be given. Broadly, it applies to whatever is the subject of perception or consciousness. But juridically it has generally to be distinguished from law, sometimes from opinion and sometimes from testimony and documents. It is not possible always to apply these distinctions consistently.
TYPES OF EVIDENCE:
The subject of evidence is not one which lends itself readily either to definitions or divisions. Few of its terms have acquired settled or unambiguous meanings, and no two writers adopt the same classification. The following divisions or distinctions, however, which are commonly observed in practice or by writers, comprise all that are really essential to be noticed:
DIRECT, INDIRECT AND REAL EVIDENCE:
By direct evidence is meant that the existence of a given thing or fact is proved either by its actual

production, or by the testimony or admissible declaration of someone who has himself perceived it. By indirect or presumptive evidence is meant that other facts are thus proved, from which the existence of the given fact may be logically inferred. The two forms are equally admissible, and the testimony, whether to the factum probandum or the facta probantia, is equally direct; but the superiority of the former is that it contains at most only one source of error, fallibility of assertion, while the latter has, in addition, fallibility of inference. Little is to be gained from a comparison of their weight, since, save in the case of actual production, both forms admit of every degree of cogency from the lowest to the highest.
REAL EVIDENCE:
Material objects other than documents, produced for inspection of the Court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon. Unless its genuineness is in dispute, the thing speaks for itself.
Unfortunately, however, the term ?real evidence? is

itself both indefinite and ambiguous, having been used in three divergent senses:
(1) Evidence from things as distinct from persons.
(2) Material objects produced for the inspection of the Court. This is the second and most widely accepted meaning of ?real evidence.? It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing.
(3) Perception by the Court (or its result) as distinct from the facts perceived. Although the physical production of objects is a valuable factor in juridical proof and of use in technical classification, it is questionable whether the term ?real evidence? is a very helpful one by which to express it. The phrase is hardly ever used in practice, material objects being referred to either by name, or, more loosely, as circumstantial evidence. In books, especially when dealing with classification, the phrase is occasionally convenient. Which of its meaning then

should be retained? It seems advisable to adhere to the more usual definition ?material objects, other than documents, produced for the inspection of the Court.?
Sections 125 to 126 of the Evidence Act, 2011 provides as follows:
?125. All facts, except the contents of documents, may be proved by oral evidence.
126. Subject to the provisions of Part III, oral evidence shall, in all case whatever, be direct if it refers to:-
(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;
Provided that the opinion of experts expressed in any treaties commonly offered for sale, and the grounds on which such opinions are held,

may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.?
When a crime is alleged to have been committed by any person, to prove the allegation, the prosecution usually or often relies on oral or documentary evidence from the victim, if he is alive and is able to testify, or on the evidence of witnesses who testify that they saw the actual commission of the crime. But there are occasions the prosecution puts forward witnesses who testify as to what they had heard from other witnesses. The evidence of witnesses who perceived that fact by whatever sense or manner may also be relied upon by the prosecution to secure conviction. The opinions and the grounds for holding such opinions may be utilized by the prosecution to establish the crime. In either case, the Court would be faced with what weight to attach to the oral or documentary evidence to support the charge. Section 34(1)-(2) of the Evidence Act, 2011 provides as follows:
?(1) In estimating the

weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular:
(a) To the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts; and
(b) In the case of a statement contained in a document produced by a computer:-
(i) The question whether or not the information which the statement contained, reproduces or is derived from, was supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information, and
(ii) The question whether or not any person concerned with the supply of information to that computer or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent facts.
(2) For the purpose of any rule of law or practice

requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.?

In this appeal, the prosecution relied on eye witnesses? account of what happened followed by what some witnesses heard or perceived supported by computer generated evidence from MTN network that captured calls of the appellant and one Nnamdi Osita from 14th January, 2013 from the disappearance of the victim of the crime. The victim of the crime was one Chinwuba Ekwenze. The charge shows that he was ?unlawfully imprisoned? on the 14th day of January, 2013 by the appellant at Umueri, Anambra East Local Government Area, within Anambra State by the appellant. The prosecution relied on the evidence of John Ekwenze (PW1); Chijioke Emeto (PW2); Mrs. Kelechi Nwadere (PW3); Mrs. Ngozie Ebelechukwu Onwumelu (PW4). PW5 was Fred Nwachukwu of the State Security Service while Inspector Simeon Madu (PW6) was from the Criminal Investigation Department in Awka, Anambra State. The evidence from

the prosecution witnesses was that Chinwuba Ekwenze is no longer alive hence he could not be called to testify, for dead men do not talk; neither can they explain the cause of their death nor who caused their death. They cannot point out their assailants. PW1?s evidence is at page 104 lines 15 to page 107 lines 1-20 of the printed record as follows:
?PW1: Sworn on Bible and states in Ibo language. My name is John Ekwenze. I live at No.11 Obi Crescent, Nkpor. I am a Welder. I know the defendant. On the 14th day of January, my brother Chinwuba Ekwenze called me on the phone. That the person he told to look land for him has seen the land and asked me to escort him. I came to Awkuzu Park in new Parts when I got there I called my brother on his phone. His phone was ringing but he did not pick. He sent me a message that he is inside the bank. He will call me later. He came out from the bank and entered the vehicle. On getting to Nteje at the slaughter house ? my brother answered a call. I asked him who called him on phone. He said is the defendant in Court who called him on phone. He told him that he is going home. Defendant replied and

told him that he is nearby. When he gets to Awkuzu junction, he should wait for him. My brother called back the defendant and told him they are in Awkuzu junction. The defendant told my brother to cross the main road that he will see his vehicle parked there. When we got there, we exchanged pleasantries. He asked my brother who is the man with him. My brother told the defendant that I am his elder brother, defendant asked my brother what he is going to do in the village. He said he wants to buy land in the village. Defendant took us in his car to the village. When we got to the village, we saw the 1st land, my brother said he doesn?t want the land. When we got to the 2nd one, he said he likes the 2nd one that he will buy it. He told him that he needs two plots. They told him each is N500,000.00 and the two plots N1,000,000.00. My brother prized N800,000.0. He now left his phone number with the owner of the land and if he will sell at N800,000.00, he should call him on phone. We entered a vehicle and came back. On getting to Igboezunu Aguleri, the defendant called me bros because he doesn?t know my name. The defendant told me that the boy that is

staying with him impregnated a girl. He said the family of the girl to bring four cartons of beer and some money for the dowry of the girl. I told him that what family of the girl told him is good because they are not from the same town. He dropped us at the junction of Igboezunu and he said he is going to Anaku to see someone. We now cross the road to Awkuzu. My brother told him that the 2 million he gave to the defendant, he told him to give him back the money so that he can use the money to develop his land. We got to Awkuzu junction, we took a vehicle to Onitsha and went home. My brother told the defendant to pay him 2 million Naira so that when he get the land on 24th January, 2013. On the next day being 15th January, 2013, I was in my workshop. The apprentice in my brother?s shop told me he has been calling my brother?s phone, he said it?s not going. I now used my own phone to call my brother, his line was not going. His neighbour told me that the defendant asked my brother to escort him to Umueri after the close of market. I headed for the place where the defendant is staying, I could not get him. I went to his office but he is not

there. I asked the police for his number they refused and asked me to wait for him. I started looking for his house and saw where he is living. When I got where he is staying, there is a small restaurant where they sell drinks. I now asked the owner of the Restaurant if Jude lives here. She said yes. I sat down to wait for him. I was waiting for him when my sister called me that I should come back to my workshop at Ngbuka there are some people that accompanied me to the defendant?s place. I told them to wait for me there. They called me on phone that the defendant is back that I should come back. On getting there, I did not see the defendant. I asked the people I kept there what really happened. They now told me that the woman that owns the restaurant told the defendant a man from Nando came to look for him. Defendant entered his car and drove away. I told the person that narrated the story what happened between my brother and the defendant; that he left with my brother since Monday, we have not seen him. They showed me his wife and his younger brother. I called the security in charge of Ngbuka. They arrested his wife and his brother identified in Court.

I went to Ogidi Police Station. They called him from morning including his wife. He came around 7pm. We were about going before he came. He went to DPO office directly. The DPO now called all of us in his office. I narrated the story to the DPO that he left with my brother up till now he is not yet back. I told DPO my brother gave him some money. DPO asked him whether it is true. Defendant denied it. I left because it is late. In the morning he was granted bail. I now went to SSS and they arrested him.
That is the end of my story.?

PW1 was cross-examined by Mrs. U.O. Onwuka, Esq. representing the appellant. The witness answered at page 107 lines 22 to 24 and page 108 lines 19 to page 109 lines 1-23 of the printed record as follows:
?I am the brother of the missing person. I travel from Awkuzu to Nando with my brother and the defendant. We have not seen my brother.
The missing person is my junior brother. My junior brother tells me whatever he wants to do. He did not tell me he went to Umueri on the 13th November, 2013 with the defendant.
My brother did not tell me he will go to Nando with the defendant to buy a land. I

cannot remember the exact time we left Nkpor to Awkuzu junction. When we left Awkuzu and in Jude?s car our discussion with defendant was cordial.
I cannot remember the time the defendant dropped us at Igboezunu junction after we have inspected the land. We took commercial vehicle after the defendant dropped. Both of us dropped at Nkpor junction by new parts at the same time.
My brother went to his shop from new parts. I did not remember the exact time the vehicle left dropped us at new parts. When the defendant dropped us at new parts he told us he was going to Anaku.
I know where Anaku is. I cannot estimate the time it will take somebody to go to Anaku from Igboezunu junction. I am in good relationship with my brother. My brother did not tell me that he went back to Umueri with Jude. I don?t know where both of them went. I did not hear my brother pregnanted somebody at Umueri. I did not hear my brother went to the girl?s place on 13th January, 2013. I am saying that it is the defendant who knows the whereabouts of my missing brother.
It was his neighbour that I called told me that he went out with the defendant. Apart

from the time we went to Nando, I did not see my brother in company of the defendant go out.
Both of us left together for home and he thereafter went to his shop. Re-examination by Mrs. Udeorji ? None.?

PW1?s evidence related to what had happened when he was with his late brother and the appellant on 14th January, 2013. That apart from the 13th January, 2013 when the three went to Nando. But PW1 did not see his brother in the company of the appellant from 14th January, 2013. PW1 relied on information from an unnamed neighbour of the appellant who informed him that the appellant had asked the victim to escort him to Umueri after the close of the market. Neither the prosecuting nor defence Counsel asked questions to know the name of this neighbour of the appellant who volunteered this piece of information. But it would appear that the last person to have seen the late Chinwuba Ekwenze with the appellant was this unnamed neighbour of the appellant. However, next to testify was PW2 at page 110 lines 17 to page 111 lines 1-12 of the printed record as follows:
?PW2:- States in Ibo language. My name is Chioke Emoto. I live at

No.1 Maduegbuna close Enekwasumpu Onitsha. I am patent medicine seller at bridge head marker. I know the defendant as well as the missing person. On 14th January, 2013 being on Monday, Chinwuba Ekwenze living in the same flat with me called me on the phone between 6-7pm he escorted the defendant to Umueri and would be back on the same day. After the day?s work I slept off. In the morning of Tuesday being 15th January, 2013 noticed that my neighbour Chinwuba on waking up did not return home. I took my phone and called his number and it rang for a very long time and nobody picked the phone. I now prepared and left for market. When I got to the market in the afternoon, I called the number and it was switched off. His elder brother John Ekwenze called me in the afternoon that same Tuesday and informed me that he has been calling his brother?s number and the line was not going. I told him that Chinwuba his younger brother called me on phone on 14th January, 2013 that he escorted the defendant to Umueri and up till now I have not seen him.?

The witness admitted under cross-examination to have volunteered a statement to the Police on 23rd

January, 2013. PW2 further testified at page 111 lines 16 to page 112 lines 1-8 of the printed record as follows:
?I have shared the flat with missing Chinwuba for about one year by this year. Chinwuba tells me where he goes but not all the places he goes that he tells me. My neighbour does not keep late nights.
On 13th January, 2013, I stayed in doors with him throughout the day and he never went out. He told me he would be going to their village on 14th morning but did not disclose the aim of his going. I did not ask Chinwuba my neighbour whether he is back from the village when he called me. What made me not to call his brother is because the missing person told me the person he went out with, that made me not to call his brother. I know the defendant. The defendant normally comes to our premises to visit the missing person and each time the defendant come, he will call the missing person on the phone, he will go down and meet him, thereafter the defendant goes to him voluntarily because the defendant is his Account Officer because the missing person normally tells me the defendant is his Account Officer. He said it willingly that he is

escorting the defendant to Umueri that he will come back the same day.
Re-examination ? None.?

PW3 spoke on phone with the victim of the crime, the late brother on 14th January, 2013 around 7pm. All efforts to get him answer her call thereafter proved abortive. PW3 informed PW1 of her inability to get in touch with the deceased the next day being 15th January, 2013. PW3 again testified at page 113 lines 21 to page 115 lines 1-14 of the printed record as follows:
?I now told John that Chinwuba told me the he accompany Jude to Umueri. John now told me he has been calling the number of Chinwuba and the response is switched off. The neighbour told me that Chinwuba accompanied the defendant to Umueri. He told me he is looking for somebody that will take him to defendant?s place. That is when started searching for Jude. On Thursday being 17th January, 2013 we met a person who showed us the defendant?s place. John now told me that I should come to Ngbuka so he will direct me. I got to Ngbuka, I called John, John told me I should wait for him at security house, that they have been to defendant?s house but they could

not find him so they arrested his wife. They took the wife of defendant and his younger brother to the security house. John left us there and went and reported the matter at Ogidi Police Station. We were there at the security houses when the Police men arrived. They took the brother and the wife of the defendant to police station, Ogidi. We were at the Police Station the wife of the defendant started calling the defendant on phone, the defendant came to the police late in the evening. At the Police, I made a statement at the Police, and stated what I know about Chinwuba. When Jude came, the Police men told us we should go and come back the next day now that the defendant has come. The matter was reported else where, because when we came back we discovered the next day we discovered the defendant has left because he is not his gun, we were still at the Police station Ogidi when the defendant came around 6pm after the close of his work. It was at that time we knew he went to the SSS. SSS now came and arrested the defendant. The defendant was handed over to the State Awka.
Cross-examination by B.K. Azuchukwu:
I am married but now a widow. I knew that they

will be going to Nando but I called John. John told me they are back from Nando. Then I started calling Chinwuba to discuss with him. I do not know the time but I know it was afternoon.
Cross-examination continued:
My brother told me his customers came and he has been attending to his customers. It was when he called me that he said why he could not call me, he said he has been attending to his customers.
Repeat:- When my brother called me he told me he has been busy when my call came that he has been attending to his customers. I now told him I want both of us to see that was the main reason why I was calling him, my brother now told me he will be accompanying the defendant to Umueri, that we shall see the next day when he called he, he sounded very normal. It is not what they told me but all that my brother told.
Re-examination by G.A. Udorji ? None.?

According to PW4 the deceased and the appellant attended her mate?s traditional wedding on 13th December, 2012 at her village in Nando. The appellant was introduced to her as her late brother?s Account Officer. PW4 gave evidence at page 116 lines 21 to page

118 lines 1-9 of the printed record as follows:
?On the 17th January, 2013 around after 11pm number called me saying they have my brother in their custody for the past 4 days and you did not care to look for him. I did not know what do say that night. I was shocked and the line went off. Immediately I called my senior sister and I told her that I just received a call that they are telling me they have Chinwuba in their custody. My sister told me for the past 4 days she has not seen him she said I shouldn?t worry that they has seen his friend he went out with that Monday evening. I told her why didn?t she inform me. She told me that she believed everything will be fine because they have seen his friend and they don?t want to tell me for me to start panicking since I was a nursing mother then. She told me I should not worry that she will call me the next day. The next day in the morning that same number called me again saying I thought they are playing that it is better for me to go and look for the sum of N5,000,000.00. That their chairman told me my brother is worth more than N5,000,000.00. I told him that I should hear the voice

of my brother first that the money will not be the problem. He now said I am not serious and the line went off. He said I think he can call me and I will keep him waiting on the phone. He said okay I am keeping him waiting because I am tracing his call from where he is calling me from, I said I was not tracing his call but I just want to know where my brother is. He said if I think I am smart he will show me he is smarter than me if I should involve the police, he is going to kill my brother and not just that he will come after me and my family. I told him I am not involving any police that I want to hear the voice of my brother first. I now told him let me hear the voice of my brother, so that I will know if there is anywhere we can get that amount of money. He said okay he was not with my brother as of that day but when he get to where my brother is he will call me so I can talk to him. I said okay and the line went off. I called the number but the was not going through so I told my senior brother and my sisters that I was calling the number since they said I should not worry since they have seen his friend he went out with that they believe everything will

be alright. I made statement to the Police at Awka on the 23rd February, 2013 at State C.I.D. I came down to Court to sign some papers they asked me to sign.?

From the evidence adduced above, it is clear that someone contacted PW4 on the phone to make monetary demands. That failure to honour the demand would result into the killing of Chinwuba Ekwenze. This was on 17th January, 2013 after 11pm. PW4 was feebly cross-examined by B.K. Azuchukwu, Esq. of Counsel. At page 118 lines 11 to page 119 lines 1-14 of the printed record appear the following entries:
?I am a trader dealing on children?s fairly used N8,000.00. I am a tenant in Lagos at the house where I live. I know my brother very well. He sells parts at Ngbuka Nkpor. He is the Boss. The person who called me never gave me a name. I never knew my brother was missing until I was called. I was with my three children when this call was made. The call was made around after 11pm. As at the time the call was made my husband has not returned from work.
I told the police they called me more than once. I said it to the police.
Court:- Statement of PW4 is shown to her.<br< p=””

</br<

Cross-examination:- All that I told the Court is here in my statement to the police.
B.K. Azuchukwu:- I want to tender the statement.
G.I. Udeorji ? No objection.
PW4 to Court:- This is my statement to the police.
Court:- Statement of the PW4 is admitted and marked as Exhibit ?A?. I gave the number to my elder sister that same night. They called me on 17th January, 2013. I made my statement on the 23rd February, 2013. I could not do it because I was nursing a new baby. She never told me she gave the number to the police. It was that night my brother was missing that is 17th night I called my elder sister, she told my sister was missing, she said they have been at the police. At that time I was not. Somebody called me with that number. None of my sibling and elder ones is neither a landlord. Nobody told me John my brother was last seen with my missing brother. I was not told by my sister that John was last seen with Chinwuba. Nobody asked me to say this.
Re-examination by G.I. Udeorji ? None.?

Fred Nwachukwu (PW5) of the State Security Service explained how phone calls were traced to the

appellant and one Nnamdi Osita at page 122 lines 14 to page 125 lines 1-17 of the printed record as follows:
?PW5:- Sworn on Bible and states in English language. My name is Fred Nwachukwu from the State Security Service. I know the defendant. My office received a letter from a Law Firm requesting my office should investigate the disappearance of one Chinwuba a young business man. Based on the request, my office wrote to MTN requesting for the call history of missing young man Chinwuba Ekwenze. MTN replied our letter of request by sending us history of call record as a mobile forensic expert I now commenced my analysis of the young man?s history in order to establish who were his last contact and the point of which he went missing. The facts I gathered and V.D.D. from computer we are able to analyze strongly how the young man went missing. We discovered that his two calls were to Jude Onwuzulike and one Ametor. They were the last time people he spoke with. Thereafter his phone disappeared from network on 14th January, 2013 between from 7pm upwards, his phone could not be traced. On the 15th morning about 11:06 hours his phone appeared on

network bearing the name of Nnamdi Osita. We tried to establish the link between him and Nnamdi Osita from 3 months analysis there is no indication that Chinwuba ever met Nnamdi Osita. We saw where Nnamdi Osita on the 15th January, 2013 was discussing with the defendant with one Okwy and some other contacts, apart from Jude he was discussing with on phone. We now look our time to find out other phones Nnamdi Osita must have used. He used 3 switched over to another that of his wife Ajibor, and to that of the missing young man Chinwuba Ekwenze. At the point we now made our deductions that the defendant Jude Onwuzulike knows about the whereabouts of Chinwuba Ekwenze so we confronted him with the facts before us. We also interviewed Emetor when we asked to give us statement, because they are the two last people involved with Chinwuba?s disappearance. Emeto in his statement told us that Chinwuba called him at about 7pm and told him that he was with Jude and that they were going to Umueri to see the owner of the land he wants to buy. Then we also asked the defendant about the call between him and Chinwuba he denied ever meeting Chinwuba on the same day. And

Emetor also called confirmed that Chinwuba were with him and they had gone to see the land he wants to buy which he intended to pay through a debt of N2,000,000.00. He is purchasing the land with the intention that Jude Onwuzulike will pay for that land because the defendant is owing him N2,000,000.00 that will be due for payment on the 24th January, 2013. So we asked the defendant were you with the missing young man on the 14th evening, he denied and started that he had gone to watch football after which he went to carry half bag of garri at Nnamdi Osita?s house which he claimed was prepared for him by Nnamdi Osita?s wife Ajibor. At that point, he now disclosed his vehicle had accident with a motorcycle we now asked him if he had accidented a repeort and if his vehicle and the motorcycle are in the police custody for it to verify defendant stated he did not ? but he went to Nnamdi Osita?s house to go and carry the garri. And also called his wife?s car to come and pick him home. We now asked him about his relationship with Nnamdi Osita. He said Nnamdi Osita is a farmer resident at Asaba Delta State. We asked him do you know

whether Chinwuba missing person is known to Nnamdi Osita. He stated that he doesn?t know if the missing man is known to Nnamdi Osita. The reason why we asked him this question was because, Nnamdi Osita was using the phone of Chinwuba.
Chinwuba on that day told Emetor that he was going to the defendant. And also the defendant said that same evening he had gone to see Nnamdi Osita for his garri only for Nnamdi Osita to emerge with the missing man?s phone. He started using the phone around 11:06 hours. I told him you are going to call Nnamdi Osita to enable us apprehend Nnamdi Osita. He asked what should he tell Nnamdi, we asked him to tell Nnamdi you need garri since he is a farmer. When the defendant called Nnamdi asked him to tell him the truth where he was because he was telling Nnamdi he was at the Bank because the phone was on speaker we heard Nnamdi telling him that he is aware that he has been arrested that he should tell him what is happening to him now and why is he asking him about garri when he heard he is at Awka. He sounded a note of warning to the defendant that he knows his house and he knows his family in an angry tone. He then

switched off his phone. It was at that point we knew it would be difficult to get Nnamdi Osita in order to enquire from him how he came about the missing man?s phone which he was using. In a recorded statement, we asked Jude are you owing Chinwuba Ekwenze he denied that he is not owing him only for us to discover there was a document showing the defendant was owing the missing young man the sum of N2,000,000.00. At that point, we handed him over to the Police on 30th January, 2013 for further investigation. This is a true copy of the letter we wrote to MTN.?

The request by PW5 for the call data from MTN was admitted and marked Exhibit ?B?. PW5 went further to testify at page 127 lines 1 to page 128 lines 1-5 of the printed record as follows:
?Court:- Forwarding letter in Jude Onwuzulike is admitted in evidence as Exhibit ?B2? subject to ruling at the end of the trial.
PW5: For purpose of understanding what I have to state, every phone its own identity. This is my phone. You can never see a phone with the same identity.
The phone with 07061607124 belongs to Nnamdi Osita. Although his communication he

never had communication with the missing person. On the 12th January, 2013, he switched over his SIM card to his wife?s phone. On the 14th January, 2013 he used his wife?s phone by 10:26am on 15th January, 2013. The blue line raised our curiosity. We saw the SIM Card of the missing man in Nnamdi?s phone at about 11:46am on 15th January, 2013, all the people on the call list on Nnamdi?s phone stated a computer ? based on the facts, we got here now that we came to conclusion that Jude Onwuzulike having agreed he had gone to Nnamdi?s house on the 14th January, 2013 the day Chinwuba disappeared being a close associate of Nnamdi Osita has something to tell us about Nnamdi ? using Chinwuba Ekwenze?s phone and collaborated by the evidence given by Emeto which is also inside the computer. Denial of the defendant that he is not owing the missing man is a fabricated story.
For not going to incident his vehicle or calling the phone to show them his shattered car instead he moved his car to his home to Nteje instead of his boy at Onitsha. He never reported to the police. We concluded he and Nnamdi must have murdered

Chinwuba Ekwenze. We concluded that it could be as a result of the N2,000,000.00 which he is owing which the due date to pay back principal and interest was near, that he is avoiding hence he decided to kill the Chinwuba.
Court:- Case is adjourned to 11th February, 2014 outstanding date for continuation of evidence of PW5

PW5 testified how he tape recorded an interview with the appellant on 28th January, 2013 at page 130 lines 1-21 of the printed record as follows:
?PW5 still on former oath and states in English language. Following a petition from a law firm my office detailed me to write to MTN to obtain call history on the disappearance of the missing person.
Chinwuba to be forwarded to the official E-mail of the service. DSS organ e-yahoo.com MTN now replied the service via electronic means by forwarding the reply to our official E-mail. After downloading the call history, I decided to print copy for my own use ? then I proceeded further to interview the defendant Jude Onwuzulike under a recorded device which I placed on the table while interviewing him on the 28th January, 2013 in order for him not to deny owning

the statement then I cautioned the statement the defendant that the interview I have with you is on tape and he should make sure he state exactly what he told us during the interview in writing while making his statement. Being the head of the team of the investigation team I now assigned one of my subordinates by the name Chinedu Ofomba to take his statement in writing of the defendant. Unfortunately, Chinedu Ofomba would have been to tender the statement but he is currently on course for a special duty at Maiduguri, Borno State hence as the head of the investigation team I came to present both the electronic evidence obtained from the MTN. They recorded conversation between me and the defendant laid the statement that was written by me. The call on the flash was made when we were trying to trap Nnamdi.?

Exhibit ?A? was the statement of PW4. PW5 tendered Exhibit ?B2? for the call data record from MTN. Exhibit ?B? and the flash drive from the computer (Exhibit ?C?). Exhibit ?C1? is a petition addressed to the State Security Service which spurred them to commence investigation of the

disappearance of the victim. PW5 underwent vigorous cross-examination by V.O. Unwuka, Esq. at page 131 lines 13 to page 133 lines 1-4 of the printed record as follows:
?Cross-examination by V.O. Nnwuka:- I am a mobile forensic expert. I am an expert in mobile forensic. I underwent a course in mobile forensic ? my office the State Security Service (SSS) from time to time organizes or conducts an in house training at the service school at Lagos and Abuja as well as sponsor some of its personnel to overseas courses in order to meet up with the challenges of time. I obtained my certificate of the service training school of SSS. As an expert I gave my report on my finding.
Court:- Exhibit ?B2? is shown to the witness.
Cross-examination continued:
I am the head of the team that investigated the case of kidnap. I delegated my subordinate to go to the Bank and they arrested the defendant. As the Head of the team, I cannot be every where. Both technical and forensic staff are under me. The originating locations are there because the syche ID was there and from the syche you can locate the originate of the call and the

location. Defendant never used the nuexling pergine phone.
As long as the investigation is concerned, the MTN investigation is sufficiently conducive. I forward MTN illustration to the police. I paid a cost. It is true the facts are obtained from their statement where I went to MTN to copy them. I stated after doing my own side of the investigation. I witnessed and investigated all. I did not investigate the case of the defendant that on 13th January, 2013 witnessed presentation said I did not investigate. I did not state that my investigation revealed that Nnamdi Osita is from Umueri. All I said is that Nnamdi is a friend to Jude Onwuzulike the defendant resides in Ogwashi Uku and indigene of Anambra State. From 3 months record analysis it indicates Nnamdi Osita is known to Jude but Chinwuba Ekwenze the missing person were not known to Nnamdi Osita from the call history. What led me to it is not sufficient for me to say that the reason that somebody knows another is not sufficient for me to establish he is responsible for the crime. Defendant went to Umueri on that faithful day. According to him he also went to Nnamdi Osita house to collect half bag of

garri so since the missing person was in his company it is obvious that both of them went to Nnamdi Osita?s house at Umueri. Apartly Nnamdi Osita to emerge with the missing person?s phone on 15th January, 2013. It indicates that the defendant will be in the will be picture of what may have happened to the missing person. Even in the circumstance the defendant said his car was involved in an accident. I know about the SSS law. I forwarded the suspect to the police. The police requested for call data record from MTN which I tendered on 6th February, 2014. I cannot be here on my own. The office sent to us. I am surprise they said I am a friend to the missing person?s brother. I am not from Anambra State. The petition addressed to us brought us into the matter.
G.I. Udeorji ? Re-examination ? None.?

Inspector Simeon Madu (PW6) testified how the Department of State Security Service re-arrested the appellant and investigated the case of kidnapping at page 134 lines 24 to page 138 lines 1-4 of the printed record:
?When we studied the call history we found out that on 13th January, 2013, Chinwuba Ekwenze made

calls with his phone number 08068592917 ? this identification of his IMEI ? Chinwuba?s IMEI is 3582 and the last 4 digits was 2090. We studied that of Nnamdi Osita his own phone number he made 07061607124. The first 4 IMEI number are 3582 the last 4 digits of the same IMEI number are 2920. When the defendant made statement he said he visited Nnamdi Osita on 14th January, 2013 the neighbour of Chinwuba. Emeto made statement that Chinwuba Ekwenze called him on phone and told him he was accompanying the defendant to Umueri on 14th January, 2013 between 6:30 and 7pm. We asked the defendant the person who accompanied you to house of Osita has not been seen the Nnamdi Osita you visited is making calls with missing Chinwuba phone. I then asked him where is Chinwuba that he know his where about. Up till now defendant has not show us where Chinwuba is. During investigation, defendant told us Nnamdi is staying at Ibuzor, Delta. We went to the COP Delta State on investigation activities the COP of Police referred us to Ibuzor and Ogwashi Uku Police Station. Based on investigation we discovered Nnamdi is living at Apo Ogwashi Uku in Delta State. The COP

Delta State referred us to Ogwashi Ukwu. DPO gave us more police men we entered a forest where Nnamdi is living at Delta and APO. We could not see Nnamdi so we arrested his wife when the defendant told us her name is Ajibo but her real name is Mrs. Ofeanyi Chukwu Osita. We took her to State CID Awka where she made statement she confirmed that she know the defendant and the defendant came to their house about 8pm. During investigation ? defendant told me he had accident on 14th January, 2013 with his Camry car that a cyclist who was carrying a woman collided with him and damaged his Camry Car along Otuocha Nneyi Umueri Road. I told him to lead us to the accident scene when he took us to that place there was no sign of accident there and my team entered the bush to see if we can discover any shallow grave. We went to Otuocha Police Station and met DPO whether there is any Camry Car with Registration Number TN 321PNU that was involved in a serious motor accident on 14th January, 2013.
They brought their accident record and there was none. We told the defendant to take us to victim to ascertain their state of health but he did not take us to any of

them. We traced his car to Umuanuma village Nteje where he said he packed it ? when we approached his compound, they have dug one pit across gate because we wanted to tow the accident car from the gate but there is no way we would do that before you enter his compound you have to enter the pit and climb up. When we saw the car there were no signs of any accident. When we asked him how did he manage to drive the car inside his compound he could not give us any answer. It was the same that conveyed Chinwuba to Umueri and this is Chinwuba we have not seen up till date. During investigation we discovered that he borrowed N2,000,000.00 from Chinwuba initially in his first statement he denied he did not borrow any N2,000,000.00 from Chinwuba and my team in company of John Ekwenze went to Chinwuba?s house and checked documents in connection with N2,000,000.00 loan we could not see. We also went to Chinwuba?s shop at Ngbuka Nkpor his seller brother broke his shop and we recovered the documents that showed Chinwuba gave him N2,000,000.00. We took the defendant to his house and searched his house with search warrant we recovered 3 documents which he

pinned together out of 3 documents, one for him, one for late Chinwuba and one for late Obinna Nwakwoka which he claimed was his witness when he was re-paying Chinwuba the money. We went into Ngbuka Nkpor in search of Obinna they told us there is no name like Obinna Nwakwoka at Ngbuka. We asked the defendant when Chinwuba was giving you the money you have no witness but when you want to repay the money, you now have a witness ? why? He did not answer the question. He did not admit he owed Chinwuba any money until I showed him the document I recovered from Chinwuba?s shop then he agreed. The documents pinned together in his house were excised in 2012 but he neither gave Chinwuba one copy or his witness. On that 14th January, 2013 the defendant carried Chinwuba to Nando where they inspect the land Chinwuba wants to buy. It was on that same 14th January, 2013 he conveyed Chinwuba to Nando that Chinwuba never came back. In conclusion after my investigation, I put up investigation report and passed the report to my superior Deputy Commissioner of Police in charge of the State CID, Awka for vetting. After vetting he signed it and gave it to Commissioner

of Police, Awka who gave the final vetting before the defendant was charged to Court. I recommend the defendant should be charge for kidnapping. The defendant was sent to office with a forwarding letter. I recorded the statement of the defendant I will identify all the documents mentioned in my evidence in chief.
Udeorji: I seek to tender these documents.
V.O. Onwuka:- Says we are not objecting to documents on the (1) loan agreement (2) forwarding letter from SSS Awka State CID (3) Mrs. Ifeanyi Osita (4) statement Obinna Ilodigwe (5) statement of the defendant made on 2nd and 9th February, 2013 and 30th January, 2013.
Court:- Loan agreement is admitted as Exhibit ?D? (2) forwarding letter to SSS from State CID ?D1? (3) Statement of Mrs. Ifeanyi Osita is ?D2? (4) Statement by Obinna Ilodigwe Exhibit ?D3? (5) Statement of the defendant made respectively on the 30th January, 2nd February, and 9th February, 2013 are admitted as Exhibits ?F-F2?.
V.O. Onwuka:- We object to tendering of the call data because the witness is not the maker ? Section 84(1)-(4) (1) of the Evidence Act

provided conditions for tendering of call data. MTN did not attach any certificate to the document.
Udeorji:- The witness said the call data was obtained in the course of his investigation.
Court:- MTN call data is admitted in evidence as Exhibit ?F3? subject to ruling of the cross-examination of the trial.
Court:- Case is adjourned to 18th March, 2014 for cross-examination of PW6.?

PW6 was cross examined on 4th April, 2014 by the defence Counsel from whom the following evidence was elicited at page 140 lines 1 to page 142 lines 1-3 of the printed record as follows:
?The wife of Nnamdi Osita and the defendant. Two of them made statements. The defendant?s statement was recorded by me. We do not torture anybody or induce anybody to make a statement at State CID Awka. When Ifeanyi Ajibor was arrested at Delta State and brought to State CID Awka. But I cannot remember the date but it was in the year 2013 but I cannot remember the actual month and year. If I see the statement of Ifeanyi Ajibor I can remember. This is the statement of Ifeanyi Ajibor. Ifeanyi Ajibor told me her husband was not at home. Defendant

visited Nnamdi Osita?s house at Umueri. Ifeanyi Osita told me the defendant visited us at Umueri and masber. I do not know the defendant and his wife before this case came into existence. My Lord, I asked the defendant about N2,000,000.00 Chinwuba Ekwenze lend to him, he said no that he does not know Chinwuba and does not know what am saying. He presented an agreement he made with Chinwuba. On that note he agreed Chinwuba gave him N2,000,000.00 when I searched his house I recovered an agreement where he said he has paid the two million Naira. I conducted a search in the defendant?s house. I gave evidence of N2,000,000.00 because defendant did not complain on N1,5,000,000.00. The Agreement was prepared when Chinwuba was alive. Complainant did not complain about N1,5,000,000.00. Apart from the loan agreement, I did not recover offensive weapons or firearms from the defendant. Chinwuba missed on the 14th January, 2013. I cannot remember the date I went to defendant?s house at Nteje. I cannot remember any date. It is true one defendant witness Emeto by name that the missing person told him he will accompany the defendant to Umueri and he was coming

that same day.
Vincent Emeto is sharing a flat with missing Chinwuba Ekwenze. Between 6:30pm of the 14th January, 2013 Chinwuba called Vincent Emeto and informed him he was accompanying the defendant to Umueri. Nobody forced Emeto to disclose information. Chinwuba was accompanying the defendant. I told the Court that when Assistant COP of Police had already done the call history of the phone number of Chinwuba Ekwenze, Nnamdi Osita and Jude Onwuzulike he wrote to department of SSS to provide him with the call history. I stated the call date in the investigation report. We extract the summary of the data because we cannot take everything in the call data. I cannot master the true way i.e. from Aguleri to Onitsha and to Nteje because I am new in Anambra State. Somebody took me to defendant house. The car with which he had accident is a Camry Car but I cannot tell whether is old or new. I was told by PW1 that on that same 14th January, 2013 the defendant conveyed him and Chinwuba Ekwenze to his own village Nando Ubaru Isioye Nando to inspect a land. Missing Chinwuba Ekwenze wanted to buy it that same day in the evening between 6:30 and 7pm that Chinwuba

accompanied the defendant to Umueri. PW1 told me that defendant conveyed them to Ubaru Isioye Nando. PW1 told the missing Chinwuba and defendant were together. Defendant conveyed Chinwuba, his elder brother John between 10am/11am to Isioye Nando and brought them back to Igbozunu junction. Apart from the visit of PW1, defendant and the missing Chinwuba Ekwenze to Ubaru Isioye Nando and the defendant dropping them at Igboezulu ? Chinwuba Ekwenze and his elder brother joined a public transport to Awkuzu junction while defendant proceeded to Anaku. I witnessed some of the stories e.g. the scene of the accident where I did not see any sign of accident. I went to APO Ugwashi Ukwu in Delta State. When we went to the forest where they are living I could not see the Nnamdi Osita. It was only the wife we saw to come and tell us about her husband.
Re-examination ? None.?

Sections 6-7 of the Evidence Act, 2011 provides as follows:
?6(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct, whether previous or subsequent to any proceeding:-
(a) Of

any part to any proceeding, or an agent to such party, in reference to such suit or proceeding or in reference to any fact in issue in it or a fact relevant to it; and
(b) Of any person an offence against whom is the subject of any proceeding, is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.
(3) The word ?conduct? in this section does not include statements, unless those statements accompany and explain acts other than statements, but this provision shall not affect the relevance of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.
7. Facts:
(a) Necessary to explain or introduce a fact in issue or relevant fact;
(b) Which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) Which establish the identity of anything or person whose identity is relevant;
(d) Which fix the time or place at which any fact in issue or relevant fact happened; or
(e) Which show the relation of

parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.?

From the evidence adduced by the prosecution witnesses, it is my candid opinion that the prosecution has shown the probable motive the appellant had in mind to kidnap and murder Chinwuba Ekwenze. The motive was that the deceased made a demand on the appellant to repay him the N2m loan to enable him purchase land he was negotiating to buy in the village at Awkwuzu junction. The appellant reasoned that by kidnapping and killing Chinwuba Ekwenze, the debt would not be repaid. The onus shifted to the appellant to discredit the evidence of the prosecution witnesses. The appellant testified as DW1 without supportive evidence from any witness. The appellant admitted being called on phone by the deceased on Sunday, 13th January, 2013 at about 12pm. The deceased had requested to see him in order to escort him to where he had impregnated a young lady at Umueri which request he initially turned down pretending to want to watch Arsenal?s football game that day. As the conversation proceeded the lady came and talked with the deceased. The deceased

came back to inform him that he had given her some money. The appellant testified at page 144 lines 6 to page 146 lines 1 to 20 of the printed record as follows:
?At about 3pm in the afternoon for onward movement to Umueri, I asked him to wait for me at Ngbuka gate. Thereafter I went there to pick him for onward movement to Umuleri. As we were going to Umuleri, I determined to take him to Umuleri but I was discouraged by the insistent calls that he was receiving which I suspected were from the girl I now called Chinwuba, I will not continue with the journey that I meant to go and watch Arsenal vs. Man City Match. He begged me to stop him at the closest bus stop which he said i.e. park one Umuleri I took him and stopped him at park one Umuleri and went down to Nteje to watch the match at view centre Nteje. After about 1 hour 30 minutes, Chinwuba came back from Umuleri and I met me in view Centre where I was watching the match. He came back at the tail end of the match. After the match two of us went back to Nkpor that same evening. I stopped him at Ngbuka junction he went to his house and I went to my own house. On 14th January, 2013 being a Monday, he

called me on phone when I was in my marketing meeting with my other colleagues I told him I am in a meeting that I will get back to him after the meeting. After the meeting I went on my marketing meetings. I left my office about 9am as a marketer. I have prospect maintain Nig. Ltd. a businessman based in Lagos but he is a native of Ayamelum. This prospect was a referral from one of my customers? Shamals Nig. Ltd. I have appointment with him on that 14th 2:30pm at Ayamelum. I left my office to Ayamelum on getting to Nteje Police Station Road Safety Officers on their checking point stopped me, it?s my car is being checked by Road Safety Officers. Chinwuba called me and told me that he saw me at the Road Safety Checking Point where my car is being checked. He told me he is inside the public transport. He asked me where I am going. I told him I am going to Ayamelum. He told me that he is going to Nando. He asked me to wait for him at Awkuzu junction so that he can join me since Nando was on the direction of Ayamelum. After the checking, I directed down to Awkuzu junction and wait for Chinwuba and one man came to my car the man which I later know he is

the elder brother to Chinwuba introduced the man as John Ekwenze. Chinwuba introduced me to his brother as his Accountant Officer we took off from Awkuzu junction three of us. That is Chinwuba Ekwenze, John Ekwenze and myself. On getting to Igboezulu Nando Road, Chinwuba told me to stop him that they are taking that Igboezulu Nando Road. I parked by the side of the road to drop them off. As I parked the elder brother John Ekwenze said they will not see any means to take them to Nando. I suggested to him let me take them to Aguleri junction where they can get Okada easily to Nando. His elder brother asked Chinwuba to take him to Nando as Nando is very close there Chinwuba begged to take them to Nando that they are only going to inspect the land after seeing it we will come back as they would not waste time. After much plea, I yielded to take them to the place after considering the time for my appointment at Ayamelum. I took them to Nando after seeing the land they want to buy two of them joined me in my car. I took two of them from Nando to Igboezulu Aguleri Nando Road. I dropped Chinwuba and his elder brother John Ekwenze whom I believe is in Court today off. I

dropped them off at Igboezulu Aguleri Nando Road ? about 10:30am and I went my way. After my business call at Ayamelum with Maintain Nig. Ltd. and other business calls, I made for the day. I went back to my office. I was in my office, my customer Ajibo Mrs. Ifeanyi Osita called me on phone that the garri which I gave him money to prepare for my family and I is ready that we should come and carry it as they will be travelling back to Delta State the next day. After the close of business for the day, I drove down to Ajibor?s house to carry my garri at 4 minutes after 6:pm. After carrying my garri on my way back to Nkpor just after Aguleri I had a sound at the back side of my car. I was looking for a safe place to park because it was already night but the only people I met on the road were custom men that were at Nneyi Umuleri. I now parked ahead of them to check my tyre. I observed the tyre is going down but I can manage it to my house. On getting to car to start it, I heard a sound on top of bonnet behold it was an okada man carrying a woman with torchlight on his okada. He hit my car and broke my windscreen together with the side light. I came down from

the car again and settle with the okada man and settled with him. I called my wife to send my boy with her car that I had an accident on the road. I managed the car to Nteje at my father?s compound where I parked it. I joined my boy in my wife?s car and I left for my house at No.22 Jacob Osuada Street, Nkpor. This is all I know when I dropped Chinwuba and his brother John at Igboezulu Road. I drove to Ayamelum.?

The evidence from the appellant is very clear that his last contact with the deceased and PW1 was on 13th January, 2013 about 10:30am when he dropped them off at Igboezulu Aguleri Nando Road. But the appellant did not deny the detailed evidence of PW5 and PW6 which primarily concerned the electronic generated evidence from MTN involving his conversation with the deceased from 14th January, 2013 to 17th January, 2013 around 11pm. G.I. Udeorji, Esq. cross-examined the appellant and elicited the following answers at page 146 lines 22 to page 147 lines 1-24 of the record as follows:
?I am 35 years. I joined the bank in 2007 about 29 years. I am a staff of U.B.A. Bank. I am a full employed staff of the U.B.A. It is true I

testified. I know Chinwuba Ekwenze. My relationship between Chinwuba and myself is that I am his Account Officer. I opened Account for Chinwuba. At times I may open one, I may not open throughout the week. I have the same relationship I had with Chinwuba with all my customers. I do not know whereabout Chinwuba except that I saw last when I dropped him with his elder brother John. After dropping them I had a contact with Chinwuba. He called me when I was in my office to come and see him to show appreciation for the lift I gave them I told him no that I am grateful. He called me about 4.30am because I was in the office when he called me. On 13th January, 2013 which is a Sunday he begged me to take him to a family where he impregnated a girl. I picked him at Ngbuka junction. I declined going with him to the girl?s house. I cannot remember how many statements I made to the police. Chinwuba met at Avenue-Agulu Avenue bisect Ngbuka junction. I am a witness of the truth. I went out with Chinwuba. Chinwuba begged me to take him to lady?s house. I now say I went out with Chinwuba Ekwenze on 13th January, 2013 being a Sunday. It is true in my statement to

the police I stated to the police that Chinwuba Ekwenze gave the unknown girl money. I cannot remember the day I made this statement. I state that Chinwuba saw me along Nteje road being checked by police. It is about 5 minutes drive from FRSC. Nteje to Awkuzu junction Chinwuba drove pass me in a public transport. Chinwuba was in public bus and I was in my own car because the public bus needed to drop others hence I waited for him at Awkuzu junction. Chinwuba and his elder brother begged me to take them to Nando. I have never taken the victim to the village. I was called by Ajibo to come and take my garri. I cannot remember everything I said in my statement. Nnamdi Osita is a husband to Ifeanyi Osita. I now say I went to Nnamdi Osita?s house just once. I got to Nnamdi?s house around after 8:30pm on the 14th January. I passed Nnamdi?s house so I did go to his house the 2nd time.?

The cross-examination of the appellant continued on 10th April, 2014 at page 148 lines 15 to page 151 lines 1-11 of the printed record as follows:
?My car was involved in accident after the custom checking point Nneyi Umuleri junction at night

time about 9pm. After the accident I called my wife so I decided to park the car in a safety place so I decided to go to any village to park it. My boy met me on the way to Nteje. My boy was coming from Nkpor. My boy came through Awkuzu junction. I informed Ajibor who is my customer whom I knew. I know Nnamdi Osita as Ajibor?s husband. Ajibor is my customer whom I have business with. I met only Ajibor at home. I am a witness of the truth. What I stated in my statement was that I went to Ajibor to carry my garri I did not meet Nnamdi Osita.
Court:- Case is hereby stood down.
Sgd. G.C. Anulude, Judge, 10/4/2014.
Defendant in Court. G.I. Udorji.
Chief State Counsel with O.F. Nnorom Senior State Counsel for the State.
B.K. Azuchukwu for the defendant.
Court:- Witness identified the statement of 28th January, 2013 as his statement.
But I was transferred to Police Station on 30th January, 2013.
Cross-examination:- I made a statement at SSS on 28th January, 2014 and not at Police Station. I did not go back to Ajibor?s house after the accident. I never went back (Ajibor?s house) I carried my garri. I did

not report to any police station. The okada man knelt down and begged me with tears in his eyes nobody was injured. There is no bad in my car. I did not go out with Chinwuba on 14th January, 2013. I only dropped Chinwuba with his elder brother John Ekwenze who is here in Court. I have never heard Chinwuba mention Nnamdi Osita?s name to my hearing. I don?t knew how Chinwuba?s phone got to Nnamdi Osita?s possession. I only went to carry my garri (Ajibor Ifeanyi Osita went alone). I did not go with anybody. I don?t know that Nnamdi Osita used Chinwuba?s phone to call me I have talked with him before except the wife. I refer to call data I only know Nnamdi as Ajibor?s husband because Ajibor is my customer. Chinwuba runs away bank charges he opened a current account so he pulled all his money and met me for a fixed deposit for 60 days which I did. When the fixed deposition dropped Chinwuba was charged for pay which he resulted in deduction of interest accrued to his account so the money dropped into his current account again. When he came to withdraw the N1,000,000.00 into his account. When he withdrew the N1,000,000.00 COT

of N5,000.00 was charged. Chinwuba now decided to take his money to another bank. As a marketer that has a target for the month now negotiated with him. He fixed the money back and said I will pay the charges. You asked me question of other things I did with Chinwuba. I am not owing Chinwuba. I made an agreement with Chinwuba. When Chinwuba stopped keeping the fixed deposit on his own we now entered into agreement that I am the one holding him money whenever the money drops I should pay him the exact interest no reduction. We started N1,5,000,000.00 at 60 days for N37,500. At the expiration of that money Chinwuba collected N1.500 million together with interest of N37,500 we then nullified the agreement for N1.5,000,000. In January, 2011 I was moved to another branch I collected another money from Chinwuba which is N2,000,000.00 with an agreement when money dropped he came with Obinna and two of them left with the money. We signed as Obinna signed as a witness to Chinwuba. Hence I told the police I am owing Chinwuba. All I have said are in my statement. Police took me to my house and the bank they checked my system and went with the Agreement paper showing the

last N2,000,000.00. Nobody witnessed the agreement. Nobody asked me to show them. Nwabuaka instead he is a friend of Chinwuba two of them opened joint account. All the agreements were found in my possession. The police took to my house in ending of February because I have been in police custody since January, 2013. I was transferred to State CID. End of February, one Monday morning, issue of agreement came up. We decided we should go for a search my house showing that I am no longer owing Chinwuba. They took the agreement and took me back to State CID. They brought the agreement with Chinwuba but they did not bring that of the payment.
Chinwuba took his own agreement, Obinna also took his own agreement and this was on 27th July, 2012. The only thing was the messenger who copied the agreement erroneously made more copies so I had more in my possession as it was done in my office. I paid back the N2,000,000.00 in the presence of Obinna Nwabuaku who is a friend to Chinwuba and they runs joint account.
Chinwuba collected his N2,000,000.00 from me. I got the money from my office from the fixed deposit that matured ? he said he cannot pay COT N5 per

mill while they have account where they can charge N1.00 per mill. The police came and went through my computer. I did not tell the police that Chinwuba and Obinna have a joint account but not with me but with UBA. Police went through the system, checked Chinwuba and Ifeanyi?s account. They now noticed that the two Accounts were dormant, inactive respectively. I paid Chinwuba Ekwenze with agreement his money given with a witness. I am a witness of the truth.
Re-examination by B.K. Azuchukwu ?None.
B.K. Azuchukwu:- Says this is the case for the defence.?

The evidence of the prosecution is that their search could not, and has not till date, produced Obinna Nwabuaku in his village as they were informed he is none-existent. But the appellant could have called him to testify that he had witnessed him repaying the N2m debt the prosecution claimed he owned the deceased. That was not to be. At the close of the evidence for the prosecution and the defence learned Counsel submitted written addresses. The learned trial Judge evaluated the evidence of PW1 to PW6 and the exhibits tendered in the Court before arriving at his decision. The

learned trial Judge took particular note of the evidence of PW5 and PW6 holding at page 181 lines 14 to page 186 lines 1-6 of the printed record as follows:
?It is pertinent to observe that PW5, a staff of State Security Service testified on what he saw and did base on the petition addressed to their office on disappearance of Chinwuba Ekwenze.
It is clear crystal that his evidence as mobile forensic expert on the last caller of the missing young man from the data is very overwhelming. It is his evidence that from the use of the call data ? Exhibit ?C? or ?F3? and the use of computer he discovered that the last callers of the missing young man were the defendant and the PW2 his flat mate. I have carefully examined Exhibit ?F3? the call data and find that the evidence of the PW5 is very consistent with his analysis on the call data and the electronic evidence.
I find as a fact that the call data Exhibit ?F?, confirmed the missing young man phoned the PW2 his flat mate. The evidence of the defendant being indebted to Chinwuba to the tune of N2,000,000.00, a loan which he was supposed to

have paid on the 24th January, 2013 to enable the missing man purchase plots of land he inspected in the village is substantiated by the loan agreement tendered as Exhibit ?D?.
It is an established evidence that the defendant is accounting officer of Chinwuba. It is pertinent to observe that the PW5 in his evidence of 6th December, 2013 confirmed defendant went to Umueri on the 14th January, 2013. The defendant later confessed going to Umueri but to the house of Nnamdi Osita. I accept the evidence of the prosecution that defendant who earlier claimed he was not familiar with Nnamdi Osita, instead he is familiar with his wife, Mrs. Ajibor from whom he bought half bag of garri on the 14th January, 2013 is not a truthful witness. I accept the evidence of PW5, that the electronic device played before the parties in the open Court linked the defendant with Nnamdi Osita. I further accept as credible evidence that the Nnamdi Osita who never met the missing young man started using the phone of the missing young man. A further careful examination of the MTN call data Exhibit ?F3? is conclusive that defendant was in constant touch with

Nnamdi Osita who took over possession of the victim?s phone. The evidence of PW6, the investigating I.P.O. corroborated the evidence of PW5 on the content of the call data. The witness in the course of investigation obtained the phone number of the missing Chinwuba as 080685921917.
PW6 stated the identification No. IMEI of Chinwuba?s number begun with 3582 while the last four digits is 2920. He further stated that from a careful study of the call data, it was discovered that Nnamdi Osita?s phone No. is 07061607124.
A perusal of the evidence of PW6, the investigating police officer and a careful examination of Exhibit ?F3? the MTN call data of Chinwuba the victim, clearly shows that Osita Nnamdi became in possession of missing Chinwuba?s phone.
It is the evidence of the prosecution that the series number IMEI of every phone differs. No two phones can have the same number/IMEI. It is my finding that the calls made by Nnamdi Osita after Chinwuba was unlawfully imprisoned had Chinwuba?s IMEI No.3582 and the last four digits 2920. Exhibit ?F3? depicts that the said Nnamdi became in possession of

the missing young boy?s phone from 15th January, 2013 at 11:46 hour. Exhibit ?F3? reveals Nnamdi Osita made calls to the defendant with the missing Chinwuba?s phone on the 16th January, 2013, on three consecutive times on the same day.
I wish to observe that the prosecution made a heavy weather about the alleged accident the defendant did not incident a report. I consider this issue as a non issue because it not a rule anybody who had accident must report to the police. I find that this is not relevant to the charge before me. It is note worthy that the defendant in Exhibit ?B1? denied owing the missing Chinwuba any loan. It was based on the vehement denial the loan document was recovered when the police conducted a search at missing Chinwuba?s store at Ngbuka.
Sequel to issue No.2 formulated by the principal learned Counsel and reply by the learned Counsel for the defendant on whether there existed a motive. On issue of motive of intention, I hold that the law establishing the offence of kidnap contrary to Section 315(1)(b) of the Criminal Code, Anambra State (Amendment) Law, 2009 laid down the ingredients

of the offence of which I am satisfied by the abundance evidence establishing that the prosecution has proved beyond reasonable doubt the ingredients of the offence of kidnapping.
The evidence of the defendant is inconsistent with his statements to the police as in Exhibits ?B1?, ?F-F2?. In the same vein there are material contradictions in his extra-judicial statements to the police in Exhibits ?B1?, ?F-F2?. I hold that his evidence is unreliable and worthless. I watched the demeanour of the defendant who testified in this case. My view of the defendant while in the witness box is that he is an untruthful witness.
Finally, I hold that the prosecution has by its abundant evidence established beyond reasonable doubt that Jude Onwuzulike on the 14th day of January, 2013 at Umueri, Anambra East Local Government Area, Anambra State, in the Anambra Judicial Division unlawfully imprisoned Chinwuba Ekwenze within Anambra State in such a manner as to prevent him from applying to a Court for his release or disclosing to any other person the place where he is imprisoned or in such a manner as to prevent any

person entitled to have access to him from discovering the place where he is imprisoned, contrary to Section 315(1)(b) of the Criminal Code.
I find the defendant guilty as charged and he is convicted accordingly.
ALLOCUTUS:
V.O. Onwuka (Mrs.):- Pleads for leniency. Defendant is first offender and young man of 34 years and a bread winner of the family.
SENTENCE:
The sentence upon you Jude Onwuzulike is life imprisonment without option of fine.
Defendant is reminded of his right to appeal.?

I have set out in detail the evidence of the prosecution witnesses and the reasoning of the learned trial Judge. In a contested case of this nature, it is needful for the oral evidence to be supported by the documentary exhibits to assess the credibility of the evidence upon which the conviction is founded. See Fashanu vs. Adekoya (1974) 1 All NLR 32 where Coker, JSC held at page 37 to 38 as follows:
?We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly

open to a Court of appeal. The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a Tribunal of trial and a Court of appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.
The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the Court in ascertaining the truth in those circumstances is all but easy and the test of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of

the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.?
Similar views were held in Oscard Reynard vs. William Allan (1934) 2 WACA 52 at page 53 per Deane, C.J., of the Gold Coast Colony as follows:
?At the outset, it may be noted that this is a case in which the trial Judge took the place of jury. It has been pressed upon the Court that he heard the witnesses, saw them in the witness box, and was thus in a better position to weigh their evidence than this Court. That is perfectly true, and did the decision arrived at by the learned Judge depend solely on the view of the credibility of the witnesses taken by him this Court should be very slow to interfere.
In the case of The Glannibanta L.R. 1 Prob. Div. 283, Baggaley, J., after referring to the great weight due to the decision of a Judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements, goes on to say ?But the parties to the cause

are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.?
And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as ?a mass of documentary evidence? there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strong on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in

addition the difficulties raised by the learned Judge against accepting plaintiff?s story are capable of a reasonable solution, as they seem to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.?
Where the trial is conducted by Judges or Magistrates who are professionals in their field of specialization, there is the presumption that the trial was conducted within the ambit of the law, and it is for the appellant to demonstrate to the Court of Appeal that the Court below did not advert to elementary points of law regarding the proof of the essential elements needed to establish the charge upon which the appellant was tried, convicted and sentenced. See Bello vs. Inspector-General of Police (1956) 1 NSCC 42 per Verity, Ag. F.J., at page 43 to wit:
?The question of Law raised by this appeal is as to whether the learned Chief Justice on the hearing of the appeal to the High Court from the judgment of the Magistrate ?erred in Law in holding that the learned Magistrate directed himself with regard to the onus of proof in criminal

cases.?
The Chief Justice in the course of his judgment referred to the cases of R. vs. Lawrence (1) and Woolmington?s Case (2) and proceeded ?These were jury cases and there is nothing on the face of his judgment that the learned Magistrate had not this golden rule in mind or that he for a moment put the onus on the appellant.?
Counsel for the appellant submitted that it was not enough for there to be nothing on the face of the judgment to show that the Magistrate had not the rule in mind but that there should be something to show that he had.
We think that the learned Chief Justice correctly stated the approach to the question. In the case of trials before a judge or professionally qualified Magistrate it is to be assumed that he has in mind this elementary principle, though it is of course open to an appellant to show, if he can, from the terms of the judgment that the Magistrate either has not the rule in mind or departed from it.
Counsel for the appellant sought to do this but in our view failed to do so. The only ground of appeal on a question of Law having failed and as permission was not given for any

ground to be argued on matters of fact, we dismissed the appeal against the conviction.?
This appeal has turned on question of facts, oral and documentary evidence. It was within the province of the learned trial Judge to evaluate the parol and documentary evidence to determine whether to believe the prosecution witnesses and reject the evidence of the appellant, or to prefer the appellant?s evidence but to reject the evidence marshalled by the prosecution in order to convict or discharge and acquit the appellant. The approach of the Court of Appeal in matters of this nature was set down by Fatayi-Williams, C.J.N in Barau vs. Board of Customs & Excise (1982) 2 NCR 1 at page 21 to 23 as follows:
?In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to

assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent?s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.
In Akinloye vs. Eyiyola (2) this Court held (1968) NMLR at 95) that:-
?Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.?
Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
?A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR

224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial.? [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.
In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):
?The ascription of probative values to evidence is a matter

primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.
That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ?performance? on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ?dealing only with the

cold sullen print of the records before them? decided to set aside the Chief Judge?s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.?
Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.
In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as

my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.?
To interfere with the findings of fact made by the learned trial Judge in this case, the appellant has the onus of showing how and why they are either perverse or unsound. The Court of Appeal will then examine the grounds and look at the reasons that led to the conclusions and inferences drawn from such conclusions which must be founded on the oral and documentary established by the prosecution and defence witnesses. See Q. vs. Isa (1961) 1 All NLR (Pt. 4) 698 at pages 701 to 702.

The cross-examination of the prosecution witnesses by the defence Counsel was very feeble. I use the word ?feeble? to show that it

was ?1. Extremely weak? 2. Not very good or effective.? See Longman Dictionary of Contemporary English, 2007 Edition, Page 580. The cross-examination did not discredit the evidence of the prosecution?s witnesses on vital ingredients that were necessary to prove the charge. Section 215(1) and (2) of the Evidence Act, 2011 provides as follows:
?(1) Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then if the party called him so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.?
While the examination-in-chief of the prosecution witnesses related to relevant facts to establish the offence with which the appellant was tried and convicted. None of the defence Counsel directed their cross-examination of the witnesses to impeach or discredit the parol or documentary evidence of the prosecution witnesses. Sections 222(2) and 223 of the Evidence Act, 2011 reads:
?222(1) A witness may be asked,

whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitled the party who called the witness to give secondary evidence of it.
(2) A witness may give oral evidence of statements made by other persons about the content of a document if such statements are in themselves relevant facts.
223. When a witness is cross-examine, he may in addition to the question referred to in proceeding sections of this Part, be asked any question which tend to:-
(a) Test his accuracy, veracity or credibility; or
(b) Discover who he is and what is his position in life; or
(c) Shake his credit, by injuring his character:
Provided that a person charged with a criminal offence and witness may be cross-examined to the effect, and under the circumstance described in

Paragraph (c) of the provision to Section 180 of this Act.?
The purpose and power of cross-examination is demonstrated in the case of Mechanical and General Inventions Co. Ltd. & Anor. vs. Austin & The Austin Motors & Co. Ltd. (1935) 1 All E.R. Rep. 22 where Lord Sankey, Lord Chancellor held at pages 27 to 28 as follows:
?I cannot part from this case without referring to the remarks made in the Court of Appeal upon the method in which it was conducted in the Court of first instance. The learned Master of Rolls said:
?There remains one feature of this case upon which, in association with my colleagues, I desire to make serious comment ? that is the cross-examination to which the leading actors on either side, Mr. Lehwess and Sir Herbert Austin, were subjected. Measured by the shorthand note, it appears that Mr. Lehwess?s examination occupied eighty pages; his cross-examination occupied 265. The examination of Sir Herbert Austin occupied thirty-nine pages and his cross-examination 148 pages. There is a tedious iteration in some of the questions asked, and prolonged emphasis is laid on some matters, trivial

in relation to the main issues. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of Counsel in the confidence that it will be used with discretion, and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions, and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skillful, yet powerful, cross-examination.?
With that censure I agree, except that I cannot think it can be justly applied to the Counsel who appeared on behalf of the plaintiffs or to any of the Counsel who appeared at the Bar of your Lordships? House. It is right to make due allowance for the irritation caused by the strain and stress of a long and complicated case, but a protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time.

Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and the Counsel who present it to the Court are taking part in the great task of doing justice between man and man.?
The defence could have adduced evidence to impeach the credibility of the prosecution witnesses? oral evidence as each testified in the witness box but that was not the case in the Court below. In Nwobodo vs. Onoh (1984) 1 SC 1 at pages 98-100. The appellant was not led in evidence by the defence Counsel to discredit either the parol or the electronically generated evidence from MTN the prosecution heavily relied upon in the testimonies of PW5 and PW6 to secure conviction. The prosecution established a solid case like the Rock of Gilbratar against the appellant. In Modupe vs. The State (1988) 9 SCNJ 1 the Supreme Court held at pages 4-5 per Oputa, JSC as

follows:
?Normally a trial Court that had the opportunity of seeing the witnesses, hearing them and watching their demeanour enjoys the special privilege of believing or disbelieving their evidence. But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. To reject the positive assertion by the appellant that he was born on the 3rd of November, 1967 without any contrary evidence at all ? either in cross-examination or in rebuttal ?seems to be much more than a trial Court is allowed to do. To base such a rejection on the subjective estimation of the trial Judge looks quite arbitrary, nay dangerous. It looks as though the trial Judge converted himself into a witness, gave evidence of the age of the appellant, and then preferred his own evidence of age to that of the appellant. Put as bluntly as this, one can then appreciate the danger involved in a

trial Judge preferring his own estimation, which is not evidence, and which was not based on any evidence, to a positive assertion which has not in the least been contradicted or controverted. The learned Director of Public Prosecutions at a stage conceded ?that there was no evidence contradicting the appellant?s evidence on oath?. In his judgment, the learned trial Judge rightly observed that ?no doubt evidence of their ages is very material?. That is correct. But evidence of the age of the appellant is a very different thing form speculation as to his age. If the learned trial Judge was in any doubt as to age, when as in this case evidence of the proper age is material, he was obliged and obligated by the provisions of Section 208 of the Criminal Procedure Act not to estimate in vacuo the age of the appellant but to ?make due enquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time or at the time to which the inquiry may be adjourned If the trial Judge felt that the appellant put his age rather low, he was at liberty to adjourn the case and call a

medical witness to testify to the age of the appellant as was done in Oladimeji (E.A.) vs. R. (1964) 1 All NLR 131. Then he will be comparing the evidence of the appellant as to his age with the evidence of the doctor. He will be perfectly within his right to do this. But he is not permitted to reject positive evidence without any superior and/or contradicting and more probable evidence. If there was evidence from a doctor or any other person in a position to give such evidence, like the parents of the appellant, then the learned trial Judge could pick and choose but not otherwise.
The statement of the appellant to the Police was tendered as Exhibit ?B?. In Exhibit ?B? at p.152, the age of the appellant was given as 20 years. Exhibit ?B? was made on 21st December, 1983, a day after the alleged murder. But Exhibit ?B? is not a proof of age of the appellant. It suffers from a radical defect as the portion giving the age of the appellant as 20 years was written probably by the recording Police Officer before the words of caution. That entry of the appellant?s age as 20 years is not therefore part of the

statement of the appellant. And it would have been wrong of the learned trial Judge to have used it to contradict the appellant?s direct, positive and uncontradicted oral evidence as to his age. In any event, the trial Court did not and rightly in my view, rely on the age shown on Exhibit ?B?. The learned trial Judge merely relied on his ?own estimation? of the age of the appellant. To estimate is merely to form an opinion and opinion evidence can only be considered if it amounts to expert opinion. Otherwise the mere opinion of the learned trial Judge cannot over-ride the positive evidence of the appellant as one is direct evidence of fact while the other is merely a conjecture.
The trial Court was therefore wrong to have pronounced and recorded a sentence of death against the appellant. The Court of Appeal on its part, with respect, was also wrong in upholding, affirming and confirming that sentence.?
In Babalola & Ors. vs. State (1989) 7 SCNJ 127, Nnaemeka-Agu, JSC held at pages 138 to 139 as follows:
?If the only evidence before the Court of trial were only Exhibit ?Q? the learned

trial Judge might have found it difficult, in spite of the above queries, which might amount only to suspicions, to find against the 4th appellant. For suspicions, no matter how strong, cannot amount to proof. See Abieke vs. The State (1975) 9-11 SC 97. No doubt the onus was on the prosecution to prove its case beyond reasonable, including displacing the claim of the 4th appellant in Exhibit ?Q? that he purchased the carpets and was neither a thief nor a receiver.
In the discharge of this important duty, the prosecution, inter alia called PW4, Lamidu Shittu, the store and stock controller of the Carpet Company. Part of the record of the Court proceedings runs thus:-
?I can now identify two of the five men who came to our factory to buy carpets. They are the 2nd and the 3rd accused.
Cross-examination by Chief Okueyungbo ? Nil.
Cross-examination by Mr. Bayo Azeez:- I mentioned in my statement to the police that two of the persons who came to me had tribal marks. They are the 2nd and the 4th accused in Court. The 4th accused had Auchi tribal marks. I mentioned that these two accused had tribal marks. I did not

mention the particular type of tribal marks they have in my statement to the police
Surprisingly Mr. Aransi who appeared for the 4th appellant did not ask a single question in cross-examination in spite of the very damaging evidence of 4th PW against his client. The learned trial Judge in his well reasoned judgment held as follows:
?The 4th prosecution witness had also identified the 2nd and 4th accused as some of the persons who came to his store on 20th May, 1981 to collect the carpets being now said to have been obtained by false pretences. That witness ? the cashier in his evidence said he could identify the 2nd and 3rd accused as two of such men but to point later and state that he could recognize the 2nd and 4th accused by the tribal marks on them. Witness referred to the tribal marks of the accused as Auchi type tribal marks. Nothing contrary to the witness?s evidence and observation as related by him has come from any other scene in these proceedings.?
Later he stated that he believed the evidence of this witness, among others. Looking at the evidence as it relate to the 4th appellant there are good

reasons why it should be believed.
First:- After PW4 stated in effect that he made a mistake to have mentioned the 3rd appellant instead of the 4th, learned Counsel on his behalf did not as much as cross-examine 4th PW or even suggest to him that he was lying or that his testimony on the point was an afterthought. On principle, where a witness called by the prosecution gives relevant and material evidence, Counsel for an accused has a duty to cross-examine on it or at least indicate that he does not accept it as true. See on this, the case of Walter Barkley Hart (1932) 23 C.A.R. 202, at p.297; Brown vs. Dunn, 6 R. 67, 76-7, H.L. 4. If he fails to do so, then, unless the evidence itself is inadmissible, illegal, or not worthy of belief, particularly where the defence does not produce another piece of evidence which renders the particular evidence in question improbable, then a Court of trial is entitled to accept such evidence as true.
Secondly:- In this case, the 4th appellant did not testify at all in his defence or produce any other evidence to the contrary of what the 4th PW stated above. In the above circumstances, I cannot say that the learned

Judge who watched and listened to the 4th PW testify was wrong to have believed him on the point that 4th appellant, whom he noted had Auchi type of tribal marks, was one of those who, on 20th May, 1981, came to the premises of the Carpet Company and paid for the 8 rolls of carpet with the fake bank draft, Exhibit ?D1? and collected the carpets.?
In Ikemson & Ors. vs. State (1989) 6 SCNJ (Pt.1) 54, Belgore, JSC held at pages 67 to 68 to wit:
?There is no doubt, and this has been well settled that only a contradiction in respect of a material fact would make a Court doubt the evidence. And what is material will depend upon the facts of the particular case- See Nasamu vs. The State (1979) 6-9 SC 153, 158-9.
I think it is right to postulate that material evidence, is such evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. The evidence referred to are not such as must necessarily be taken into consideration in determining the question, and it is neither by itself nor in connection with other evidence determinative of the issue. For instance

the evidence which of the appellants shot PW1 or PW2 or in which leg PW2 was shot is not material to the issue of fact that PW1 or PW2 was shot. That PW1 or PW2 was shot at is material to the crime with which appellants have been charged. Similarly, the sequence of the pointing of a gun at PW1 and PW2 and blocking of the road on a motor cycle. The fact was that there was credible evidence that the gun was pointed at them and the road was blocked by persons on a motor cycle. Thus none of the contradictions alleged by Counsel is material to affect the establishment of the fact that the offence of robbery with arms was committed, and that appellants have been identified as those who committed the offence.
The alleged contradictions are not material to the facts in issue, no explanation seems to me to be required. The contradictions identified do not fall within the scope of the rule laid down in Onubogu & Anor. vs. The State (1974) 9-12 SC 1 at p.20; Boy Muka & Ors. vs. The State (1976) 9-12 SC 325; Ikem vs. The State (1985) 1 NWLR (Pt.2) 378, 386. These decisions are not therefore applicable.?
The learned Counsel to the appellant has not

been able to point out any contradiction in the evidence of the prosecution witnesses which would have led me to interfere with the verdict of the learned trial Judge. See also Okasi vs. The State (1989) 2 SCNJ 183 and Nkwa vs. Commissioner of Police (1977) NNLR 98 at page 103. The learned silk made heavy weather of the electronic generated evidence adduced by MTN without reference to the provisions of Sections 251(1)-(3) of the Evidence Act, 2011 which provides thus:
?(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.
(3) In this section the term ?decision? includes a judgment, order,

finding or verdict.?
Assuming the electronically generated evidence from MTN was wrongly admitted by the prosecution through PW5 and PW6 and is excluded, there still remains their parol evidence, arising from their investigation and the independent interview each witness conducted with the appellant. PW5 and PW6 testified that the appellant could not provide answers to some questions the two witnesses considered required answers. The appellant could not proffer answer or refused to answer. I have already reproduced these questions in their various testimonies before the Court below. It is possible to expunge the confessional statement of an accused but yet found conviction on the parol evidence adduced by the prosecution when contrasted with that of the accused person in the Court below. In Tanko vs. The State (2009) 2 SCNJ 1 the Supreme Court held at pages 18-19 per Aderemi, JSC as follows:
?On issues No.4 and 5 which query the right of the Court below to uphold the reliance of the trial Court in the extra-judicial statement of the appellant in his conviction despite what was called all the irregularities, my answer to it is that though

the extra-judicial statement of the appellant was expunged by the Court below, the viva voce evidence of PW1, PW2, PW3 and PW5 which brought into fore the entire contents of the extra-judicial statement and went beyond was never challenged under cross-examination. The trial Judge was right in law in believing the unchallenged evidence and there is nothing on the records tainting any of the witnesses called. Issues No.4 and 5 are therefore answered in the affirmative.?
In Arogundade vs. The State (2009) 2 SCNJ 44 at 56-57 per Onnoghen, JSC as follows:
?The testimony of PW5 as to what the appellant told him is positive and direct. It is a direct evidence of what the appellant said or confessed to PW5 which was narrated to the Court in the presence of the appellant who failed to challenge it as to either the making of the statement attributable to him or the truth of its contents.
The learned Counsel for the appellant is under the erroneous impression that the original written confessional statement of the appellant having been expunged from the record on whatever grounds, the oral confessional made by the appellant to PW5 is thereby

rendered inadmissible without the appellant raising a separate objection to its admissibility. A confessional may be either oral or in writing. In the instant case, it was both oral and in writing. Does the expunging of the written confession render inadmissible the oral version of the confession of the appellant to PW5 ? who was not the person before whom the written confession was made?
I do not think so. It was the duty of learned Counsel for the appellant to have challenged the testimony of PW5 but he did not. It is at the moment too late in the day to make the attempt.?

Because of the serious and heinous nature of this crime, the learned trial Judge found the appellant guilty relying on parol and computer generated evidence. I shall proceed to consider the meaning of the following words and phrases, namely, ?computer?; ?copy of a document?; ?documents?; a ?fact?; a ?fact in issue?; ?film?; ?real evidence? and ?statement? proffered by the legislature in Section 258(1) of the Evidence Act, 2011 to wit:
?258. In this Act:-<br< p=””

</br<

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?Copy of a document includes:-
(a) In the case of a document falling within paragraph.
(b) But not (c) of the definition of ?document? in this subsection, a transcript of the sounds or other data embodied in it;
(c) In the case of a document falling within Paragraph (b) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied in it whether enlarged or not;
(d) In the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and
(e) In the case of a document not falling within the said Paragraph (c) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document shall be construed accordingly;
?Computer? means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process;
xxxxxx

<br< p=””
</br<

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?Document? includes:-
(a) Books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
(b) Any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
(c) Any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it;
(d) In the case of a document not falling within the said Paragraph (c) of which the visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document shall be construed accordingly.
?Fact? includes:-
(a) Anything, state of things, or relation of things, capable of being

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perceived by the senses; and
(b) Any mental condition of which any person is conscious.
?Fact in issue? includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability ass
?Film? includes a microfilm.
?Real evidence? means anything other than testimony admissible hearsay or a document the contents of which are affected evidence of a fact at a trial, which is examined by the Court as a means of proof of such fact.
?Statement? includes any representation of fact whether made in words of otherwise.?

PW5 and PW6?s detailed parol testimony corroborated the electronic evidence obtained from MTN. The electronic evidence further corroborated the conversation witnesses had with the deceased, between 13th January, 2013 to 17th January, 2013. The flash drive or disk was played in open Court during trial. The learned Counsel representing the appellant in the Court below did not contradict or discredit the conversation nor impugn the electronically generated evidence. The evidence

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emanated from a ?computer? and is equivalent to evidence in a document or series of documents as defined in Section 258(1) of the Evidence Act, 2011. The evidence generated from the computer obtained or made available by MTN constituted a ?fact? to prove the ?facts in issue? in the trial and conviction of the appellant for the kidnapping of the deceased. The conversations recorded by MTN and made available to PW5 and PW6 also amounted to a ?statement? and constituted ?real evidence? under Section 258(1) of the Evidence Act, 2011. See Phipson On Evidence, 15th Edition, Pages 2-3 Paragraph 1-03 to 1-07.

The electronic generated evidence from MTN tendered through PW5 and PW6 also constituted direct and real evidence upon which the learned trial Judge was right to found the conviction of the appellant for the offence of kidnapping. The electronically or computer generated evidence from MTN further amounted to primary but not secondary evidence. In Phipson On Evidence, 15th Edition, appears the following passage at Pages 4 to 5 Paragraphs 1-08 to 1-09 as follows:
?PRIMARY AND SECONDARY

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EVIDENCE:
As commonly used, these terms apply to the kinds of proof that may be given of the contents of a document, irrespective of the purpose for which such contents, when proved, may be received. Primary evidence means the best or highest kind, that which the law regards as affording the greatest certainty of the fact in question: thus, production of the original document, or proof of an admission of its contents by the party against whom it is tendered, is considered primary in this sense. Secondary evidence means inferior or substitutionary evidence, that which itself indicates the existence of more original sources of information; thus, a copy, or the testimony of a witness who has read the document, is secondary. In Lucas vs. Williams, Lord Esher remarked: ?Primary evidence is evidence which the law requires to be given first: secondary evidence is evidence which may be given in the absence of that better evidence, when a proper explanation of its absence has been given.? This, however, is only appropriately true, for the law in some cases requires secondary evidence to be given first, and in others allows the production of primary

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evidence to be optional. The terms ?primary? and ?secondary? are also occasionally applied to proof of handwriting, and attestation, and Taylor regarded depositions as secondary evidence of oral testimony.
SECOND-HAND AND SECONDARY EVIDENCE DISTINGUISHED:
Used the above sense, the term second-hand (i.e. hearsay) evidence is applicable both to oral and written statements; it deals only with their use as evidence of the truth of the facts asserted; and at common law it is, in general inadmissible, however unanswerably the absence of the original source may be accounted for, e.g. by the death, absence or lunacy of the percipient witness. The term secondary evidence, on the other hand, is by common usage confined to documents; it deals only with the means of proving their contents; and it is in general admissible whenever the absence of the primary source has been satisfactory explained.?
See Lucas vs. Williams (1892) 2 Q.B. 113 at 116 per Lord Esher. Paragraphs 27-35 at Page 700 of Phipson on Evidence (supra) also reads:
?WEIGHT OF A STATEMENT IN A DOCUMENT PRODUCED BY A COMPUTER:
The statute provides

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that in estimating the weight, if any, to be attached to a statement regard shall be had to all the circumstances from which any inference can reasonably be withdrawn. In particular, regard shall be had (a) to whether it provides information that was supplied contemporaneously to the computer, or recorded contemporaneously for the purpose of being so supplied; and (b) to whether anyone concerned with the supply of the information or the operation of the computer had an incentive to conceal or misrepresent the facts.?

Section 84 of the Evidence Act, 2011 provides as follows:
?84(1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this Section are:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process

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information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of it contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Subsection (2):
(a) Of this section was regularly performed by computers, whether
(b) By a combination of computers operating over that period; or

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(c) By different computers operating in succession over that period, or
(d) By different combinations of computers operating in succession over that period; or
(e) In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in accordingly.?

The evidence emanating from the computer of MTN shows that the appellant and one Nnamdi Osita whom PW5 and PW6 regarded as accomplices to the crime used the deceased?s phone between 13th January, 2013 and 17th January, 2013. That was the last time PW1 to PW4 would hear from Chinwuba Ekwenze. It is within the province of the Chambers of the Honourable Attorney-General and Commissioner of Justice in a State to determine whom to prosecute or not, and for which offence allegedly committed by any suspect. This Court is not in a position to question why Nnamdi Osita was not prosecuted along with the appellant. See Layiwola & Ors. vs. The Queen

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(1959) 4 FSC 119 and Atanda vs. Attorney-General of Western Nigeria (1965) NMLR 225 at 229.

It is a fact that Chinwuba Ekwenze is not alive to testify. But the computer generated evidence recorded his conversations with the appellant, Nnamdi Osita, PW1-PW4 between 13th January, 2013 to 17th January, 2013. MTN also recorded the statement of each prosecution witness that had conversation with the deceased, the appellant and Nnamdi Osita between 13th January, 2013 up to 17th January, 2013. Each of the prosecution witnesses Nos. PW5 and PW6 had personal knowledge of the matters dealt with in the computer by MTN. This was tendered at the trial through PW5 and PW6. The fact that PW5 was a ?mobile forensic expert? (see page 131 lines 13-19 of the printed record) was not contradicted during cross-examination. The defence Counsel did not challenge the credential or expertise of PW6 through whom the call flash was put in as evidence. PW5 and PW6 gave detailed evidence as to how they were able to link the appellant with the disappearance of the deceased. Section 83 of the Evidence Act, 2011 deals generally with the admissibility of documentary evidence.

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This is made clear by the heading to the section. Section 84 of the Evidence Act (ante) relates specifically to ?admissibility of statement in documents produced by computers?. There is no challenge to the fact that the information contained in the statement in the computer which the prosecution derived to prosecute the appellant was derived from information supplied to the computer in the ordinary course of those activities? under Section 84(1)(d) in the course of the business carried out by MTN in the telecommunication industry. In Mrs. Elizabeth Anyaebosi vs. R.T. Briscoe (Nig.) Ltd. (1987) 6 SC 15 it was common ground that the appellant had an account with the respondent which recorded their business transactions. The respondent had produced a certified true copy of the statement of account (Exhibit ?P4?) from its computer generated record which was admitted without objection by the appellant?s learned Counsel in the Court below. The learned trial Judge relied on Exhibit ?P4? to found for the respondent. The appellant contended in the Supreme Court that Exhibit ?P4? was

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inadmissible. Uwais, JSC (as he then was) observed at page 33 lines 5 to 22 as follows:
?At the hearing before the trial Judge (Williams, J.), the plaintiff called only one witness ? Mr. Edward Oladipo Aina, who was its Spare Parts Manager. The witness after testifying that the plaintiff?s accounts were kept by computer, tendered a statement of account which the plaintiff kept in respect of its transactions with the deceased. The statement was admitted, without objection by the deceased?s Counsel, as Exhibit ?P4?. This exhibit which is in a computer printed form was certified to be a true copy by one Chief T. Ola Odukoya, employed as Senior Accountant in the plaintiff?s Motor Account Department. The exhibit was dated 31st December, 1980 and it showed a balance of N60,535.10 as outstanding against the deceased.?
The Supreme Court took into consideration the fact that Exhibit ?P4? was admitted without objection to hold at page 43 to 47 as follows:
?In general, it is true that where a document, which is inadmissible in evidence, is admitted at trial, such document must be rejected on

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appeal ? Ajayi vs. Fisher, 1 FSC 97, Esso West African Incorporated vs. Alli (1968) NMLR 414 at p.423 and Jacker vs. International Cable Co. Ltd. (1888) L.T.R. 13. However, this rule is not without exception. Certain class of evidence is absolutely inadmissible by virtue of some statutory provisions; while another class is made admissible under certain conditions. In the case of the former class the evidence cannot be acted upon whether it was admitted by consent of the parties or otherwise; and the evidence will be rejected on appeal if it was admitted in the trial Court ? See Owonyin vs. Omotosho (1961) 1 All NLR 304 at p.308; Yassin vs. Barclays Bank D.C.O. (1968) 1 All NLR 171 at p.177 and Alashe vs. Ilu (1964) 1 All NLR 390 at p.397. With regard to the latter class if the conditions laid down for the admission of the evidence are not absolute, as in the former class, then such inadmissible evidence if admitted without objection, the appellant cannot complain against the admission ? See Chukwurah Ekume vs. Mathias Ekwunno & Ors. 14 WACA 59; Yassin vs. Barclays Bank D.C.O. (supra) at p.179; and Alade vs. Olukade (supra) where this

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Court (per Idigbe, JSC) observed as follows:
?Dealing with the latter class of cases, however, this Court in Cavalotti Govianni vs. Bonaso Luigi, SC.402/67 of 31/10/69, held that a document (a photocopy) which did not comply with Section 96(1)(b) of the Evidence Act and which had been admitted without objection by the appellant was legal evidence upon which the Court could properly act. See also Chukwura Akunne vs. Mathias Ekwunno and Ors. (1952) 14 WACA 59. Accordingly, in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal. See Gilbert vs. Endean (1878) 9 Ch. D. 259 where Cotton, L.J. made the following observations:-
?But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.
It is very clear that Exhibit

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?P4?, in the present case, was admissible under the provisions of Section 96 Subsections (1) and (2) of the Evidence Act. But the respondent did not lead evidence to show which of the conditions under Section 96(1) applied to the exhibit. Appellant on the other had did not object; he cannot therefore now complain that the exhibit is inadmissible because no evidence was led by the respondent at the trial to show which of the paragraphs in Section 96(2) covered its admission. In Yassin vs. Barclays Bank D.C.O. (supra), Lewis, JSC stated at p.179 as follows:
?We do not, in this judgment seek to derogate from what we said in Alashe vs. Ilu in any way. That case was dealing with evidence absolutely inadmissible by virtue of the statutory provisions applicable there, but here the statement of account is expressly declared to be admissible under Section 96 of the Evidence Act, if certain conditions are satisfied. If inadmissible evidence is not objected to and is admitted it must still be rejected on appeal but if the evidence can be interpreted as complying with the appropriate statutory requirement, then it is a matter to be taken into

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consideration when interpreting the evidence that it went in unchallenged. In other words, if the evidence can be treated as inadmissible because there is a possible other interpretation which would render it inadmissible when that possible other interpretation had not been tested by questions from the party who could have objected to the evidence being admitted.? (emphasis mine).
Karibi-Whyte, JSC held at pages 60 to 67 as follows:
?It is pertinent to observe that Exhibit ?P4? alleged to be inadmissible by Counsel to the appellants is the statement of account by the respondents of the transaction between appellant and respondents. In Paragraph 5 of the statement of claim which was admitted in Paragraph 3 of the statement of defence, it was pleaded as follows:
?5. That the defendant kept account No.534-121-210 with the plaintiff and the plaintiff shall rely on the defendants? statement of account kept with the plaintiff at the trial of this suit.?
It is this admitted statement of account that was certified by Chief T. Ola Odukoya, the Senior Accountant of the respondent as Exhibit ?P4?.

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Chief Odukoya was described by Counsel to the appellant as a party interested within the meaning of Section 90(3) of the Evidence Act.
Mr. Aduroja has in his brief of argument submitted that Exhibit ?P4?, the statement of Account, was rightly admitted under Section 90(2) of the Evidence Act. It was submitted that Exhibit ?P4? was not made by a person interested within Section 90(3) of the Evidence Act since Chief T. Ola Odukoya was Senior Accountant of the respondent?s Company and by virtue of his office and in the ordinary course of duty, and had no personal financial interest in the result of the case. Counsel also rejected the contention that Exhibit ?P4? was made in articulation of litigation. He referred to Exhibit ?P10?, ?P11?, and ?P12?, letters of demand from Solicitors of the respondent to the appellant, and contended that Exhibit ?P4? was made not in anticipation of litigation but in the ordinary course of commercial transactions. Counsel referred to Beamans Ltd. vs. Metropolitan Police District Receiver (1961) 1 WLR 634; Jarman vs. Lambert and Cooke

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(Contractors) Ltd. (1951) 2 All ER 255 at p.261.
Without conceding the fact, but assuming that Exhibit ?P4? was wrongfully admitted, in evidence, Counsel submitted that the decision having been upheld by the Court of Appeal, the judgment was saved by the provisions of Section 226(1) of the Evidence Act. The dominant consideration is whether substantial justice has been done taking into account what has been properly proved ? Counsel cited and relied on Alhadi vs. Allie (1951) 13 WACA 323; Owoyin vs. Omotosho (1961) 1 All NLR 304; Okirinta Ugbola & Ors. vs. Awo Okorie & Ors. (1972) 12 SC 1 at pp.13-14.
It is of primary and critical importance that a document used in litigation must not only be relevant, it should also be admissible. Section 96(1) sets out the circumstances where secondary evidence will be admissible. Counsel to the appellant is contending that Exhibit ?P4?, being a computer copy of the statement of account, does not fall within any of the conditions (a)-(h) set out in Section 96(2).
It is well settled that a Judge is perfectly entitled in his judgment to disregard an evidence erroneously

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admitted at the trial. See Alashe vs. Ilu (1964) 1 All NLR 390, 397. Similarly where the inadmissibility is raised on appeal, such evidence must be rejected and expunged. ? See Ajayi vs. Fisher (1956) 1 FSC 97; Esso West African Incorporation vs. Alli (1968) NMLR 414, 428. For the purposes of admissibility, there is the category of evidence which are absolutely inadmissible on the grounds of statutory exclusionary provisions. This category of evidence remain legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or on appeal even where admitted by consent. See Ikenye vs. Ofunne (1985) 2 NWLR (Pt.5) 1; Owoyin vs. Omotosho (1961) 1 All NLR 304, 308; Alashe vs. Ilu (1964) 1 All NLR 390, 397; Yashin vs. Barclays Bank D.C.O. (1968) 1 All NLR 171, 177. There is the other category of inadmissible evidence rendered admissible on the fulfillment of certain conditions. This category of evidence are admissible if admitted without objection by the other party, and where the admission of the evidence did not affect the result of the case ? See Okeke vs. Obidife (1965) NMLR 113; Alade vs. Olukade (1976) 6 SC 183. In

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the last mentioned category, the other party is not entitled thereafter to complain where such evidence was admitted at the trial without objection. This principle of English common law was stated in the English case of Gilbert vs. Endean (1878) 9 Ch. D. 259, and applied in this Court in Alade vs. Olukade (1976) 6 SC 183. It is not applied to Section 96 of the Evidence Act. In Gilbert vs. Endean (supra) Cotton, L.J. said:
?But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is led does not object, but treats it as admissible, then before the Court of Appeal, in any judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.
In adopting this view Idigbe, JSC in Alade vs. Olukade (supra) relying on the unreported decision of this Court in Cavatotti Govianni vs. Banaso Luigi SC.402/67 of 31/10/69, and the West African Court of Appeal case of Akunne vs. Ekwuno & Ors. (1951) 14 WACA 59 on the non-compliance with Section 96(1)(b) of the Evidence Act, Cap. 62, and where evidence was admitted without objection said,

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in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own act at the trial, be precluded from objecting to such evidence on appeal
The legal effect of the two categories of evidence as I have tried to show was stated lucidly in Yashin vs. Barclays Bank D.C.O. (supra) at p.179. It is important to state that a computerized account which Exhibit ?P4? was described to be, does not fall into the category of evidence absolutely inadmissible by law. In my opinion it falls within the category of evidence admissible on the fulfillment of the conditions prescribed in Section 96(1) and (2) of the Evidence Act, Cap.62. Admittedly, there was no evidence in the trial Court to explain the conditions under which Exhibit ?P4? was being tendered, and admitted, this Court has only recently in Kate Enterprises Ltd. vs. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116, held that evidence by any servant or agent of a company is relevant and admissible to establish any transaction entered into by that company. That decision went further to hold that the evidence tendered need

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not be that of the official who took part in the transaction. I do not think that a computerized account could not be brought within the category of documents, establishing the transaction between appellants and respondents as stated in Kate Enterprises Ltd. vs. Daewoo (Nig.) Ltd. (supra). The originals of this evidence are described in Section 96(1)(d), (g). These are:
?(d) When the original is of such a nature as not to be easily movable.
xxxxxx
(g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.?
However, since the basis of the admission of Exhibit ?P4? was not at the trial tested by cross-examination to determine whether it fell within either of these classes the validity of its admissibility is merely a matter to be taken into consideration. In the circumstances where appellant was not at any stage disputing that there was an account with the respondent company, and the proper officers of the company were at no time challenged, it is consistent with the provisions of Section

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96(2), that Exhibit ?P4? is secondary evidence in respect of the documents stated in Section 96(1)(d) or (g) ? See Section 96(2)(a), (d).?
Karibi-Whyte, JSC concluded at pages 70 to 71 as follows:
?In all commercial transactions litigation is always ultimately likely and a possibility. If all statements and documents prepared in the course of business or other transactions were to be excluded from proceedings in Court on this ground, then a serious clog has been introduced into the wheel of legitimate transactions and the administration of justice.
In my opinion and for the reasons given above Exhibit ?P4? is admissible for the purpose of this appeal, and the Court of Appeal was right in the view that it was too late to complain.?

In Grant & Anor. vs. Southern & County Properties Ltd. & Anor. (1974) 2 All E.R. 465, Walton, J., sitting in the Chancery Division held at page 469 as follows:
?The first question which arises is therefore: is a tape recording a document? For if it is not a ?document?, none of the provisions of RSC Order 24 will apply thereto at

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all, and a fortiori the provisions of Rule 10 will not apply.
There is no definition of the word ?document? in the Rules of the Supreme Court (See RSC Order 1, Rule 4(1). It is interesting to observe that there is a definition in extremely wide terms in the Iron and Steel Act, 1967, Sch. 2, as ?any device by means of which information is recorded or stored?. There is also a definition in Section 10(1) of the Civil Evidence Act, 1968, again in exceedingly wide terms, which expressly includes tapes. These definitions, however, are of little assistance in themselves.
There are a number of cases in which the meaning of the word ?document? has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin ?documentum?: it is something which instructs or provides information. Indeed, according to Bullokar?s English Expositer, 1621, it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: ?Something written, inscribed, etc, which

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furnishes evidence or information upon any subject, as a manuscript, title deed, coin, etc,?, and it produces as the relevant quotation: ?These frescoe? have become invaluable as documents?, the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860.
I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information ? impliedly other than as the document itself ? as being one of the main functions of a document. Indeed, in Re Alderton and Barry?s application Morton, J., expressed doubted whether blank workmen?s time sheets could be classified as documents within Section 11(1)(b) of the Patent and Design Acts, 1907-1939 expressly because in their original state they conveyed no information of any kind to anybody. He said:
In order to establish that the present case comes within Section 11(1)(b), the opponents have to satisfy me upon three points: (a) that the cards upon which they rely are ?documents? within the meaning of the subsection (and then (b) and (c) which are not material for the present purposes). As to (a), I

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incline to the view that Mr. Wale was right in holding that the cards in question are documents, but feel considerable doubt on the point, having regard to the observations quoted above, as the cards may equally well be described as ?examples or models of the invention itself.? Further, it is true to say that they convey no information at all until they have been put into a time recording machine and have had records of time stamped upon them. In various dictionary definitions the conveying of information is treated as being an essential feature of a document. For instance, in the Shorter Oxford Dictionary, I find the definition: ?Something written, inscribed, etc, which furnishes evidence or information upon any subject, as a manuscript, title-deed, coin, etc.? in Webster?s New International Dictionary (1911) the definition is: ?An original or official paper relied upon as the basis, proof, or support of anything else; in its most extended sense, including any writing, book, or other instruction conveying information This feature is wholly lacking on the cards in question.?

Walton, J.,

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examined numerous decided authorities before holding at page 475 as follows:
?Does such a difference exist? In my view it does not. It appears to me that written or printed words are, after all, only encapsulated sound ? and in a sense badly encapsulated sound, in that they often do not, when they purport to be a record of direct speech, embody the tone of voice, the inflexions, the subtleties of phrasing and pauses, which form the warp and woof of real-life conversation. If two parties to litigation have a record of a vital conversation, one in the form of a shorthand note, and the other in the form of a tape recording. I think that both would be justified, under normal English usage, in saying that they held ?documentary proof? of the conversation. If there was in existence a tape recording of Queen Elizabeth I?s speech to her troops at Tilbury would not all the world say that that was a priceless historical document?
It is, I think, noteworthy that instructional films have for many years now been called ?documentary films.? This strengthens my belief in ordinary current English usage a document is

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primarily something that instructs and is by no means to be confined to ?books, clothed in black and red, of Aristotle and his philosophies? which the Clerk of Oxenford had in days gone by, or thing ejusdem generis therewith. A film is a documentary film, notwithstanding that the sound is, of course, incorporated in the print. I do not think that popular speech makes any distinction between the visual and oral parts of what is all one subject-matter.
Though only of persuasive authority, I observe that in the recent case of R vs. Robson, Shaw, J., records, without adverse comment, the submissions which had been made by the very experienced Counsel before him concerning the admissibility of tapes in a criminal trial:
?It was not contended that the tape recordings were, as such, inadmissible evidence of what was recorded on them. The objections taken were put under the following heads: first, it was said that the recordings, being in the nature of documentary evidence, must be excluded unless either (a) they were shown to be originals, or (b) the absence of the originals was satisfactorily explained and it was shown that the recordings

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it was sought to be put in evidence were true copies of those originals. This objection was, of course, founded on the strict rule requiring that the best evidence must be tendered or its absence accounted for before secondary evidence can be received. The application of the rule in a trial by jury can give rise to difficulties in delimiting the function of the judge in deciding admissibility while at the same time avoiding any unnecessary or unwarranted incursion into matters which go to cogency and weight which are for the jury to consider and to decide.?
In the upshot, I conclude that a tape recording, provided of course that what is recorded is indeed information ? relevant sounds of some description ? is a document.?

In construing the provisions of Sections 83 and 84 of the Evidence Act, 2011, attention has to be given to each and every punctuation inserted between one section, subsection or paragraph to arrive at the intention of the legislature. The draftsman employed punctuations such as coma or semi-colon in drafting the provisions of the said section. In Maxwell On the Interpretation of Statutes, 12th Edition by P.

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St. J. Langan appears the following passage at Pages 13 to 14 under ?Punctuations? to wit:
?Punctuation is disregarded in the construction of statutes, since there was generally no punctuation in old statutes as engrossed on the Parliament Roll, and not all of the modern vellum prints of statutes are punctuated. ?In an Act of Parliament there are no such things as bracket any more than there are such things as stops.? ?Before 1850 there was no punctuation in the manuscript copy of an Act which received the Royal Assent, and it does not appear that the printers had any statutory authority to insert punctuation thereafter. So even if punctuation in more modern Acts can be looked at (which is very doubtful), I do not think that one can have any regard to punctuation in older Acts.? In the same way, the manner in which a statute has been printed, the indentation of the paragraphs and so on is irrelevant.
The irrelevance of punctuation has two consequences.
First, a provision in a statute may be read as though the punctuation which appears on the face of the Act were omitted. By Section 113(4) of the

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Housing Act, 1957, ?the local authority shall from time to time review rents and make such changes, either of rents generally or of particular rents, and rebates (if any) as circumstances may require.? This is to be read as though there were no comma after ?rents? where that word occurs for the third time. ?The obligation,? said Harman, L.J., ?is not to make rebates, as grammatically it should be if the comma were there, but to make changes of rebates (if any).?
Secondly, where it is necessary to give a provision a particular construction which is at variance with the way in which the section is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the Act. Section 10 of the Fugitive Offenders Act, 1881 conferred on a Superior Court power to discharge a fugitive where ?by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise? it would be unjust or oppressive or too severe a punishment to return? him. It was held that, apart

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from cases of a trivial nature, the Court?s discretion to discharge a fugitive could be exercised in any case in which the return of the man would be unjust or oppressive or too severe, and was not confined to cases in which the application appeared not to have been made in good faith. In other words, the section was given a wide construction, as though a comma had been inserted before ?or otherwise”.?
I think since punctuations are inserted by the draftsman in modern statutes, I do not see any rational reason why the Courts should disregard them in the interpretation of any section, subsection or paragraphs and sub-paragraphs in a statute or rule of Court. In Maxwell On the Interpretation of Statutes (supra) appears once again at Pages 86 to 87 the following exposition of law as to how to construe words and phrases no matter how wide or restrictive they might be in a statute to wit:
?However wide in the abstract, general words and phrases are more or less elastic, and admit of restriction or extention to suit the legislation in question. The object or policy of this legislation often affords the answer to problems

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arising from ambiguities which it contains. For it is a cannon of interpretation that all words, if they be general and not precise, are to restricted to the fitness of the matter, that is, to be construed as particular if the intention be particular.
Thus, an Act which, reciting the inconveniences arising from churchwardens and overseers making clandestine rates, enacted that those officers should permit ?every inhabitant? of the parish to inspect the rates, under a penalty for refusal, was held not to apply to a refusal to one of the churchwardens, who was also an inhabitant. As the object of the Act was to protect those inhabitants who had previously no access to the rates (which the churchwardens had), the meaning of the term ?inhabitants? was limited to them.?
See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt. 2) 266; NEC vs. Zuogu (1993) 2 NWLR (Pt. 275) 270 and Orubu vs. NEC (1988) 5 NWLR (Pt. 94) 323. Indeed in Mobil Nig. Plc vs. IAL 36 Inc. (2000) FWLR (Pt. 10) 1632, Karibi-Whyte, JSC explained at page 1650 Paragraphs ?C? to ?D? to wit:
?It is an

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elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to get the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative in the construction of a section to read together all the sections and paragraphs. This is because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections in the same Act. ? See Minister of Housing and Local Government vs. Lambert (1969) 2 WLR 447. Clear and unambiguous words should be given their ordinary literal meaning. See Olokologbe vs. Alami (1987) 3 NWLR (Pt.61) 377 SC; African Newspaper vs. Nigeria (1985) 2 NWLR (Pt.6) 137.?
See Tarka & Ors. vs. D.P.P. (1961) NRNLR 63.
In construing the provisions of Section 84(1)-(4) of the Evidence Act, 2011 it has to be again

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borne in mind that information might have been generated from ?a statement contained in a document produced by a computer? [See Section 84(1) and (2) to (d)] or from ?a combination of computers operating in succession over that period? [See Section 84(3) (a)-(b)] or ?by different combination of computers operating in succession over that period? (See Section 84 (3)(c)) or in ?any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers all the computers used for that purpose during that period shall be treated for the purpose of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.? [See Section 84(3) (d)] of the Evidence Act, 2011. Section 84(4) and (5) of the Act further provides as follows:
?(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say:
(a) Identifying the document containing the statement and describing the

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manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in Sub-section (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section:
(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of

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those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.?
Section 84(4)(a)-(b) (i) and 5(a)-(c) of the Evidence Act, 2011 confers an unfettered discretion on the party seeking to rely on computer-generated information or evidence to produce a certificate (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (i) dealing with any of the matters to which the conditions mentioned in Sub-section (2) of Section 84 of the Act relates. The certificate has to ?…purport to be signed by a person occupying a responsible position in relation to the operation of the relevant device or

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the management of the relevant activities, as the case may be, shall be given in evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.? The prosecution did not put in a certificate from the management of MTN regarding the computer generated evidence but chose to call PW5 and PW6 who testified based on the request they had made to MTN requesting for the call history of the missing young man Chinwuba Ekwenze. MTN replied their letter of request by sending them a history of all call records and mobile forensic experts this enabled them to commence analysis of the young man?s history in order to establish who were his last contact and the point of which he went missing. The evidence is that at this point of investigation, they concluded that the appellant knew the whereabouts of Chinwuba Ekwenze. They confronted him with the facts before them. (See page 122 lines 18 to page 123 lines 1-18 of the printed record).
?
The learned trial Judge had the singular honour in the Court below of believing the

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unchallenged evidence of the prosecution witnesses which had more probative value than if a certificate was produced from MTN duly signed by the management. The learned trial Judge held at page 185 lines 7 to 14 of the printed record as follows:
?The evidence of the defendant is inconsistent with his statements to the police as in Exhibits ?B1?, ?F-F2?. In the same vein there are material contradictions in his extra-judicial statements to the Police in Exhibits ?B1?, ?F-F2?. I hold that his evidence is unreliable and worthless. I watched the demeanour of the defendant who testified in this case. My view of the defendant while in the witness box is that he is an untruthful witness.?

The evidence is that, the recording from the MTN call card was played to the hearing of the learned trial Judge. In Senior & Ors. vs. Holdsworth (1975) 2 All ER 1009 spoke about modern invention to prove contested facts through the use of documents such as tape recording at page 1013 to 1014 as follows:
?Under CCR Order 20, Rule 8(1), the summons is limited to ?documents?.

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?Documents? has been given a wide meaning so as to include any material on which there is writing, such as parchment, paper or metal: See R vs. Daye, or on which there are pictures or drawings which give information, such as photographs and plans: See Hayes vs. Brown. It has recently been held by Walton, J., that, so far as discovery is concerned, ?document? include tape recordings: See Grant vs. Southern and County Properties Ltd. I doubt, however, whether this applies to a subpoena duces tecum. It must be remembered that a subpoena duces tecum is issued with the authority of the Court, but it does not, as a rule, come under the eye of the judge or any judicial or any judicial officer. It is issued by a Clerk in the office as a ministerial duty. The litigant, who may be acting in person, fills in the form with the name of the witness and the documents that he desire, and then the clerk stamps it with the Court seal. If the witness does not obey it, he is liable to a fine. If he objects to it, his only remedy is to apply to the Judge of the Court to set the summons aside. That is the first time that any judicial officer sees anything of

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it. This procedure has been followed for centuries in the case of ordinary documents; but I do not think it should be followed in the case of tape recordings or films. These are modern inventions which require special equipment to make them speak or be seen. The Courts are not provided with the equipment. The practical course would be to order the witness to bring not only the tape recording or the film, but also the tape recorder, or the projector and the screen; but the ordinary form of subpoena duces tecum does not provide for this. This equipment cannot by any possibility come under the description of ?documents?. So I would not hold it covered by the ordinary form.
This does not mean, however, that the Court has no jurisdiction in the matter. These new inventions are capable of providing most valuable evidence and the Court should have the means of making them available. We are the masters of our own procedure and have authority to adapt it to meet the needs of the time. In my opinion the High Court has an inherent jurisdiction to make orders for the production and playing of tape recordings and for the production and showing of

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cinematograph film, and the county Court can adopt and apply that jurisdiction under Section 103 of the County Courts Act, 1959. A witness may be required to provide not only tape recordings and films, but also the apparatus that is required to operate it. This jurisdiction should be exercised by the county Court Judge himself and, in the High Court, by a master. The application should be made on notice to the witness so that he can raise any point that he desires. On such an application, the Judge should have a discretion to make such order as he thinks fit. He can order the witness to produce the tape recording or the film, and also the necessary apparatus, and order it to be played over or shown at such place as may be most convenient. And, of course, all expenses must be paid. But the Judge may refuse to make an order if he thinks it would be oppressive or unreasonable or otherwise not proper to be ordered.
If the Judge makes an order with which the witness is aggrieved, the witness will have an appeal to this Court. Although he is not a party to the suit, he is a person who is aggrieved by the order and he is entitled, by leave, to appeal against it:

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See Re Markham, and Re Securities Insurance Co. He must obtain leave either from the Judge or from this Court, but he cannot appeal without such leave: See Section 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act, 1925.
I may here mention a point arising on the County Courts Act, 1959. By Section 108, if a party to any proceedings is aggrieved with the determination of the judge in point of law, he is entitled to appeal to the Court of Appeal. This applies to interlocutory orders as well as final orders. The section does not in terms say that in interlocutory proceedings leave is required, but I think that these are governed also by Section 31(1)(i) of the 1925 Act. In my opinion leave is required from the county Court judge or this Court for appeals from interlocutory orders, even on a point of law.?

Scarman, L.J., held at page 1022 Paragraph ?G? to page 1023 Paragraphs ?A? to ?C? as follows:
?Film is a class of document. The law, as it now stands, does not enable the Court to refuse to issue a witness summons (or subpoena) for the production of documents on due application. The

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remedy available to the person served is to move to set the summons aside. On such an application the Court will set it aside if what is sought is irrelevant, oppressive, an abuse of the process of the Court or recognized by the law as being privileged from production. Further, even if the document sought be relevant and not otherwise privileged from production, the Court has a residual discretion in certain circumstances to protect the document and set the summons aside. The law does, therefore, offer the press and broadcasting authorities some protection against oppressive applications and abuse of process. It is arguable that more is needed, but this is, I believe, a problem for law reform and may have to be considered in a wider con than this case. It could be solved by enacting for the protection of the media a statute analogous to the Bankers? Books Evidence Act, 1879 (though its provisions would be different). I ask two questions. Why should not the burden of showing cause be placed squarely on the party who seeks the production of the film or other working papers of the press, the radio and television? And why should not the law formulate

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guide lines designed to hold fairly the balance between the right of the litigant and the protection of the media? In the Red Lion Square inquiry the same problem arose and was solved by a private viewing of the material by the Judge taking the inquiry, who was then in a position to decide whether or not it should be produced at the inquiry. He decided it should be and ITN produced it (without prejudice to their legal contentious). This course is not open to the Court in litigation, but consideration could well be given to a reform of the law under which the applicant party would be required to satisfy the Court before he could obtain his summons to produce. If such a reform should be contemplated, it should carry with it a formulation of guidelines as to the matters to be considered by the Court on such an application. I would not anticipate that it would result in any real curtailment of the right of a litigant to put his evidence before the Court, but the press and broadcasting authorities would obtain a measure of protection greater than the law now offers and one to which I think they have a claim worthy of serious consideration. Nevertheless in this

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case, on the narrow ground, I would allow the appeal and set aside the witness summons.?

In a situation where there is material conflict in the parol evidence of an appellant with his extra-judicial statement to the police and the learned trial Judge, as he was entitled to do, rejected both, the legal implication is that the evidence of the prosecution witnesses, oral and documentary, remained unchallenged and may be employed to convict and sentence the accused accordingly. The principle is that no one sets out to prove that which had not been denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62 at 102; Ebueku vs. Amola (1988) 3 SCNJ (Pt. 2) 207 at 224 and Elendu vs. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 at 747.

The learned silk representing the appellant again made copious references to the extra-judicial statement of the prosecution witnesses in the Amended Appellant?s Brief of argument. Admissibility of evidence in any judicial proceeding is governed by its relevance to the facts in issue. See Musa Sadau vs. The State (1968) N.M.L.R 124 at 129; Agunbiade vs. Sasegbon (1968) NMLR 223 at 226 and A.C.B. v. Alhaji Gwagwada (1994) 4 SCNJ (Pt. 2) 268

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at 277.

Statements volunteered by the witnesses to the police are to be used for the purpose of cross-examination. See Esangbedo v. State (1989) 7 SCNJ 10 at 15; Onwe vs. The State (1975) 9 NSCC 251 at 381; Q vs. Akanni (1960) 5 FSC 120 at 123 and Locknan vs. State (1972) 5 S.C. 22.

An accused?s statement to the police is not evidence of the truth of its contents but is evidence that it was made at the earliest opportunity the occasion for its making had arisen. See Adelumola vs. The State (1988) 3 SCNJ (Pt.1) 68. The statement of an accused is usually tendered to show it was made and not as proof of the truth of its contents hence the accused has to testify to confirm or deny it. The exception relates to confessional statements. See Kasa v. The State (1994) 6 SCNJ (Pt.1) at 14-15 and Ozaki vs. The State (1990) 1 NWLR (Pt. 124) 92 at 113. The Courts have also held that an accused?s statement to the police is his reaction to police inquiries but certainly not the evidence of the truth of the facts stated therein. See R. vs. Storey (1968) 52 C.R APP.R 334 and Commissioner of Police vs. Oshifalujo (1983) 1 N.C.R 308 at 316. A trial is ?The

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examination of and decision on a matter of law or fact by a Court of law…? See Osborn?s Concise Law Dictionary, 9th Edition, Page 385.

The learned authors of Black?s Law Dictionary defines ?truth? as ?1. A fully accurate account of event; Factuality…? and a ?truths-seeker? is ?one who strives to reveal the truth….? See Page 1657. The duty of the prosecution in all criminal trials is to marshal credible evidence to prove that an offence has been committed by the person charged with its commission beyond reasonable doubt. The accused has a corresponding duty to adduce credible evidence to contradict, discredit or disparage the evidence of the prosecution witnesses showing that the appellant had no opportunity to have committed the offence with which he was charged, or that even if he had, he did not commit the offence that is the purport of Sections 135-137 of the Evidence Act 2011. May I refer to Blake vs. Mowalt 1856 21 Beau 603 at 613 (or 35 English Digest 639) where Romilly, M.R., that great jurist once held that:
?It is the leading principle of the equity administration

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in this Court, that truth shall govern all transactions, and that one who deludes another in a contract, or permits him to be deluded and takes advantage of that delution, cannot afterwards complain, that, if the contract can be set aside, he will be in a worse situation than if the contract had never been entered into? Cited by McCardie J., in Armstrong vs. Jackson (1916-17) All E.R. Rep. 1117/1128.

The appellant denied being indebted to the deceased until PW5 and PW6 confronted him with documentary exhibits to that effect. The fact that the deceased intended to pay for the land he was negotiating to purchase in the village from the N2m debt owed him by the appellant on 24th January, 2013 was never disputed or discredited by the appellant. There was ample evidence to support the evidence of the prosecution witnesses. This provided enough motive for the disappearance of the deceased who has never been found till date. Section 6 of the Evidence Act, 2011 reads thus:
?6(1) Any fact is relevant which show or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct, whether previous or subsequent to

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any proceeding:-
(a) Of any part to any proceeding, or an agent to such party, in reference to such suit or proceeding or in reference to any fact in issue in it or a fact relevant to it; and
(b) Of any person an offence against whom is the subject of any proceeding, is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.
(3) The word ?conduct? in this section does not include statements, unless those statements accompany and explain acts other than statements, but this provision shall not affect the relevance of statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.?

It is trite law that the presence of motive usually strengthens the case of the prosecution depending on the circumstances of each case. See Ishola vs. The State (1978) 2 LRN 111 at page 122 to page 123 per Idigbe, JSC and Adetola vs. R (1960) NWLR 5 at 7. In Phipson on Evidence (supra) Paragraph 15-10 Page 341 to 342 appears the following passage:
?MOTIVE

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AND RELATIONSHIP
The purposes for which evidence of motive may be used are discussed post, Paragraph 15-22. Evidence of motive is generally circumstantial, for instance in R. vs. Heeson (1878) 14 Cox C.C. 40 and R. vs. Smith (1915) 1 CR. App. R. 229, CA evidence was given that each accused stood to benefit financially from the death of the victim. It is often difficult to distinguish evidence of motive from general ?background? evidence of a bad relationship between the alleged perpetrator and the alleged victim. Although there is a strong stream of recent authority in favour of the admissibility of such ?background? evidence it is submitted that such evidence is often highly prejudicial and judges should be sceptical about claims that such evidence is ?necessary to give the jury the full picture.?
The learned authors again stated at Paragraphs 15-22 Page 348 of Phipson On Evidence (ante) as follows:
?Evidence of motive is generally admissible in criminal cases because it is thought to make it more likely that the crime was committed. Such evidence can be relied on to establish both the actus reus and

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mens rea. Thus in R vs. Heeson (1878) 14 Cox C.C. 40, evidence was led in the trial of mother for poisoning her child shortly after its first birthday to show that the accused had insured her child?s life and was entitled to claim 30 shillings if it died after its first birthday. Some doubt has been expressed as to whether the prosecution should be able to show motive where to do so will reveal previous criminal or discreditable behaviour by the accused. In R. vs. Williams, however, the Court of Appeal upheld the trial Judge?s decision to allow the prosecution in a case of a threat to kill to lead evidence that the accused bore the victim a grudge because he had previously been imprisoned for assaulting her.
Some degree of counter-balance to the admissibility of evidence of motive is provided by the fact that an accused may lead evidence suggesting a lack of motive. Thus in R. vs. Acott, the defence led uncontradicted evidence that the accused was fond of his mother.?

The evidence of PW4 is that on 17th January, 2013 around 11pm a number called her that ?…they have my brother (sic) their custody for the past 4 days and you

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did not came to look for him…? (See page 116 lines 21 to page 117 lines 1 of the printed record). The evidence was not discredited or impeached by the defence Counsel during cross-examination. ?Custody? simply means ?…1. They care and control of a thing or person for inspection, preservation, or security.? See Black?s Law Dictionary (ante) P. 441. The learned authors further define ?kidnapping? at Page 948 as follows:
?Kidnapping:- 1. At common law, the crime of forcibly abducting a person from his or her own country and sending the person to another. This offence amounted to false imprisonment aggravated by moving the victim to another country. 2. The crime of seizing and taking away a person by force or fraud. Also termed simple kidnapping; (loosely) abduction; (archaically) manstealing?
?At early common law, kidnapping required a forcible asportation of the victim to another country. Under modern statutes, the asportation need not be this extensive.? Arnold H. Loewy, Criminal Law in a Nutshell 64 (2nd Edition, 1987).
To ?Kidnap? is ?to seize and

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take away (a person) by force or fraud, often with a demand for ransom?. The phrase ?Kidnapping for ransom? means ?The offence of unlawfully seizing a person and then confining the person, usually, in a secret place, while attempting to extort ransom. This grave crime is sometimes made a capital offense. In addition to the abductor, a person who acts as a go- between to collect the ransom is generally considered guilty of the crime.? See Black?s Law Dictionary (supra) Page 948. That is the dictionary meaning of to ?kidnap? or ?kidnapping for ransom.? The evidence of PW4 that those who called her on phone on 17th January, 2013 around 11pm said ?they had her brother in their custody for the past four days and demanded for ransom of N5m else they would was proof that they were kidnappers seeking to extort ransom money from PW4.? The fact that the search for Chinwuba Ekwenze from 14th January, 2013 till date has not yielded fruit raises a presumption in law and fact that those who called PW4 made good their threat and have killed or murdered their victim. The fact that the person or corpse of

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Chinwuba Ekwenze has not been traced and found since 14th January, 2013 is not in doubt.
In Ogundipe & Ors. vs The Q (1954) 14 WACA 458, neither the victim nor the corpse could be traced in a murder charge, nevertheless, the prosecution relied on circumstantial evidence to secure conviction. On appeal to the West African Court of Appeal, Foster-Sutton, P. held at pages 460 to 461 as follows:
?We have examined the evidence against each appellant with anxious care and are satisfied that there was evidence against each one of them upon which the jury could properly come to the conclusion they did. The evidence, in each case, was carefully and fairly dealt with by the learned trial Judge in his summing-up to the jury who had the advantage of seeing and hearing the witnesses, and there is, in our view, nothing which would justify our interfering with the verdict of the jury, in any one of the cases, on the ground of appeal in question.
It was also submitted by Counsel that the learned trial Judge failed to direct the jury properly as to the nature of evidence required in the absence of the corpus delicti and they referred to isolated

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passages in the summing-up in support of this contention.
We are unable to agree with this submission. It appears to us that there was ample evidence, if accepted by the jury as it clearly was, that Apalara died on the night of the 3rd January, 1953, as a result of injuries inflicted upon him, and we are of the opinion that this aspect of the matter was clearly and adequately put to the jury by the trial Judge when he summed up the case to them.
Failure adequately to direct the jury where witnesses for the prosecution had contradicted themselves was also urged as a reason for quashing the convictions, a complaint which, in the light of the careful directions given by the learned trial Judge to the jury on the point, is, in our view, ill-founded.
Counsel also argued that the trial Judge erred in leaving the question whether the seventh witness called by the prosecution, Yesufu Aka, was an accomplice, to the jury, and submitted that the convictions of appellants 5, 6, 8 and 9, accused Nos. 6, 10, 15 and 18, respectively, ought not to be upheld because the only evidence against them was that of Yesufu Aka, who, they submitted, was clearly an

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accomplice, and in the absence of corroboration of his evidence the jury ought not to have convicted.
On the first point, we invited Counsel to refer us to authority for their proposition and they were unable to do so, no doubt for the good reason that the question whether a witness for the prosecution is an accomplice, or ought to be regarded as such, is a question of fact for the jury to determine, and the learned trial Judge properly, we think, left it to them to decide; on the second point, we are of the opinion that the trial Judge?s directions to the jury as to the danger of convicting an accused person on the uncorroborated evidence of an accomplice, were in accordance with the law and practice on the subject. It follows, that, in our view, there is no substance in the complaint.
Mr. Coker also submitted that the learned trial Judge ?did not direct the jury properly on the possibility of returning a verdict of manslaughter,? and that it was his duty to do so even if the defence had not raised the point and he complained of passages in the summing-up to be found at pages 310 and 410 of the record. In this connection we think it

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only necessary to say that the learned trial Judge put the position to the jury as favourably as the evidence justified its being put, and that if they had found a verdict of manslaughter it would have been in the face of the evidence.
The tenth appellant, accused No.19, in substance, repeated the evidence he gave in the Court below, and denied that the statement he was alleged to have given to the police, Exhibit ?C1?, was a voluntary one. He denied attending the meeting held at the Bale?s house on the 2nd January, 1953, or being at the scene of the crime on the night of the 3rd January, 1953, and there was ample evidence, obviously accepted by the jury, showing his complicity in the crime.
For these reasons we are of the opinion that there is no substance in any of the appeals and they are, therefore, dismissed.?
In The Law of Evidence, 4th Edition by T. Akinola Aguda, the learned author wrote at Page 10 as follows:
?Where direct testimony of eye-witnesses is not available, it is permissible for the Court to infer from the proven facts the existence of other facts that may be logically inferred. It has for

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long been established in our law that any case ? including a charge of murder may be proved by circumstantial evidence. See R. vs. Sola Sati (1938) 4 WACA 10; Ogundipe & Ors. vs. R. (1954) 14 WACA 458. Circumstantial evidence must always be narrowly examined, if only because this type of evidence may be more easily fabricated to cast suspicion on innocent persons. To support a conviction, circumstantial evidence must not only be cogent, complete and unequivocal, but compelling and lead to irresistible conclusion that it was the accused and no one else who had committed the offence. In drawing inference of the guilt of an accused person from circumstantial evidence, great care must be taken not to fall into serious error based upon the fallibility of evidence.
Although in a charge of murder in which the body is not found the fact of death is provable by circumstantial evidence, before the accused can be convicted the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no reasonable doubt.?
See also Udedibia & Ors. vs. State (1976) 11 SC 133 at 138-139; Michael Onufreji vs. R

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(1955) App. R. 1 and Esai & Ors. vs. State (1976) 11 SC 39 at 49.
In Rex vs. Sala Sati (1938) 4 WACA 10 the West African Court of Appeal held as follows:
?In this case the only difficulty is that there is no direct evidence of anybody having seen the dead body of the person alleged to have been murdered. In such cases the circumstantial evidence leading to the conclusion that the alleged deceased is dead has to be examined with great care. In this case we are satisfied that the circumstantial evidence that the child Hardo is dead is so strong as to justify the finding, even though no witness testified to actually seeing the body.
The appeals are accordingly dismissed.?
These decisions are founded on what the Courts have called the ?last seen theory? which the Supreme Court explained in Jua vs. State (2010) 2 MJSC 152 by Niki-Tobi, JSC at pageS 171 to 178 to wit:
?An accused person can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the victim. See Obosi vs. The State (1965)

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NMLR 129; Onah vs. The State (1985) 3 NWLR (Pt. 12) 236; Akpan vs. State (2000) 12 NWLR (Pt. 682) 667.
Both the High Court and the Court of Appeal found compelling circumstantial evidence but the appellant does not agree with them. I will go through the evidence to see whether I agree with learned Counsel for the appellant that the circumstantial evidence proffered by the prosecution witnesses and relied upon by the two Courts below failed to meet the required standard of the law, to justify the conviction of the appellant.
I entirely agree with the cases cited by learned Counsel for the appellant at page 12 of his brief that for circumstantial evidence to be enough to support a conviction, it must be positive and unequivocal and must irresistibly point at the guilt of the accused. I shall in like manner, also go through the evidence of some of the witnesses. I shall return to the issue of circumstantial evidence.
Learned Counsel for the appellant first examined the evidence of PW1 in respect of the things found by PW1 at the scene of the crime. Let me also take the evidence of PW1 first. PW1, Saleh Musa, in his evidence in chief said:<br< p=””

</br<

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“On 6/4/94, I was in the exhibit room as CID Officer when one Sgt. Innocent formally at same address with me, presently serving in Benue Police Command brought one cutlass, hean Yellow guinea jumper, one togu yellow guinea however, three photographs of Zusuki Motor cycle with registration No.OY 56G and its negatives. He also brought 3 coloured photographs at the scene of the crime where the deceased was alleged to have been burnt. Some quantity of human hair was also brought to me. This was found at the scene of the crime. Four human teeth at the scene of the crime was also brought to me. Also brought along was some quantity of soil from the scene of crime? I registered all these items as Exhibits Nos. KWS/30/94.?
Counsel appearing for the appellant at the trial Court did not object to the admissibility of torn clothes, the photographs of the Suzuki machine and its negative. He did not also object to the admissibility of the cutlass. He however objected to the admissibility of the photographs of the scene of accident.
In a very well considered Ruling at pages 10 to 12 of the Record, the learned trial Judge admitted the exhibits.

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He said at page 12 as follows:
?Therefore there has not been a breach or non compliance of the Evidence Law. The photographs are therefore admitted under Section 24(4) of the Evidence Law. I therefore admit all the tendered items in evidence and they are accordingly marked as follows:
1. The torn jumper and trouser ? Exhibits ?A? and ?A2?.
2. The cutlass ? Exhibit ?B?.
3. The photographs of Suzuki machine and its negative ? Exhibits ?C? and ?C2?.
4. The photographs of the scene ? Exhibit ?D?.
PW1 was not cross-examined on the exhibits he tendered and admitted. He was merely examined as to his experience in the force and he answered as follows:
?I am an experience Policeman. I joined the Police on June 1982. I was posted as an Exhibit Keeper in December, 1992. It is not compulsory to get police report on lost item. There is no report that the items burnt in the case were burnt in Lagos. The things got burnt at a Government laboratory. We have dispatch books in the Police.?
That is all that came out from the

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examination. The main aim or objective of cross-examination is to destroy or damage the case of the prosecution and to make the Court believe that the accused did not commit the offence; or if he committed the offence there are valid defences available to him. It looks to me from the answers above that the cross-examination gave another opportunity to the prosecution to strengthen or fortify its case. How can the experience of PW1 in the police force, particularly as Exhibit Keeper be of any use to the proof of criminality of the appellant? I can hardly see any nexus. There is none.
PW3 in his evidence in chief said:-
?When we came back from Offa around 6pm, we met the complainant who was back with the particulars. We then started to search for Constable Rotimi. We spent 21 days after the incident looking for Constable Rotimi and Moses Jua. After 21 days of search, we got information from Ede Police Station in Osun State that the suspect we were looking for, Moses Jua, had been arrested and detained there? When they brought Moses Jua, he confirmed that they had killed the Constable PC Rotimi. He then mentione the names of all other accused

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including the accused that was dead.?
PW4 in his evidence in chief said:
?On 28/3/94 the O/C Erinle Police Station, one PC Paul Makanjuola and myself left for Ede. On arrival at Ede, we met the DCO and he confirmed that one Moses Jua is in detention in the cell. He was then brought to Erinle. During interrogation at Ede Police Station, he confessed that himself and one Joseph Ahen Sebastine were the people who stole the motorcycle and that the father of Sebastine Telu was there when they killed PC Rotimi.?
PW5 who took the confessional statement from the appellant, also said:
?We then searched the house of the accused persons with search warrant. We recovered a cutlass, which was believed to have been used in killing the deceased. Later, the torn guinea jumper, trouser, the cutlass, the teeth were registered as exhibits with the Exhibits Keeper.?
Witness had earlier said in evidence that he recovered at the scene, one guinea yellow trouser with one yellow guinea jumper worn by the deceased as well as some quantity of human hair and three teeth.
PW6, in his evidence in chief also confirmed that the

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deceased was last seen with the appellant. He said:
?Capt. Uzor then said, I should go and call Constable Rotimi Jeremiah, the deceased. I went out to see if the officer in charge of the Station was around and I now saw Constable Rotimi Jeremiah coming. Cpt. Uzor now told Rotimi Jeremiah to follow the 1st accused to the Ibukun Olo Baptist Church area Ipee. Rotimi then asked him to book their movement to Ibukun Olu Baptist Church Area Ipee which I did. After booking their movement, they left with the motorcycle Reg. No.OY 3562G both 1st accused and Constable Rotimi.?
The evidence of PW1 and PW6 confirmed that the appellant and the deceased were last seen together. While evidence of accused person last seen together with a victim per se may not be proof of culpable homicide punishable with death, it can support and corroborate other acts of the accused person resulting in the death of the deceased.
Are there such acts in this case? Yes. There are. The things recovered from the scene of crime are evidence of the offence. Upon search of he houses of the accused persons including that of the appellant?s house, the cutlass was

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found. That was the evidence PW5.
Learned Counsel for the appellant submitted that in the absence of forensic evidence on the exhibits the appellant cannot be convicted of the offence. That is quite a new one to me. With respect, I do not agree with him. Where exhibits point unequivocally to the guilt of an accused person, as evidence in this case, forensic is not necessary. Learned Counsel for the appellant rejected the evidence of the prosecution witnesses with a mere waive of the hand at pages 16 to 25. With respect, I do not agree with him. The evidence given by the witnesses were not dislodged by the appellant under cross-examination.
The learned Counsel submitted that Capt. Uzor is an essential witness that the prosecution ought to have called. He urged the Court to invoke Section 149(d) of the Evidence Act. Section 149(a) does not provide that a particular witness should or must be called. The subsection proposes that a particular evidence should be called. See Igwunor vs. Corporative Bank of Eastern Nigeria Ltd. (1994) 8 NWLR (Pt. 318) 90 at 119; Onuwaje vs. Ogbeide (1991) 3 NWLR (Pt.178) 187 at 162 and Aremu vs. The State (1991) 7 NWLR

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(Pt. 201) 1 at 17. Some other witnesses gave evidence of the fact that the appellant was last seen with the deceased and so the evidence of Cpt. Uzor was not inevitable. I repeat that Section 149(a) is on a failure to call evidence and not failure to call a particular witness. Accordingly, the failure to call Cpt. Uzor is neither here nor there.
That takes me to the failure of the prosecution to produce the corpus delicti. Learned Counsel for the appellant made so much weather of it. It is not in all cases where the corpus delicti is produced to secure conviction of an accused person. It is not the law that an accused person must be discharged and acquitted if the body is not produced for medical examination. The law knows that there are instances and circumstances where an accused person takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly, where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is a nexus between the accused and the killing of the victim to the extent

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that the law comes to the conclusion that it is the accused person who killed the deceased.
In Babuga vs. The State (1996) 7 NWLR (Pt. 460) 279 at 296; Onu, JSC said:
?As a matter of fact, conviction can properly be secured in the absence of a corpus delicti where there is a strong direct evidence. It is true that the body of the deceased has not been recovered, but it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.?
I should add here that an accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessarily be direct. There is enough evidence that the body of Constable Rotimi Jeremiah was burnt. How then can the corpus delicti be found?
I should also take the confessional statement of the appellant. Although the Court of Appeal rejected the confessional statement of the appellant, the Court accepted the oral confessional to the crime by the appellant. The Court of Appeal said:
?I agree with the learned trial Judge that the appellant had admitted

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commission of the crime orally to those who arrested him initially before he was ever transferred to the SHB at Ilorin where the PW5 recorded the retracted statements in writing.?
The best evidence for purposes of conviction is confession to the commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act. In this case, the Court of Appeal rejected the confessional statement but accepted the oral confession made by the Appellant to the police. A conviction on the oral confession is proper in law. Although learned Counsel faulted the witnesses for the prosecution, I am of the view that they gave inculpatory evidence which justifies the conviction of the Appellant and the subsequent confirmation of the conviction by the Court of Appeal. There was not enough cross-examination to destroy the veracity of the evidence of the witnesses. The appeal fails. The Appellant has to face the gallows. The appeal is dismissed.?
See also Ismail vs. The State (2011) 7 MJSC 28; Adenuga vs. State (2011) 13 NWLR

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(Pt. 730) 375 and Adepetu v. State 8 NWLR (Pt. 565) 185. The ?last seen theory? is anchored on the provisions of Section 126(a) of the Evidence Act, 2011.

The conviction of the appellant by the learned trial Judge can be further supported under the provisions of Section 126(b) and (d) of the Evidence Act (supra) which provides as follows:
?(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact.
(c) xxxxxxx
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinion of experts expressed in any treaties commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.?

The evidence of the prosecution witnesses which stands unchallenged and is not discredited can be supported on the ?last

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seen?; ?last heard? and ?last perceived? theory coupled with the grounds on which the opinion of these vital witnesses was held. Section 76 of the Evidence Act, 2011 provides as follows:
?76. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.?
See Paragraphs 37-09 and 37-10 of Phipson On Evidence (supra) Page 921 to 923.

There is no merit in this appeal which is hereby dismissed. The decision of the learned trial Judge is affirmed.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the lead judgment just delivered by my brother, Hon. Justice JOSEPH TINE TUR, JCA.

I agree with his reasoning and conclusion.

The appeal lacks merit.

I also dismissed the appeal and affirm the judgment of the lower Court.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, HON. JUSTICE JOSEPH TINE TUR, JCA. I agree with his conclusion that this appeal should be dismissed. The evidence led by

172

the prosecution is cogent and credible and irresistibly points to the guilt of the appellant. I too dismiss the appeal. I affirm the conviction and sentence of ?life imprisonment without option of fine? passed on the appellant by the Court below.

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Appearances

Okechukwu Otukwu, Esq. with him, M.N. Chukwuemeka, Esq.For Appellant

AND

Mrs. O.F. Nnoron (SSC, MOJ, Anambra State)For Respondent

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