MONDAY OKEKE v. THE STATE
(2019)LCN/13442(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/OW/461C/2017
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
MONDAY OKEKE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
REQUIREMENTS OF A VALID ARRAIGNMENT
Now, the whole exercise conducted by the trial Court falls under the procedure known as arraignment. A valid arraignment in law normally consists of the following:-
(a) that the accused person who is to be tried should be physically present before the trial Court unfettered;
(b) that the charge preferred against the accused person shall be read and explained to the accused in the language he understands to the satisfaction of the Court/judge by the Registrar of the Court;
(c) that the accused shall then be called upon to plead instantly to the charge; and
(d) that the plea of the accused shall also be instantly recorded by the Judge. It is the law that these requirements must co-exist otherwise anything short of this renders the whole trial a nullity.
See (1) LUFADEJU VS. JOHNSON (2007) 8 NWLR (Pt. 1037) 538 (SC)
(2) AMANCHUKWU VS. F.R.N. (2007) 6 NWLR (Pt. 1029) 1 (CA)
(3) SOLOLA VS. STATE (2005) 11 NWLR (Pt. 937) 460 (SC)
(4) CHUKWU VS. STATE (2005) 1 NWLR (Pt. 908) 520 (CA)
(5) AMALA VS. STATE (2004) 12 NWLR (888) 520 (SC). PER ANDENYANGTSO, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
In criminal trials in our adversarial jurisprudence, it is not the duty of an accused person to prove his innocence. The prosecution must establish the guilt of the accused. This, it must do beyond reasonable doubt. See CHIANUGO VS. STATE (2002) 2 NWLR (Pt. 750) 225 (CA). In proving the guilt of the accused however, the prosecution is not required to prove the motive of the accused for committing the crime, because the accused is presumed to intend the natural consequences of his act or conduct. See ADEKUNLE VS. STATE (2002) 4 NWLR (Pt. 756) 169 (CA).
Now, it is trite and settled principle of the law that the standard of proof in criminal trial is proof beyond reasonable doubt, which means that it is not enough for the prosecution to arraign an accused in Court on a mere suspicion that he committed the offence. Therefore there must be evidence, cogent evidence at that, which links the accused to the commission of the offence.
See (1) ABADOM VS. STATE (1997) 1 NWLR (Pt. 479) 1 (CA)
(2) AKINYEMI VS. STATE (1999) 6 NWLR (Pt. 607) 449 (CA)
(3) AIGBADION VS. STATE (2000) 4 SC (Pt. 1) 1 at 5. Now, we come to the crux of the matter as far as the Appellant?s Counsel is concerned. PER ANDENYANGTSO, J.C.A.
THE MEANING OF “PROOF BEYOND REASONABLE DOUBT”
The law is clear and settled that proof beyond reasonable doubt does not connote proof beyond shadow of doubt. Thus, if the evidence produced by the prosecution against the accused is so strong as to leave only a remote possibility in his favour which can only be dismissed with the sentence ?of course it is possible, but not in the least probable,? then the case is proved beyond reasonable doubt, though nothing short of that will suffice. See AGBO VS. STATE (2006) 6 NWLR (Pt. 977) 545 (SC) and UWAGBOE VS. STATE (2007) 6 NWLR (Pt. 1031) 606 (CA).
It is also elementary that the burden of proof in criminal law is always on the prosecution and never shifts, except where it is provided by statute. See OKOLO VS. C.O.P. (1977) NWLR 1 (CA) and OKAFOR VS. STATE (2006) 4 NWLR (Pt. 969) 1 CA. Again the prosecution is expected to prove the guilt of the accused beyond reasonable doubt regardless of his plea. PER ANDENYANGTSO, J.C.A.
INGREDIENTS OF THE OFFENCE OF MURDER
?Now, the offence to be proved beyond reasonable doubt in this case is murder. The ingredients of the offence of murder expected to be proved beyond reasonable doubt by the prosecution are clearly spelt out in Section 316 of the Criminal Code, Cap 30 Vol. II Laws of Eastern Nigeria, applicable to Abia State, which is to the effect that the offence of murder is said to be committed when a person unlawfully kills another under the following circumstances:-
(1) if the offender intents to cause the death of the person killed, or the death of some other persons;
(2) if the offender intends to do the person killed or to some other persons some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) if death is caused by administering any stupefying or overpowering thing for either of the purpose last aforesaid;
(6) if death is caused by willfully stopping the breath of any persons for either of such purposes.
Now the ingredients of the offence of murder are that:- (1) the victim died;
(2) the act or omission of the accused directly caused the death of the victim;
(3) the accused intended the natural consequences of his act or omission which was to cause the death or do grievous harm to the victim.
See ANI VS. STATE (2003) 11 NWLR (Pt. 830) 142 (CA)
IGABELE VS. STATE (2006) 6 NWLR (Pt. 975) 100 (SC). PER ANDENYANGTSO, J.C.A.
THE DEFENCE OF ALIBI
The position of law is that where the prosecution adduces evidence sufficient and acceptable fixing the accused person at the scene of crime at the material time, his alibi stands demolished and renders that defense ineffective”.
See also CHUKWUNYERE VS. STATE (2017) LPELR ? 43725 (SC) where the apex Court has this to say on the defence of alibi put up by an accused:-
“…the law is trite that where there is direct and positive evidence of participation in the commission of the offence charged, the alibi, even if raised, will be rebutted by such evidence. See Aliyu v. The State (2013) FWLR 1497. In Njovens v. The State (1973) 5 SC 12 at P. 68, this Court stated the position of the law concerning the plea of alibi as follows: – “There is nothing extra-ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this, If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely this alibi is thereby logically and physically demolished.” See also Sunday Madagwa v. The State (1988) 5 NWLR (pt. 92) P. 60; Owolabi Kolade v. The State (2017) LPELR – 42362 (SC). There is no doubt that the alibi set up by the appellant in this case was effectively demolished by the evidence of prosecution witnesses which fixed the appellant squarely at the scene of the murder of the deceased.” PER ANDENYANGTSO, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State delivered on the 28th day of March, 2017 by the Hon. Justice Onuoha A. K. Ogwe J, sitting at the Umuahia Judicial Division holden at Umuahia in which he convicted and sentenced the Appellant and 3 others to death for the offence of murder of one Chief Peter Okorie punishable under Section 319 of the Criminal Code Cap 30 Laws of Eastern Nigeria, 1963, applicable in Abia State. The judgment is contained at pages 130?140 of the Record of Appeal, to be referred to simply as ?the Record? which was transmitted to this Court on 30/11/2017 but deemed properly compiled and transmitted on 2/5/2018.
Dissatisfied with the judgment, the Appellant filed this appeal out of time, but with the leave of this Court granted on the 4th May, 2017. The Notice of Appeal, containing 9 grounds, was filed on 19/5/2017 (See pages 143?150 of the Record).
The Appellant?s Brief of Argument was filed on 6/7/2018. The Respondent?s Brief was filed on 18/10/2018. The Appellant?s Reply Brief was filed
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on 23/11/2018. The Appeal was heard on 12/3/19 on which date only the learned Appellant?s Counsel was in Court and, arguing the appeal, adopted the Appellant?s Brief and Reply Brief and urged us to allow the Appeal, set aside the judgment of the trial Court, quash both the conviction and sentence of the Appellant, the Respondent? Counsel having been served with the hearing Notice on 23/2/19. The Respondent?s Brief was taken as having been argued under Order 19 Rule 9(4) of the Rules of this Court, 2016.
?It is pertinent at this stage to summarize the facts of this case. The Appellant and 7 others (Dennis Egwu, Augustine Egwu, Okafor Udeh, Francis Okorie, Stephen Okeke, Peter Iroh and Gabriel Ogu) were arraigned on an amended information before the High Court of Abia State, Umuahia Judicial Division, for the offence of murder punishable under Section 319(1) of the Criminal Code, Cap 30 Vol. II Laws of Eastern Nigeria, 1963 applicable in Abia State. The prosecution called four (4) witnesses while each of the accused persons (including the Appellant) testified in his own defence, denying the charge. The Appellant pleaded alibi as a
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defence.
It is the case of the prosecution that on the 13/4/2004, the Appellant in company of other people went to the house of Chief Peter Okorie, armed with clubs, machetes and guns. They caught him, tore his clothes, stripped him naked, beat him up, and dragged him away, and since that day Chief Peter Okorie had not been seen, as he was murdered.
The Appellant, on the other hand denied killing Chief Peter Okorie. He denied knowing who killed Chief Peter Okorie, and did not also know if Chief Peter Okorie had been killed. He also claimed that he was arrested on 4/11/2009 in the market by the Lokpanta Police and taken to Umunneochi Police Station from where he was taken to the State C.I.D Umuahia on 5/11/2009, where he made a statement for the first time.
The Learned Trial Judge, after listening to the witnesses on both side, delivered his judgment in which he found the Appellant guilty, convicted him of the offence of murder of Chief Peter Okorie and sentenced him to death (pages 130 ? 140 of the Record).
The 9 grounds of appeal, shorn of their particulars, are as follows:-
?GROUND ONE
The trial Court erred in Law
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when it failed to consider the statements the accused/appellant made to the police in respect of the charge.
GROUND TWO
The trial Court erred in law when it failed to consider the defence put up by the Appellant during trial.
GROUND THREE
The trial Court erred in law when it tried and convicted the appellant without any indication that he personally took a plea after the charge was explained to him.
GROUND FOUR
The trial Court erred in law when it believed that the prosecution proved death in the murder charge.
GROUND FIVE
The trial Court erred in law when it returned a verdict of guilt in this case even as the evidence of the prosecution witnesses bears material contradictions.
GROUND SIX
The Learned Trial Judge erred in law when he failed to ensure that the Amended Charge which added two new accused persons namely Peter Iroh (7th accused) and Monday Okeke (8th accused), containing two counts in the information were separately read and explained to each of the Eight (8) accused persons and that each of the accused persons pleaded separately to each of the two counts.
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GROUND SEVEN
The trial Court erred in law when it returned a guilty verdict against the appellant despite the absence of any evidence whatsoever connecting him with the crime.
GROUND EIGHT
The trial Court erred in Law when it failed to consider the statement of the accused person/appellant made to the police in respect of the charge.
GROUND NINE
The trial Court erred in law when it returned a guilty verdict against the Appellant based on the evidence of PW1 and PW2 who are blood relations of the victim in the plethora of material contradictions and inconsistencies in their accounts of the events of the 13th of June, 2004 in their statements to the police and testimonies before the Court.
It is to be observed that grounds 1 and 8 are one and the same, while grounds 5, 7, and 9 are also one and the same. In reality there are 6 grounds of appeal in this matter.
From the 9 or 6 grounds of appeal the Appellant distilled 4 issues for determination thus:-
?3.1 Whether from the proceedings of the 12th day of April, 2010 a plea was properly taken by Appellant and others on the amended charge in accordance with the law? Distilled from grounds 3 and 6 of the notice and grounds of appeal.
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3.2 Whether the prosecution proved its case beyond reasonable doubt against the Appellant in view of the inconsistent testimony and contradictions of the evidence of the prosecution witnesses? Distilled from ground 9.
3.3 Whether the prosecution proved its case beyond reasonable doubt against the Appellant? Distilled from grounds 4 and 5.
3.4 Whether the lower Court was right in convicting the Appellant for the offence of murder when all the defences put up by the Appellant were not properly evaluated and considered? Distilled from grounds 1, 2, and 8 of the notice and grounds of appeal.?
Also the Respondent in its Respondent?s Brief of argument formulated 4 issues for determination thus:-
?3.1 Whether the defence of alibi raised was properly raised by the Appellant to warrant it to be investigated by the police and if such failure is fundamental to the case of the prosecution?
3.2 Whether from the proceedings of the 12th day of April, 2010 valid plea was taken by the Appellant and others on the amended charge in accordance with the law?
3.3 Whether the prosecution proved its
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case beyond reasonable doubt as required by law.
3.4 Whether the lower Court was right in convicting the Appellant for the offence of murder in the circumstances of the case.?
The issues of both parties are similar and can be collapsed into the following:-
(a) Issue 1 of the Appellant is the same as issue 2 of the Respondent.
(b) Issues 2 and 3 of the Appellant are the same as issues 1 and 3 of the Respondent.
(c) Issue 4 of the Appellant is the same as issue 4 of the Respondent.
I shall treat the issues the way I have merged them as follows:-
ISSUE 1 OF THE APPELLANT AND ISSUE 2 OF THE RESPONDENT
?Whether from the proceedings of the 12th day of April, 2010 a valid plea was properly taken by the Appellant and others on the amended charge in accordance with the law (Grounds 3 & 6 of the Grounds of Appeal)
Learned Appellant?s Counsel, Ekeanyanwu Esq. noted that in the course of the proceedings at the trial Court, the prosecution amended the charge by adding two other accused persons, namely Peter Iroh and the Appellant as the 7th and 8th accused persons respectively (page 68 of the Record).
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Counsel noted also that in the proceedings of the 12th April, 2010 when the amended charge was read afresh to the Appellant and other accused persons, the record showed that it was Gabriel Ogu and 5 others who were being tried for the offences of conspiracy and murder of one Peter Okorie. He contended, after quoting the judgment of the trial Court at pages 130?131 of the Record, that there was nowhere in the said judgment where it was recorded that a fresh plea was taken by the Appellant and the other accused persons, except that taken by the accused persons on 5/2/2009 when the original 6 accused persons, excluding the Appellant took their plea.
Ekeanyanwu Esq. quoted Sections 163 & 164 (4) of the Criminal Procedure Laws of Eastern Nigeria 1963 and Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria, 2004 which are similar in enactment and submitted that the amended charge in this case was not in compliance with the provisions of Section 164(4) of Criminal Procedure Act in the sense that there was no endorsement or any note endorsed on same showing that it is an amended charge.
Learned Counsel cited the case of C.O.P VS. ALAO
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(1959) WRNLR 39 and a book titled ?Practical Approach to Criminal Litigation in Nigeria? by J. A. Agaba, 1st Edition 2011 and submitted that lack of endorsement on the charge vitiates the proceedings and urged us to so hold.
Ekeanyanwu Esq. further submitted that the trial Court did not comply with the provisions of Section 215 of the Criminal Procedure Act as there was no record of such compliance in its judgment. Quoting an excerpt from the record of appeal at page 80 especially the proceedings of 12th April, 2010, he submitted that the said charge was not recorded as having been read and explained to the Appellant and other accused as required by the provisions of Section 215 of the Criminal Procedure Act, Cap C41, Laws of the Federal Republic of Nigeria, 2004 and the Criminal Procedure Law applicable in Abia State which failure has vitiated the entire proceedings; that the trial Judge only referred to the proceedings of 15th June 2009, when the Appellant had not been arraigned before the Court and when only Gabriel Ogu and 5 other accused persons? pleas were taken on the charge; that the learned trial Judge did not name the accused
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who made their plea and to which of the Counts they pleaded and that on the 12th April, 2010 the record of appeal showed the parties before the Court to be The State vs. Gabriel Ogu and 5 others and so excluding the Appellant and Peter Iroh. He citedUMUOLO VS. STATE (2003) 2 NWLR (Pt. 808) 493 at 508?509 paras D?E and submitted that there was nowhere in the proceedings of the 12th April, 2010 where it was recorded that the amended charge was fully read and explained to the Appellant and the other accused persons to the satisfaction of the Court before recording their pleas.
Okezie Esq., learned Solicitor-General in his response referred to the cases ofATTAH VS. STATE (1993) NWLR (Pt. 305) 257 at 279 paras C?D; AKPAN VS. STATE (2002) 12 NWLR (Pt. 780) 189 at 202 paras E?F; Sections 216 (2) and 217 of the Administration of Criminal Justice Act, 2015; the proceedings of 15/3/2010 in which the Information was amended to add 2 additional defendants and that of 12th April, 2010, and submitted that the procedure adopted by the trial Judge does not derogate from the law as there was no breach of Section 215 of the Criminal Procedure Law ?
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and urged us to so hold. He again referred to Section 168(1) of the Evidence Act, 2011 (as amended) and submitted that the judicial act carried out by the learned trial Judge has been shown to have been done in a manner substantially regular, with the presumption that the requisites of its validity were complied with and then urged us to so hold, and resolve the issue in favour of the Respondent.
Ekeanyanwu Esq. in the Reply Brief reiterated his earlier submissions and added that all the submissions and authorities cited and relied upon by the Respondent were misconceived and so inapplicable to this case. As to Section 168(1) of the Evidence Act, 2011 (as amended) he submitted that same is inapplicable to this case, and urged us to discountenance the submissions of the Respondent?s Counsel on the provisions of the Administration of Criminal Justice Act as at 2010 the said Act had not come into existence.
RESOLUTION
Since this is an attack on the plea of the Appellant taken on the 12th April, 2010, I shall go straight to the proceedings of that day at page 80 of the Record.
?The Court notes read as follows:-<br< p=””</br<
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Accused persons present.
Uchendu Onu Asst. D.P.P for the State.
B.S. Ikwuragum for accused persons.
Due to the amendment to the information, the charge is read afresh to the accused and each pleads not guilty to Counts 1 and 2.
Mr. Onu asks for a date.
Court: I direct that Counsel should agree on dates and I will give accelerated hearing to this case. I give two days to prosecution to field its listed 4 witnesses.
The Counsel agree on 3/5/10 and 6/5/10 for prosecution?s case. The defence is adjourned to 11/5/10, 17/5/10, 24/5/10 and 31/5/10. Accused are remanded in custody.
(SGD)
HON. JUSTICE ONUOHA A.K. OGWE
JUDGE
12/4/2010?
From the Records, this offence was committed in 2004. Prosecution did not start until 2008 when some of the accused were apprehended and charged to Court. At page 56 of the Record only six accused were arraigned in Court and an application was filed by Uchendu O. Onu Esq. Assistant Director, Ministry of Justice, Abia State, seeking to amend the information to add additional accused persons. The relief sought from the Court was for:-
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?1. An order of the Court granting leave to the State to add two additional accused persons.
2. An order deeming the amendment herewith attached as properly filed and served.
AND
3. Any other order(sic) orders as the Hon. Court may deem fit to make in the circumstances.?
This application was dated the 15th day of February, 2010 (page 56 of the Record).
A 9 paragraph affidavit accompanied this application, deposed to by one Hilary Ngwuobia Ukpo, a Chief Litigation Officer in the Ministry of Justice Umuahia, Abia State. This application was granted hence the proceedings of 12th April 2010, reproduced above, resulting in the fresh plea being taken by each of the 8 accused persons, Appellant inclusive. In fact it was the inclusion of the 7th and 8th accused (the 8th accused being the Appellant) that was responsible for the amendment of the Information and the fresh plea taken on the 12th April, 2010 (page 68 of the Record).
?Mr. Ekeanyanwu has complained that the procedure adopted by the learned trial Judge offended the provisions of Section 163 of the Criminal Procedure Laws of Eastern Nigeria, applicable to Abia State, which is the same as
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Section 163 of the Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria, 2004, which provides:-
?163. Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.? Learned Appellant?s Counsel also submitted that the said amended charge did not comply with Section 164(4) of the Act. This section provides:-
?164(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.? Mr. Ekeanyanwu submitted that the above provision means that where, in the course of trial, an amendment is made to the charge, the said charge is to be read and explained to the accused persons. I entirely agree with him. And that was exactly what the learned trial Judge did in this case on the 12th April, 2010. ?Now, the whole exercise conducted by the trial Court falls under the procedure known as arraignment. A valid arraignment in law
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normally consists of the following:-
(a) that the accused person who is to be tried should be physically present before the trial Court unfettered;
(b) that the charge preferred against the accused person shall be read and explained to the accused in the language he understands to the satisfaction of the Court/judge by the Registrar of the Court;
(c) that the accused shall then be called upon to plead instantly to the charge; and
(d) that the plea of the accused shall also be instantly recorded by the Judge. It is the law that these requirements must co-exist otherwise anything short of this renders the whole trial a nullity.
See (1) LUFADEJU VS. JOHNSON (2007) 8 NWLR (Pt. 1037) 538 (SC)
(2) AMANCHUKWU VS. F.R.N. (2007) 6 NWLR (Pt. 1029) 1 (CA)
(3) SOLOLA VS. STATE (2005) 11 NWLR (Pt. 937) 460 (SC)
(4) CHUKWU VS. STATE (2005) 1 NWLR (Pt. 908) 520 (CA)
(5) AMALA VS. STATE (2004) 12 NWLR (888) 520 (SC)
In the instant case, I have earlier reproduced the proceedings of 12th April, 2010, and a careful scrutiny of same indicates that the trial Court did comply with the above requirements, as the Court notes
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indicated that the accused persons were present together with Counsel on both sides, when the learned trial Judge stated, ?Due to the amendment to the information, the charge is read afresh to the accused and each pleads not guilty to Counts 1 and 2? before adjourning the case at the instance of the prosecution Counsel to enable him assemble his witnesses for the accelerated hearing as ordered by the learned trial Judge.
I am therefore satisfied that the learned trial Judge appreciated the mandatory procedure involved in Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as non-compliance therewith would render the entire exercise a nullity. I cannot see the issue of non-compliance with the provisions of the relevant law in the conduct of this case by the learned trial Judge. All the authorities cited and relied upon by the learned Appellant?s Counsel, being good law, have all been complied with and applied by the learned trial Judge in this case.
Without much ado, I answer this issue in the affirmative i.e. from the proceedings of 12th April, 2010 a valid plea was properly taken by the Appellant
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and the other accused persons on the amended charge in accordance with the law. The issue is accordingly resolved in favour of the Respondent and against the Appellant.
ISSUES 2 & 3 OF THE APPELLANT AND ISSUES 1 & 3 OF THE RESPONDENT
?Whether the prosecution proved its case beyond reasonable doubt against the Appellant in view of the inconsistent testimony and contradictions in the evidence of prosecution witnesses? (Grounds 4, 5, 7 & 9).?
I have already noted that issues 2 and 3 of the Appellant are also the same as issues 1 and 3 of the Respondent. So they shall be treated together. Ekeanyanwu Esq. rightly argued issues 2 & 3 of his brief, and afortiori issues 1 & 3 of the Respondent, together as they are interrelated.
Mr. Ekeanyanwu noted that murder is said to be committed under the circumstances listed under Section 316 of the Criminal Code, Cap 30 Vol. II, Laws of Eastern Nigeria, 1963, applicable to Abia State. He referred to ANYANWU VS. STATE (2012) 16 NWLR (Pt. 1326) 221 at 261 paras A?D and submitted that the burden of establishing the elements of an offence falls on the prosecution and the
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standard of proof is proof beyond reasonable doubt. Referring to Section 135 of the Evidence Act, 2011 (as amended), OSUAGWU VS. STATE (2013) NWLR (Pt. 1347) 360 and JUA VS. THE STATE (2010) 4 NWLR (Pt. 1184) 217 SC, he submitted that where the prosecution fails to prove its case, the Court must acquit the accused. He further referred to NWOKEARU VS. THE STATE (2013) LPELR?20642 (SC) and submitted that the Respondent did not establish the elements of the offence of murder in this case.
Submitting further, Mr. Ekeanyanwu stated that the learned trial Judge relied heavily on the evidence of PW1 and PW2 who are blood relations of the deceased in convicting and sentencing the Appellant and other accused persons, without considering the contradictions in their accounts of the events that occurred on 13th June, 2004, referring to the evidence of the said witnesses at pages 21 and 82 of the Record.
?Learned Appellant?s Counsel referred to the evidence of the PW1 and PW2, noting that the trial Court relied heavily on same in convicting and sentencing the Appellant and other accused persons, and submitted that both PW1 and PW2 were uncertain and
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inconsistent as to the year the alleged problem between Anambra/Imo River Basin Authority and their community for which the victim gave a loan of N20,000.00 occurred. He also submitted that there were material contradictions in the evidence of PW1, PW2 and PW3. He referred to a portion of the judgment and the findings of the learned trial Judge in which he accepted the alibi put up by the 3rd, 4th, 5th and 6th accused and discharged them, and argued that the same would have applied to the Appellant and others convicted and sentenced to death.
Counsel urged us to critically review the evidence of PW1, PW2 and PW3 against the backdrop of the findings of the learned trial Judge in respect of the 3rd ? 6th accused persons who were discharged, as the evidence of the prosecution witnesses was doubtful which must be resolved in favour of the Appellant. He submitted that in view of the finding of the trial Court in respect of the discharged accused persons, the PW1 and PW2 were not credible witnesses whose evidence would be believed and relied upon in convicting the Appellant and others, and therefore the prosecution had failed in proving the guilt of the
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Appellant and others beyond reasonable doubt. He referred us to page 133 of the Record and the fact that PW3 did not investigate the alibi put up by the Appellant and others. On these issues, learned Counsel submitted finally that the prosecution failed woefully to prove the guilt of the Appellant and others and urged us to resolve the two issues in favour of the Appellant and against the Respondent.
E. Okezie Esq. the learned Solicitor-General & Permanent Secretary, Ministry of Justice Abia State, referring to OGEDENGBE VS. STATE (2014) NWLR (Pt. 1421) 379 para C; EMEKA VS. THE STATE (2001) 14 NWLR (Pt. 734) 666 at 683; IGABELE VS. THE STATE (2006) 2 SC (Pt. 11) 61 and ADEKOYA VS. THE STATE (2012) 9 NWLR (Pt. 1306) 539 at 566?567 paras H?A on these issues, submitted that the guilt of an accused person can be established by evidence in three different ways:-
(a) a confessional statement,
(b) circumstantial evidence, or
(c) evidence of eye witnesses.
He also stated the law that for the prosecution to succeed it must prove the guilt of the accused beyond reasonable doubt, referring to BABUGA VS. STATE (1996) 7 NWLR (Pt.
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460) 279 at 292 paras G?H, however, he submitted, this standard of proof does not mean proof beyond all shadow of doubt, relying on BOLANLE VS. STATE (2009) 18 NWLR (Pt. 1172) 1 at 10?11 para F?B; EDAMINE VS. STATE (1996) 3 NWLR (Pt. 438) 530 at 538 para G; 539 para A.
Having thus submitted, Mr. Okezie then stated the requirements of proof of murder, citingADAVA VS. STATE (2006) 9 NWLR (Pt. 984) 152 at 167 paras 234?235 paras E, and submitted that the prosecution by the oral evidence of the PW1, PW2 and PW3 had fixed the Appellant on the scene of crime as a participant in the events that led to the death of the Deceased on the 16th day of June, 2004; that these witnesses gave a vivid and credible account of how the Appellant and his cohorts murdered the deceased and took his body away and he has not been seen/found up to now. He then submitted that the prosecution had proved the case of murder against the Appellant beyond reasonable doubt and then urged us to so hold and resolve these issues in favour of the Respondent and against the Appellant.
He citedAKPAN VS. STATE (2008) 14 NWLR (Pt. 1106) 72 at 95 paras E?F;
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MADU VS. STATE (2012) 15 NWLR (Pt. 1324) 405 at 456 paras E?H; OKETAOLEGUN VS. STATE (2015) LPELR? 24836 (SC) pages 33?34 paras B?E to support the fact that the deceased was last seen with the accused/Appellant and so caught up by the doctrine of ?last seen?. He again submitted that since the Appellant is asserting that the Prosecution has failed to prove his guilt the burden of proving so lies on him to prove how the prosecution failed in its duty, relying on UDOSEN VS. STATE (2007) 4 NWLR (Pt. 1023) 125 at 161 paras F?G.
Finally on this, the learned Solicitor-General submitted that the Prosecution has proved beyond reasonable doubt the guilt of the Appellant and then urged us to so hold, and resolve these issues in favour of the Respondent and against the Appellant.
?The Appellant in his Reply brief, in response to the Respondent?s submissions, submitted in respect of the authorities cited and relied upon by the Respondent that a case is only an authority for what it decides and that relying on a case without relating it to the facts that induced it will amount to citing the case out of its proper con,
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relying onIZEZE VS. I.N.E.C. (2018) 11 NWLR (Pt. 1629) 110 at 127 para D. He argued that the cases and authorities cited and relied upon by the Respondent are cited out of con and are entirely different from the facts of the instant case and urged us to so hold. He submitted that the case of MADU VS. STATE (supra) cited and relied upon by the Respondent does not apply to this case as the trial Court did not make any findings based on the doctrine of last seen. He repeated his submissions in respect of contradictions which are fatal to the case of the prosecution, relying on UCHE VS. STATE (2015) 11 NWLR (Pt. 1470) 403?404 paras H?F, and urged us to discountenance all the submissions of the Respondent, as they are inapplicable to this case.
RESOLUTION
I have already reviewed the submissions of learned Counsel on both sides under this issue. The question that arises here is what is proof beyond reasonable doubt? The answer to this question entails a discussion of the burden of proof in criminal trials. I shall endeavor to summarize same here.
?In criminal trials in our adversarial jurisprudence, it is not the duty of an accused
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person to prove his innocence. The prosecution must establish the guilt of the accused. This, it must do beyond reasonable doubt. See CHIANUGO VS. STATE (2002) 2 NWLR (Pt. 750) 225 (CA). In proving the guilt of the accused however, the prosecution is not required to prove the motive of the accused for committing the crime, because the accused is presumed to intend the natural consequences of his act or conduct. See ADEKUNLE VS. STATE (2002) 4 NWLR (Pt. 756) 169 (CA).
Now, it is trite and settled principle of the law that the standard of proof in criminal trial is proof beyond reasonable doubt, which means that it is not enough for the prosecution to arraign an accused in Court on a mere suspicion that he committed the offence. Therefore there must be evidence, cogent evidence at that, which links the accused to the commission of the offence.
See (1) ABADOM VS. STATE (1997) 1 NWLR (Pt. 479) 1 (CA)
(2) AKINYEMI VS. STATE (1999) 6 NWLR (Pt. 607) 449 (CA)
(3) AIGBADION VS. STATE (2000) 4 SC (Pt. 1) 1 at 5. Now, we come to the crux of the matter as far as the Appellant?s Counsel is concerned. The law is clear and settled that proof
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beyond reasonable doubt does not connote proof beyond shadow of doubt. Thus, if the evidence produced by the prosecution against the accused is so strong as to leave only a remote possibility in his favour which can only be dismissed with the sentence ?of course it is possible, but not in the least probable,? then the case is proved beyond reasonable doubt, though nothing short of that will suffice. See AGBO VS. STATE (2006) 6 NWLR (Pt. 977) 545 (SC) and UWAGBOE VS. STATE (2007) 6 NWLR (Pt. 1031) 606 (CA).
It is also elementary that the burden of proof in criminal law is always on the prosecution and never shifts, except where it is provided by statute. See OKOLO VS. C.O.P. (1977) NWLR 1 (CA) and OKAFOR VS. STATE (2006) 4 NWLR (Pt. 969) 1 CA. Again the prosecution is expected to prove the guilt of the accused beyond reasonable doubt regardless of his plea.
?Now, the offence to be proved beyond reasonable doubt in this case is murder. The ingredients of the offence of murder expected to be proved beyond reasonable doubt by the prosecution are clearly spelt out in Section 316 of the Criminal Code, Cap 30 Vol. II Laws of Eastern Nigeria,
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applicable to Abia State, which is to the effect that the offence of murder is said to be committed when a person unlawfully kills another under the following circumstances:-
(1) if the offender intents to cause the death of the person killed, or the death of some other persons;
(2) if the offender intends to do the person killed or to some other persons some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) if death is caused by administering any stupefying or overpowering thing for either of the purpose last aforesaid;
(6) if death is caused by willfully stopping the breath of any persons for either of such purposes.
Now the ingredients of the offence of murder are that:-
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(1) the victim died;
(2) the act or omission of the accused directly caused the death of the victim;
(3) the accused intended the natural consequences of his act or omission which was to cause the death or do grievous harm to the victim.
See ANI VS. STATE (2003) 11 NWLR (Pt. 830) 142 (CA)
IGABELE VS. STATE (2006) 6 NWLR (Pt. 975) 100 (SC)
Now, to the instant case. PW1 and PW2 were eye witnesses to the commission of the offence for which the Appellant, among others, was tried, found guilty, convicted and sentenced to death by the trial Court. These two eye witnesses gave vivid account of what happened, and mentioned all the people they could remember by name. This was as early as 2004 when the offence was committed. In 2008, four years later, they still gave the account of what they saw as if it had just occurred that year. The trial Judge who heard, saw and observed them believed them and accepted their testimonies as true and believable.
It should be noted that there are three methods of proving offences in criminal trials viz:-
(1) by evidence of eye witnesses (as in this case)
(2) circumstantial evidence, and
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(3) confessional statement of the accused.
See IGABELE VS. STATE (2006) 6 NWLR (Pt. 975) 100 (SC). Anyone of these methods can be used.
In this case it was evidence of two direct eye witnesses on which the learned trial Judge relied to convict and sentence the Appellant. Intertwined in this issue is the question of the defence of alibi raised by the Appellant. The defence of alibi can only stand where no eye witnesses testified that they saw the Appellant. The police in this case did not investigate the alibi put up by the Appellant. The trial Judge did not consider the lack of the investigation of the defence of alibi raised by the Appellant of any moment. It is trite that in criminal trials, where the defence of alibi is raised by an accused, and there is evidence that fixes the accused to the scene of crime at the time it was committed, the defence of alibi will collapse.
See BAMIDELE VS. STATE (2019) LPELR ? 46885 (CA) where this Court, per Barka JCA at pages 16 ? 18 paras F ? D stated thus:-
The position of law is that where the prosecution adduces evidence sufficient and acceptable fixing the accused person at the scene of
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crime at the material time, his alibi stands demolished and renders that defense ineffective”.
See also CHUKWUNYERE VS. STATE (2017) LPELR ? 43725 (SC) where the apex Court has this to say on the defence of alibi put up by an accused:-
“…the law is trite that where there is direct and positive evidence of participation in the commission of the offence charged, the alibi, even if raised, will be rebutted by such evidence. See Aliyu v. The State (2013) FWLR 1497. In Njovens v. The State (1973) 5 SC 12 at P. 68, this Court stated the position of the law concerning the plea of alibi as follows: – “There is nothing extra-ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this, If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely this alibi is thereby
29
logically and physically demolished.” See also Sunday Madagwa v. The State (1988) 5 NWLR (pt. 92) P. 60; Owolabi Kolade v. The State (2017) LPELR – 42362 (SC). There is no doubt that the alibi set up by the appellant in this case was effectively demolished by the evidence of prosecution witnesses which fixed the appellant squarely at the scene of the murder of the deceased.”
In the instant case, the learned trial Judge considered the evidence of PW1 and PW2 and stated at page 137 of the Record inter alia that:-
?The evidence of PW1 and PW2 are (sic) direct as to what they saw
Again at page 139 ? 140 the learned trial Judge stated of the evidence of PW1 and PW2 thus:-
?These 2 witnesses were not discredited. Under the circumstances, I believe and accept that it is reasonable to conclude that the accused persons and all those others who participated in the assault killed Chief Okorie. I am impressed by the PW2. He had clear recollection of what transpired and I could see the trauma on his face for a boy of his tender years to watch the murder of his father. I believe him. I find the accused persons guilty of the
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offences as charged. Each of you: Gabriel Ogu (1st Accused), Dennis Egwu (2nd Accused) Peter Iroh (7th Accused) and Monday Okeke (8th Accused) are found guilty and convicted of the offence of the murder of Chief Peter Okorie.?
Of course, these findings are faultless. There is no any basis for disturbing them. They are findings that emanated from proof of the guilt of the Appellant by the prosecution beyond reasonable doubt. I therefore answer the question raised by this issue in the affirmative. For I have searched for the inconsistency and contradictions in the evidence of the eye witnesses to the commission of the offence without finding and seeing any.
I therefore resolve this issue in favour of the Respondent and against the Appellant.
ISSUES 4 OF BOTH PARTIES. (GROUNDS 1, 2 & 8)
?Whether the lower Court was right in convicting the Appellant for the offence of murder when all the defences put up by the Appellant were not properly evaluated and considered (Grounds 1, 2 & 8)
It is submitted for the Appellant that it is trite law that the Court must consider all defences raised by accused persons no matter
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how weak or stupid such defences may appear to be, relying onUWAEKWEGHINYA VS. STATE (2005) 9 NWLR (Pt. 930) 227 at 248 paras A?B; OLAYINKA VS. STATE (2007) 9 NWLR (Pt. 1040) 561 at 586?587 paras H?A. Counsel referred to the evidence of the Appellant at pages 126?127 of the Record both in examination in chief and under cross examination and stated that the Appellant denied committing the offence but that the trial Court did not consider the fact that the arrest and prosecution of the Appellant was instigated by the PW4 who had land disputes with the Appellant and that same was out of malice. He then submitted that if the learned trial Judge had considered the defence put up by the Appellant vis a vis the running legal battle between the Appellant and PW4 over land that Setraco company was working on, the Court would have reached a different conclusion than it did. He submitted that the evidence of the Appellant was not controverted during cross examination. He repeated his submissions under issues 1, 2, 3 above and in conclusion urged us to hold that the judgment of the trial Court was not punctuated by logical thinking and reasoning
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as no careful and proper inferences were drawn by the learned trial Judge, referring to SUNDAY NDIDI VS. THE STATE (2007) 5 SCNJ 274 at 292. He then urged us to allow the appeal by resolving all the issues raised in favour of the Appellant for the following reasons:-
(1) the evidence of the PW1 and PW2 is not credible as same is tainted with contradictions and inconsistencies.
(2) The prosecution failed to prove beyond reasonable doubt that the Appellant indeed committed the offence alleged.
(3) The manner in which the Appellant was arrested and prosecuted clearly showed an instigation by PW4.
(4) The learned trial Judge failed to consider all the defences raised by the Appellant.
In his response the learned Sdicitor-General cited the cases ofNDIDI VS. STATE (2007) 13 NWLR (Pt. 1052) 633 at 657?658 paras G?B; OMOSAYE VS. STATE (2014) 6 NWLR (Pt. 1404) 484 at 513 paras E?F; DIBIE VS. STATE (2007) 9 NWLR (Pt. 1038) 30 at 56 para G; AMINU TANKO VS. THE STATE (2009) 4 NWLR (Pt. 1131) 430 at 453?474 paras H?C and submitted that in criminal trials, especially in capital offences, the Court has a duty to carry out
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which is that it must arrive at its decision through a process of reasoning which is analytical and commands confidence; that if on the whole evidence at the conclusion of trial, the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the accused shall be entitled to an acquittal; that reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is a doubt any reasonable man or woman might entertain and it is not fanciful doubt, and is not imagined doubt as would cause prudent men to hesitate before acting in matters of importance to themselves; that it is not every error by a Judge in his judgment that will vitiate the said judgment; that it is now the law that technicalities ought not to be allowed to defeat substantial justice; that an Appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained about had been corrected, the conclusion reached would have
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been different and in favour of the party complaining of wrong evaluation.
Citing many more cases, the learned Solicitor?General submitted in conclusion that the prosecution has proved its case beyond reasonable doubt as required by law and therefore urged us to dismiss the appeal and uphold the judgment of the trial Court convicting and sentencing of the Appellant for the offence of murder.
RESOLUTION
A critical look at this issue would reveal that there is not much difference between it and the ones just considered. I have dealt with the defence of alibi and held that it does not avail the Appellant in view of the direct eye witness account of PW1 and PW2 fixing the Appellant in unmistakable terms to the scene of crime.
Therefore I adopt my treatise of issue 2 in this issue. I resolve same against the Appellant and in favour of the Respondent.
On the whole this appeal fails and is dismissed, same being unmeritorious. The judgment of the lower Court is hereby affirmed.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I had the
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privilege of reading the draft of the lead judgment, just delivered by my learned brother, Andenyangtso JCA, and I agree with his reasoning and conclusions that the appeal lacks merit.
I too dismiss it.
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Appearances:
Patrick O. Ekeanyanwu Esq.For Appellant(s)
EnyinnayaOkezi, Esq. ACIArb (UK) (Solicitor-General/ Permanent Secretary,
Ministry of Justice Umuahia, Abia State) who settled the Respondent’s BriefFor Respondent(s)
Appearances
Patrick O. Ekeanyanwu Esq.For Appellant
AND
EnyinnayaOkezi, Esq. ACIArb (UK) (Solicitor-General/ Permanent Secretary,
Ministry of Justice Umuahia, Abia State) who settled the Respondent’s BriefFor Respondent
