MSONGO v. STATE (2020)

MSONGO v. STATE

(2020)LCN/13984(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/MK/187CB/2014

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

MSONGO NAM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A TRIAL JUDGE BEFORE WHOM THE HEARING OF A MATTER COMMENCES, IS TO CONCLUDE A TRIAL AND DETERMINE SAME

Ideally, a trial Judge before whom the hearing of a matter commences, ought to conclude the trial and determine same. However, this may not always be the case. Hearing may be truncated for various reasons, which include the transfer of the trial Judge from the judicial division where hearing had commenced to another division. It is important to note that only one High Court exists in a State; Section 270 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Judicial Divisions may be created in the High Court for administrative convenience or purposes. See Section 2, Section 65, and Section 3 (1) and (2) of the High Court Law of Benue State, Cap 75, Laws of Benue State, 2004. See also: SPDC (Nig) Ltd v. Edamkue & Ors (2009) LPELR-3048 (SC).
One of the issues the Supreme Court examined in Egbo & Ors v. Agbara & Ors (1997) LPELR-1036 (SC) was whether the trial Judge, who had been transferred to Port Harcourt was competent to continue to hear the suit up to final judgment. The provisions of the law which were under consideration therein were Sections 46 and 47 of the High Court Law (Cap. 61, Laws of Eastern Nigeria. 1963) which, at the material time, was applicable to the Rivers State of Nigeria. Sections 46(1) and 47(1) of the said High Court Law provided as follows:
46(1) A Judge may by order under his hand and the seal of the Court at any time or at any stage of the proceedings before final judgment and either with or without application from any of the parties thereto transfer any cause or matter before him to a Magistrate’s Court or to a Judge in the same or any other Judicial Division.
47(1) The Chief Judge may by Order under his hand and the seal of the Court or at any time or stage of the proceedings before final judgment and either with or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.
Upon consideration of these provisions, the Supreme Court, per Iguh, JSC said, pages 22 – 25 of the E-Report:
“The second aspect of the question under consideration concerns whether the learned trial Judge Dagogo-Manuel, J. had jurisdiction after his transfer to Port Harcourt to continue with the hearing of the case in his new judicial division. In this regard, attention must be drawn to Sections 234 and 236(1) of the Constitution of the Federal Republic of Nigeria. 1979. These provide as follows: –
“234 (1) There shall be a High Court for each State of the Federation.
(2) The High Court of a State shall consist of –
(a) a Chief Judge of the High Court of the State;
and
(b) such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State” PER OTISI, J.C.A.

THE BURDEN OF PROOF IN CRIMINAL JURISPRUDENCE

It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rests upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. Indeed, he need say no word in his defence. The burden of proof in a criminal trial never shifts from the prosecution under our law. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
See:Williams v State (1992) LPELR-3492(SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta (2017) LPELR-41386(SC). The provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 are also in line with the protection accorded an accused person, as follows:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty – per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. Proof beyond reasonable doubt also does not mean proof beyond the shadow of a doubt – per Denning J. in the case ofMiller v. Minister of Pensions 1947 2 All E.R. page 372 at 373, cited with approval by A. M. Mukhtar, JSC (as he then was) in John Agbo v. State (2006) 1 S.C . (PT. II) 73. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152 so aptly proclaimed:
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
Proof beyond reasonable doubt is the highest standard of proof that must be met in any trial. Contrary to the lower burden of proof placed on a claimant in civil litigation, which is proof by a preponderance of the evidence or balance of probabilities or proof by clear and convincing evidence, the standard of proof placed on the prosecution in a criminal trial is proof beyond reasonable doubt, which demands that no other logical explanation can be derived from the facts, except that the defendant committed the crime. See: Adekoya v. State (2017) LPELR-41564 (SC); Uche v The State (2015) LPELR-24693 (SC); Mbachu v. State (2018) LPELR-45163 (SC); Bassey v. State (2012) LPELR-7813 (SC). Proof beyond reasonable doubt therefore means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness;Abokokuyanro v. State (2016) LPELR-40107 (SC); Bassey v State (2019) LPELR-46910 (SC). When there is proof beyond reasonable doubt, the presumption that a person is innocent until proven guilty is routed or displaced. It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged. On this issue, the Apex Court, per Obaseki, JSC in Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333 (SC) at pages 13-14, said:
“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said:
“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F & F 383 at 384 where the learned Baron said:-
In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.”
(Emphasis mine). PER OTISI, J.C.A.

ESTABLISHMENT OF THE GUILT OF AN ACCUSED PERSON

The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement.
In Mustapha Mohammed v. State (2007) 4 S. C. (PT.I) 1, the Supreme Court, per Niki Tobi, JSC said:
“Where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone if the confession is positive, direct and properly proved. See Milla v. The State (1985) 3 NWLR (Pt. 11) 190; Achabua v. The State (1976) 12 SC 63 and Obosi v. The State (1969) 1 NMLR 204. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction. See Obosi v. The State (supra) and Ataniyi v. The Queen 15 WACA 34. A conviction for murder can be based on the confessional statement of the accused. See Stephens v. Commissioner of Police (1986) 2 NWLR (Pt. 25) 673 and Mbolo v. The Queen (1964) NMLR 49 at 52.
2. Circumstantial evidence.
A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. Again, in Mustapha Mohammed v. State (supra), the Supreme Court, per Niki Tobi, JSC said:
“For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person. See The State v. Ifu (1964) 8 ENLR 28. Before an accused person can be convicted for murder on circumstantial evidence, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. See Esai v. The State (1976) 11 SC 39. A conviction for murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics. See The Queen v. Agwo (1956-84) 10 SCND 35. A Court cannot convict on circumstantial evidence, especially in a case of murder where such evidence points in more than one direction. See The Queen v. Iromachi (1956-84) 10 SCNJ 34.”
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See also: Danjuma v. The State (2019) LPELR-47037(SC); Omoregie v. State (2017) LPELR-42466(SC); Kolade v. State (2017) LPELR-42362(SC); Giki v State (2018) LPELR-43604(SC); Ime David Idiok v. The State (2008) 4-5 S. C. (Pt. I) 84; Igabele v. State (supra); Afolalu v State (2010) 6-7 MJSC 187; Emeka v. State (2001) 88 LRCN 234.

No matter which of these methods the prosecution employs in proof of its case, the guilt of the accused person must be established beyond reasonable doubt; Akwuobi v. State (2016) LPELR-41389(SC). Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, the offence is proved beyond reasonable doubt;Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1). PER OTISI, J.C.A.

THE STANDARD OF PROOF IN A MURDER CASE

It is the well settled legal position that in a murder case, the prosecution must prove beyond reasonable doubt the following ingredients: –
(a) That the deceased died.
(b) That the death of the deceased resulted from the act of the Appellant.
(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.
See: Abogede v. State (1996) 5 NWLR (Pt. 448) 270; Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Igabele v State (2006) 5 MJSC 96; Nwaeze v State (1996) 2 NWLR (Part 428) 1; Gira v. State (1996) 4 NWLR (PT 443) 375; Kada v. State (1991) 11/12 SC 1; Edoho v State (2010) 4 MJSC (PT. 1) 1. It is now to see if the prosecution proved the elements of the offence from the evidence adduced. PER OTISI, J.C.A.

WHETHER OR NOT DOUBTS SHOULD BE RESOLVED IN FAVOUR OF AN ACCUSED PERSON WHERE THERE ARE DOUBTS CREATED IN THE MIND OF THE COURT AS TO THE CULPBILITY OF THE ACCUSED PERSON

It is well settled that when there are doubts created in the mind of the Court as to the culpability of the accused person, these doubts should be resolved in favour of the accused person; Federal Republic of Nigeria v. Mohammed Abubakar (2019) LPELR-46533(SC); Afolahan v. State (2017) LPELR-43825(SC); Oforlete v. State (2000) LPELR-2270 (SC); Okonji v The State (1987) LPELR-2479 (SC). In Nwosu v State (1986) LPELR-2134 (SC) at page 20, the Noble Law Lord, Aniagolu, JSC eloquently put it this way:
“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made.It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.”
The underlying established consideration has always been that it is better for ten guilty men to escape justice than for an innocent man to be condemned unjustly; Shehu v. The State (2010) LPELR-3041 (SC). The Supreme Court, per Obaseki, JSC, in Saidu v The State (1982) LPELR-2977 (SC) at page 28-29, graphically proclaimed:
“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in our streets and thread the Nigerian soil and breathe the Nigerian air as free and innocent men and women.” PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant, as 2nd accused person, and three other persons were arraigned before High Court of Benue State (the lower Court) sitting at Gboko, Coram W.I. Kpochi, J. on charges of criminal conspiracy, grievous bodily hurt and culpable homicide punishable with death contrary to Sections 97, 249 and 222 of the Penal Code Law, CAP. 124, Revised Edition, Laws of Benue State 2004. Upon the transfer of the presiding Judge from Gboko to Sankera, trial was continued in Sankera. At the conclusion of trial, the Appellant, as well as the 1st and 3rd co- accused persons, were convicted and sentenced to death on January 29, 2014, while the 4th accused person was discharged and acquitted. The Appellant lodged the instant appeal against his conviction and sentence.

The case of the prosecution was that on 11/3/2010, the Appellant, his co-accused persons, as well as other persons now at large, pursued one AkumbaIkon, beat and inflicted injuries on him, leading to his death at the scene. The said incident occurred at Mbatiav in Gboko Local Government Area, Benue State. The prosecution before the trial

Court called four witnesses and tendered Exhibits A1-A4, which were the statements of the accused persons; and, Exhibit B, which was the medical report, while the defence called six witnesses. The Appellant totally denied involvement in the death of the deceased. The learned trial Judge however found otherwise.

By Notice of Appeal filed on 24/4/2014, the Appellant lodged this appeal. An Amended Notice of Appeal on seven grounds of appeal was filed on 22/8/2016 but deemed properly filed and served on 21/3/2017. In compliance with the Rules of this Court, the parties filed Briefs of Argument. The Appellant’s Brief, which was settled by Chief S.T. Yenge, was filed on 22/8/2016 but deemed properly filed and served on 21/3/2017. The Respondent’s Brief, settled by M.I. Fiase, Esq., Principal State Counsel, Ministry of Justice, Benue State, was filed on 9/5/2019 but deemed properly filed and served on 17/3/2020. The Appellant also filed a Reply Brief on 23/5/2019 but deemed properly filed and served on 17/3/2020. At the hearing of the appeal on 17/3/2020, the Briefs were adopted by Chief Yenge and Mr. Fiase for the Appellant and the Respondent, respectively.

The Appellant, out of six grounds of appeal, distilled two issues for determination as follows:
1. Whether the High Court of Benue State sitting in Sankera locality in Ukum Local Government Area, notwithstanding the presence of a High Court sitting in Gboko and the absence of proper parties had the territorial/substantive jurisdictional competence to have tried, convicted and sentenced for the offences allegedly committed in Gboko locality, Gboko Local Government Area without the direction/fiat of the Chief Judge of Benue State.( Distilled from Grounds 3)
2. Whether the Prosecution had successfully discharged the burden of proof beyond reasonable doubt warranting the conviction of the Appellant for the alleged offences by the trial Court. (Distilled from Grounds 1, 2, 4, 5 & 6)

The Respondent adopted these Issues, which I shall also adopt in determination of this appeal.

Issue 1
The Appellant’s trial had commenced before the trial Judge presiding at the lower Court in Gboko Division. Before the conclusion of trial, the learned trial Judge was transferred from Gboko Division to Sankera

Division. The Appellant contended that the learned trial Judge suomotu transferred the case to Sankera Division without the direction or fiat of the Chief Judge of Benue State. None of the ingredients of the offences alleged took place in Sankera, which was outside the local jurisdiction of the alleged scene of crimes. Courts are usually not seized of matters that occur outside their territory. It was argued that where the ingredients of an offence occur outside the territorial jurisdiction of the trial Court, the trial Court will not assume jurisdiction over same for lack of jurisdiction. There can be no question of waiver in such a situation. It was submitted that the powers to transfer any case within a Court is vested in the Chief judge of the Court, no Judge sitting in a division has been vested with such power. Therefore, for every transfer to be valid in law it must be sanctioned by the Chief Judge Authorities relied on included: Adebayo v State (2013) All FWLR (Pt.693) 1960 at 1977; Akinwunmi v. State (2013) All FWLR (Pt.690) 1369 at 1389; Scott Emuakpor v. Ehiwario (2006) All FWLR (Pt.296)904 at 909; Patil v F.R.N (2015) All FWLR (Pt.775) 228 at 245.

It was therefore submitted that Sankera High Court which convicted the Appellant lacked the territorial jurisdiction to convict the Appellant of the alleged offences that occurred or took place in Gboko locality, when there are High Courts in Gboko.

Learned Counsel for the Appellant further argued that the Respondent was not a juristic person and therefore lacked the statutory competence or legal capacity to prosecute the Appellant. In effect, that the proper parties were not before the trial Court, hence, the trial Court was not properly constituted. It was argued that the word State in Section 318 of Constitution of the Federal Republic of Nigeria 1999, as amended, does not include the Respondent in this appeal. Benue State or any other state of the Federation, including the Federal Republic of Nigeria, are creations of the Constitution and are legal personalities but the Respondent in this appeal has no statutory or constitutional recognition, hence it is a non-juristic person without any capacity to sue and be sued. The Respondent not being a juristic person, cannot legally delegate any power to prosecute matters against the Appellant, citing and

relying on N.A.O.C. Ltd v. Janyim (Nig) Ltd (2015) All FWLR (Pt.785) 366 at 386. The Court was urged to resolve this Issue in favour of the Appellant.

For the Respondent, it was argued that the Benue State High Court had only one Judicial Division, any State High Court seized of any matter that occurred in any part of Benue State, has the jurisdictional competence to try it. Section 3(1), (2) of the High Court Law, CAP. 75, (Revised Edition; Laws of Benue State 2004 was cited and relied on. It was further submitted that the Appellant had consented to the transfer of this case from High Court 2, Gboko to High Court, Sankera, at proceedings on 11/03/2013 and on 26/04/2013. The transfer of the case was therefore not done suomotu by the trial judge as contended by the Appellants. Reliance was also placed on Akpa v. State (2010) 8 LRCNCC 70 at 92, wherein Ogbuagu JSC (of blessed memory) said:
“It is settled law that if a procedure adopted in trial Court is consented to by a party, he cannot complain or be heard to complain afterwards nor on appeal, that the procedure was irregular”

The case of Akhiwu v. Principle Lotteries Officer, Mid-West State

(1972) 1 ALL NLR 229 was also relied on.

It was further argued that the High Court Gboko, Benue State had the powers under Section 147 of the Criminal Procedure Code, CAP. 51 (Revised Edition), Laws of Benue State, 2004, in community reading with Section 69(3) of the High Court Law (Supra), to transfer this case to High Court, Sankera. The High Court, Sankera had the jurisdictional competence to have tried, concluded convicted and sentenced the Appellants. The authorities cited by the Respondent, were not applicable in the instant case.

On the contention that the Respondent was not a juristic person, it was submitted that the Respondent, does not lack the statutorily recognized competence or legal personality to prosecute the Appellant. A crime against humanity is crime against the State or the society. The word State as defined by the Supreme Court in the case of Att.-Gen., Lagos State v. Att.-Gen., Federation and 35 others (2003) FWLR. (Part 366) 909 at 997. 998; Att.-Gen., Ondo State v. Att.-Gen., Federation (2002) FWLR (Pt. 111) 1972 was cited and relied on. The State is the creation of the Law and a juristic person.

It was submitted, assuming without conceding, that where an action was commenced by an irregular procedure, a party who did not complain, but took part therein cannot later be heard to complain of and take advantage of the irregularity. Reliance was placed on Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619. “The State” is a proper party with legal personality and has the prosecutorial powers to activate the jurisdiction of a competent Court of law. The authority of N.A.O.C. Ltd. v. Janyim, Nig. Ltd (2015) ALL FWLR (Pt. 785) cited by the Appellants is inapplicable to this appeal. The Court was urged to resolve the issue in favour of the Respondent.

The Appellant in the Reply Brief mainly rehashed his earlier arguments.

Resolution
Ideally, a trial Judge before whom the hearing of a matter commences, ought to conclude the trial and determine same. However, this may not always be the case. Hearing may be truncated for various reasons, which include the transfer of the trial Judge from the judicial division where hearing had commenced to another division. It is important to note that only one High Court exists in a State; Section 270 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Judicial Divisions may be created in the High Court for administrative convenience or purposes. See Section 2, Section 65, and Section 3 (1) and (2) of the High Court Law of Benue State, Cap 75, Laws of Benue State, 2004. See also: SPDC (Nig) Ltd v. Edamkue & Ors (2009) LPELR-3048 (SC).
One of the issues the Supreme Court examined in Egbo & Ors v. Agbara & Ors (1997) LPELR-1036 (SC) was whether the trial Judge, who had been transferred to Port Harcourt was competent to continue to hear the suit up to final judgment. The provisions of the law which were under consideration therein were Sections 46 and 47 of the High Court Law (Cap. 61, Laws of Eastern Nigeria. 1963) which, at the material time, was applicable to the Rivers State of Nigeria. Sections 46(1) and 47(1) of the said High Court Law provided as follows:
46(1) A Judge may by order under his hand and the seal of the Court at any time or at any stage of the proceedings before final judgment and either with or without application from any of the parties thereto transfer any cause or matter before him to a Magistrate’s

Court or to a Judge in the same or any other Judicial Division.
47(1) The Chief Judge may by Order under his hand and the seal of the Court or at any time or stage of the proceedings before final judgment and either with or without application from any of the parties thereto, transfer any cause or matter before a Judge to any other Judge.
Upon consideration of these provisions, the Supreme Court, per Iguh, JSC said, pages 22 – 25 of the E-Report:
“The second aspect of the question under consideration concerns whether the learned trial Judge Dagogo-Manuel, J. had jurisdiction after his transfer to Port Harcourt to continue with the hearing of the case in his new judicial division. In this regard, attention must be drawn to Sections 234 and 236(1) of the Constitution of the Federal Republic of Nigeria. 1979. These provide as follows: –
“234 (1) There shall be a High Court for each State of the Federation.
(2) The High Court of a State shall consist of –
(a) a Chief Judge of the High Court of the State;
and
(b) such number of Judges of the High Court as may be prescribed by a Law of

the House of Assembly of the State”
“S 236 (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person”.
The Constitution therefore established one single High Court for each State of the Federation, including the Rivers State of Nigeria with equal common and unlimited jurisdiction to commence, continue and conclude any case validly broughtbefore it. See: S.O. Ukpai v. U.O. Okoro&Ors.(1983) 2 SCNLR 38O: (1983) 11 SC 231 at 264.
Accordingly, there is no more than that one High Court for each State of the Federation. See also Merchants Bank of Africa v. Owoniboys Tech. Services Ltd. (1994) 8 NWLR (Pt.365) 705 at 715-716. There are however the provisions of

Section 41 of the said High Court Law and Order 7 of the High Court Ruleswhich “for the more Convenient despatch of business” confer power on the Governor to divide the State into Judicial Divisions whereupon the Chief Judge may direct one or more judges to sit in each such Division. As already pointed out, the Rivers State was so divided. However, therebeing only one High Court for that State with jurisdiction throughout the State, I cannot accept that Dagogo-Manuel, J. who at all material times was a Judge of that State had no jurisdiction to continue the hearing of a case validly filed in that State and the hearing of which he commenced in one Judicial Division of the State and concluded in another Judicial Division of the same State. See to M.S. Aliyu v. M.N. Ibrahim & Ors. (1992) 7 NWLR (Pt. 253) 361 at 370. A Judge of a State High Court having jurisdiction to sit in one of the Judicial Divisions of that State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State. I also agree that issues of Judicial Divisions, transfer order and like matters being strictly

administrative, do not go to jurisdiction. Accordingly, issues I to 4 must be resolved against the appellants.”
(Emphasis mine).
Now, I am not unmindful of the fact that the High Court Law of Benue State, 2004 does not have similar provisions as found in Section 46 (1) of the High Court Law (Cap. 61, Laws of Eastern Nigeria. 1963). Notwithstanding, by a community reading of Section 270(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and Section 3 (1) and (2) of the High Court Law of Benue State, 2004, only one High Court of Justice exists in Benue State, which, by virtue of Section 2 of the High Court of Benue State Law, 2004, is divided into divisions. These divisions are not separate or distinct High Courts but rather are branches of the same High Court. Judicial divisions are, in the main, created for administrative purposes; SPDC (Nig) Ltd v. Edamkue & Ors (supra). By the provisions ofSection 29 of the High Court of Benue Law, 2004, the High Court, in the exercise of its jurisdiction, is empowered to completely and finally determine, as far as possible, all matters in controversy between

parties.
It is important to note that generally, issues arising from administrative acts of presiding Judges of the High Court, even if irregular, do not, without more, impugn the jurisdiction of the Court. I am fortified in this view by the pronouncement of the Apex Court, per Iguh, JSC inEgbo & Ors v. Agbara & Ors (supra) at pages 21 – 22 of the E-Report, thus:
“In my view, whether or not the transfer is under seal is a mere procedural or administrative matter which may not ipso facto invalidate the order of transfer itself. In this regard, it ought to be remembered that it is not every irregularity that automatically nullifies an entire proceeding, particularly where the irregularity did not in any way materially affect the merits of the case, or occasion a miscarriage of justice or where, in any case, it is much too late in the day for a party to complain aboutsuch irregularity. See: Chief Okumagha Eboh & Ors. v. Akpotu (1968) 1 All NLR 220 at 224 and 225; Anyaehu Ojiegbe & Ors. v. Gabriel Okwaranyia & Ors. (1962) 2 SCNLR 358; (1962) 1 All NLR 605 at 608; Kossen (Nig.) Ltd. & Anor v. Savannah Bank of Nig. Ltd

(1995) 9 NWLR (Pt.420) 439 at 451-452.”
See also: Olaniyan v Oyewole (2007) LPELR – 8694 (CA), where this Court, per Ogunwumiju, J.C.A., at pages 4-6 of the E-Report, said:
“I agree with learned Respondents’ Counsel that parties are bound by the records of the Court. There is nothing at all on the face of the record to show that at the time the ruling was delivered, the learned trial Judge had been transferred from one Judicial Division to another. This Court as an appellate Court is bound by the record of proceedings before it and cannot depart from it on the ipsi dixit of counselor speculation. Sommer v. FHA (1992) 1 NWLR Pt. 219 Pg. 548. Secondly, even if it were so, such an event would not result in the reversal of the ruling of the Court. There is only one High Court in Kwara State by virtue of Section 3 (1) & (2) of the High Court Law Cap. 67 Laws of Kwara State which states as follows: Section 3-(1) there shall be established a High Court of Justice of the State. (2) the name of such Court shall be the High Court shall consist of not less than two other Judges.” The decided authorities are to the effect that there is only one

High Court in each state, the creation of Judicial Divisions is for administrative convenience to enable the wheels, of justice run more smoothly. The divisions are not separate or distinct but rather branches of the same High Court. See Egbo v. Laguma (1988) 3 NWLR Pt. 80 Pg. 109; Qua Steel v. Bassey (1992) 5 NWLR, Pt. 239 Pg. 67; Merchant Bank of Africa v. Owoniboys Technical Services (1994) 8 NWLR Pt. 365 Pg. 705 at 716 -5; Aliyu v. Ibrahim (1992) 7 NWLR Pt. 253 Pg. 361; Ogigie v. Obiyan (1997) 10 SCNJ 1; Onagoruwa v. I.G. (1991) 5 NWLR Pt. 193 Pg. 593. Even without a specific fiat from the Hon. Chief Judge of the State, the learned trial Judge can deliver the ruling after he was transferred to another Judicial Division. There is no provision in the High Court Law or Rules of Court preventing him from doing so. The point has to be made yet again that matters of transfer orders, Judicial Divisions and fiat etc being strictly administrative, do not go to jurisdiction and therefore a judge of a Judicial Division of the State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the

same State. See Egbo v. Agbara (1997) 1 SCNJ 91 at Pg. 107.”
(Emphasis mine).
The Record of Appeal reveals that after the proceedings of 18/1/2013, P.T. Kwahar, J. became the Presiding Judge in the High Court, Gboko, where the Appellant was facing trial. At page 71 of the Record, proceedings for 11/3/2013 and 26/4/2013 were transcribed as follows:
“CORAM: JUSTICE KWAHAR P.T. JUDGE
Accused present.
D.A. Mbaulu Esq. for the State S.S.C.
Mbaulu Esq.: M.I. Fiase Esq. and A.G. Ayua Esq. we agreed that since the case has gone has gone to defence stage it should be transferred to your learned brother.
Court: My brother Judge shall continue with this case.
To judgment since it had reached defence and both counsel have also agreed that for expeditious hearing the case be continued by my learned brother Kpochi J. Adjourned to 26/4/2013 for defence.
P.T. Kwahar
Judge
11/3/2013”
“26/4/2013
Accuseds (sic) present.
M.I. Fiase PSC with I. O. Onuh State counsel for the state
A.G. AyusEsq for accuseds(sic)
Fiase Esq. We have agreed under Section 147 of C.P.C. that the case

be transferred to High Court Sankera.
AyuaEsq: That is the position.
Court: This case is transferred to High Court Sankera under Section 147 of the CPC. to be mentioned before my brother
Judge on 27/5/2013.
P.T. Kwahar
Judge
26/4/2013”
On the next date on record, 27/5/2013, the matter was continued for defence before W. I. Kpochi, J.
Section 147 of the Criminal Procedure Code, Laws of Benue State, 2004, provides as follows:
(1) If an offence of which a Court takes cognizance ought properly or more conveniently to be tried by another Court, the said Court taking cognizance shall send the case to such other Court for trial.
Without going into a superfluous enquiry as to whether the above provisions were really relevant or not, the proceedings before the lower Court sitting at Gboko on 11/3/2013 and 26/4/2013 clearly reveal that respective Counsel for the Appellant and the Respondent unambiguously agreed and applied to the lower Court presided over by P. T. Kwahar, J., to have the matter pending in Gboko division of the lower Court as Charge No: GHC/13c/2010, transferred to Sankera division to

be heard to conclusion by W. I. Kpochi, J., who had been presiding in Gboko before his transfer to Sankera division of the lower Court. The application for transfer was granted and the said GHC/13c/2010 became Charge No SHC/5c/2013. The application for transfer and the transfer to Sankera were therefore done within the ambit of the law. The decision of Patil v FRN (supra) relied upon by the Appellant and which dealt with peculiar rules of the Federal High Court is not applicable to the facts of this case.
I cannot resist the observation that this issue raised by the Appellant’s Counsel is of the genre of futile issues that needlessly dissipate scarce judicial time and energy. Assuming there was any irregularity in the transfer of the pending matter to Sankera division, the Appellant, through his Counsel, applied for it and registered no protest thereto. In my firm view, the same Appellant cannot now be heard, having acquiesced in and fully participated in the proceedings upon the said transfer to judgment, to complain against the said order of transfer; Egbo & Ors v. Agbara & Ors (supra) at page 22 of the E-Report. See also SPDC (Nig) Ltd v.Edamkue & Ors

(supra) at pages 31 – 32 of the E-Report where the Apex Court, per Ogbuagu, JSC said:
“If a counsel or party, treats a document, or procedure or matter, as admissible, or regular etc, then he cannot be heard or be at liberty, to object or complain later or before an Appellate Court.”
See also: Akpa v. State (2008) LPELR-368(SC); Habibu v. State (2018) LPELR-44722(CA); Hassan v. Gwani (2014) LPELR-24594(CA).
Section 318 of the 1999 Constitution, as amended defines “State” when used otherwise than in relation to one of the component parts of the Federation, to include government. In further explanation of the word State as found in Section 318, the Supreme Court, per Mahmud Mohammed JSC ( as he then was) inAG Kano State v. AG Federation (2007) LPELR-618 (SC) relied on the earlier decision of the Supreme Court in Attorney-General of the Federation v. Attorney-General of Imo State (1983) 4 NCLR 178 as follows:
“…in the case of Attorney-General of the Federation v. Attorney-General of Imo State (1983) 4 NCLR 178 where Bello, JSC (as he then was of blessed memory) defined the word

“Federation” in his judgment at pages 193-194 where he said:-
“It now remains to consider the crucial question, which has never been decided by this Court, as to what is ‘Federation’ and ‘State’ within the ambit of Section 212 of the Constitution … ‘State’ when used otherwise than in relation to one of the component parts of the Federation includes government… ‘government’ includes the Government of the Federation, or of any State or of a Local Government Council or any person who exercises power or authority on its behalf…”
(Emphasis mine).
See also: Attorney General of Lagos State v. Attorney General of the Federation & Ors (2014) LPELR-22701 (SC).
The government of a State acts on behalf of the people and governs the people according to the law. Although artificial, the State has the legal personality to perform its duties and responsibilities within the ambit of the law. Generally, all crime is against the state or government, insofar as it disturbs the public order and tranquility. It follows that when there is a breach of the law, it is the responsibility of government to enforce the law by prosecuting the

wrongdoer to ensure justice is served, to deter people from committing crimes; and, to assuage the victim. The Respondent is therefore a juristic person and can delegate prosecutorial powers to its agents. See Section 193, 195 of the 1999 Constitution as amended. See also: Onyuike v. The People of Lagos State & Ors (2013) LPELR-24809 (CA). The decision in NAOC Ltd v Janyim (Nig) Ltd (supra) relied upon by the Appellant is inapplicable herein.

I see no merit in the complaints raised in this issue. Issue 1 is therefore resolved against the Appellant.

Issue 2
Referring the Court to the provisions of Section 135 of the Evidence Act, 2011, it was submitted for the Appellant that the burden upon the prosecution is to prove its case beyond reasonable doubt. There must be sufficient evidence before the Court, establishing the ingredients of the alleged offences, failing which, no conviction can be validly grounded. It was submitted that the Respondent had failed to prove the criminal allegations leveled against the Appellant. The conviction and sentence of the Appellant was unwarranted, unreasonable and perverse, considering the peculiar

facts and circumstances of this case. It was submitted that the case of the prosecution was overwhelmed with doubts and speculations. Learned Counsel reviewed the evidence adduced by the prosecution and the conclusion of the trial Court and submitted that there was no conclusive evidence before the trial Court to establish the guilt of the Appellant beyond reasonable doubt, as required in criminal trials. Authorities cited included: FRN v. Usman (2012) ALL FWLR (Pt.632) 1639 at 1659; Abdurauf v. State (2008) ALL FWLR (Pt.410) 709; Ikaria v. The State (2012)12 SCNJ 325 at 353; Al-Hassani v. State (2011) ALL FWLR (Pt. 567)747 at 766. The learned trial Judge observed that the evidence adduced by the prosecution was foggy. It was submitted, relying on Oforlete v. The State (2000) 7 SCNJ 162 at 186 that the learned trial judge having found that “what or who killed the deceased is foggy” ought to have discharged and acquitted the Appellant. Rather the learned trial judge proceeded to convict the Appellant when he was not shown to have been linked to the killing of the deceased. The Court was urged to allow the appeal, set aside the decision of the trial Court,

discharge and acquit the Appellant.

For the Respondent, it was conceded that the prosecution had the duty to prove beyond reasonable doubt the guilt of an accused person. However, the duty on the prosecution does not mean proof beyond shadow of doubt, relying on Ochemaje v. The State (2009) 168 LRCN 97 at 131, Orji v. State (2010) 8 LRCNCC 145 at 160. It was submitted that the direct positive evidence of PW1, PW2 who were eye witnesses taken together with the corroborative evidence of PW3, PW4 and Exhibits A1 – A4 and B in this case proved who and what killed the deceased AkumbaIkon beyond reasonable doubt. The evidence showed that the Appellant had a cutlass while the 1st accused person had an axe. The 3rd accused person had a big stick. They, all members of the same family, acting in concert towards a common end, pursued late Akumba Ikon, and inflicted injuries on his body with the weapons. They continued in their pursuit of the deceased across the stream and killed him there on the spot. It was submitted that the best evidence to prove commission of crime was by the person who saw, heard and or participated or was affected by it all; relying on

Buhari v. Obasanjo (2005) 130. LRCN 1952 at 1979. Shumo v. the State (2012) 10 LRCNCC I at 26. The quality of evidence by prosecution before trial Court proved the guilt of the Appellants beyond reasonable doubt.

It was submitted further that criminal justice is a matter of substance and not one of technicalities thus it admits of inconsequential inadequacies. There were no material contradictions in the evidence adduced. PW1 and PW2 who were eye witnesses remained substantially and materially consistent in their testimonies and deserved to be believed. Reliance was placed on Okaroh Michael v. The State (1990) 1 NWLR (Pt.125) 34 at 36; Bakare v. The State (1987) 1 NWLR (Pt. 52) 579 at 586; Shumo v. the State (2012) 10 LRCNCC 1 at 18.

It was conceded that apart from Appellant, several other persons pursued the deceased. However, the consequence of a criminal act committed by two or more persons acting in concert and furtherance of their common intention, is that each and every one of them shall share in the criminal responsibility. The decisions in Mimven Miri & Ors. v. The State (1968) 1 All NLR 55; Obosi v. the State (1965) NMLR 112; Odigiji v. The State

(1976) NSCC (Volume 10) 10 Page 335; Kala Alagba v. R (1950) 19 NLR 129; Nwali & Ors. v. The State (1971) I NMLR 79; Dabo Fulani &Ors. v. Borno N.A. (1966)1 ALL NLR 260, Idiok v. State (2006 39 WRN 46 at 67 -68; Alarape & Ors. v. the State (2001) 5 NSCQR 451 at 474-475 were cited and relied on.

It was finally submitted that prosecution had proved her case beyond reasonable doubt. The Court was urged to dismiss the appeal.

Resolution
It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rests upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. Indeed, he need say no word in his defence. The burden of proof in a criminal trial never shifts from the prosecution under our law. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended

provides:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
See:Williams v State (1992) LPELR-3492(SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta (2017) LPELR-41386(SC). The provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 are also in line with the protection accorded an accused person, as follows:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to

the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty – per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. Proof beyond reasonable doubt also does not mean proof beyond the shadow of a doubt – per Denning J. in the case ofMiller v. Minister of Pensions 1947 2 All E.R. page 372 at 373, cited with approval by A. M. Mukhtar, JSC (as he then was) in John Agbo v. State (2006) 1 S.C . (PT. II) 73. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152 so aptly proclaimed:
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or

possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
Proof beyond reasonable doubt is the highest standard of proof that must be met in any trial. Contrary to the lower burden of proof placed on a claimant in civil litigation, which is proof by a preponderance of the evidence or balance of probabilities or proof by clear and convincing evidence, the standard of proof placed on the prosecution in a criminal trial is proof beyond reasonable doubt, which demands that no other logical explanation can be derived from the facts, except that the defendant committed the crime. See: Adekoya v. State (2017) LPELR-41564 (SC); Uche v The State (2015) LPELR-24693 (SC); Mbachu v. State (2018) LPELR-45163 (SC); Bassey v. State (2012)

LPELR-7813 (SC). Proof beyond reasonable doubt therefore means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness;Abokokuyanro v. State (2016) LPELR-40107 (SC); Bassey v State (2019) LPELR-46910 (SC). When there is proof beyond reasonable doubt, the presumption that a person is innocent until proven guilty is routed or displaced. It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged. On this issue, the Apex Court, per Obaseki, JSC in Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333 (SC) at pages 13-14, said:
“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said:
“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F & F 383 at 384 where the learned Baron

said:-
In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.”
(Emphasis mine).

(1986) 2 NWLR (Pt. 25) 673 and Mbolo v. The Queen (1964) NMLR 49 at 52.
2. Circumstantial evidence.
A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. Again, in Mustapha Mohammed v. State (supra), the Supreme Court, per Niki Tobi, JSC said:
“For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person. See The State v. Ifu (1964) 8 ENLR 28. Before an accused person can be convicted for murder on circumstantial evidence, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. See Esai v. The State (1976) 11 SC 39. A conviction for murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics. See

The Queen v. Agwo (1956-84) 10 SCND 35. A Court cannot convict on circumstantial evidence, especially in a case of murder where such evidence points in more than one direction. See The Queen v. Iromachi (1956-84) 10 SCNJ 34.”
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See also: Danjuma v. The State (2019) LPELR-47037(SC); Omoregie v. State (2017) LPELR-42466(SC); Kolade v. State (2017) LPELR-42362(SC); Giki v State (2018) LPELR-43604(SC); Ime David Idiok v. The State (2008) 4-5 S. C. (Pt. I) 84; Igabele v. State (supra); Afolalu v State (2010) 6-7 MJSC 187; Emeka v. State (2001) 88 LRCN 234.

59.

The fact that the deceased died was not in issue. The fact that he was beaten and attacked with sharp objects till he died is not in issue.PW3 identified the corpse of the deceased to the police.The medical officer in charge of the Gboko General Hospital, one Dr. Ande, certified the deceased as dead. Exhibit B was the postmortem examination report prepared by Dr.

Ande but tendered by PW4, the Investigating Police Officer.

The crucial question now is whether the death of the deceased resulted from the act of the Appellant. In proof of this element of the offence, the Respondent relied on the oral evidence of PW1 and PW2, wives of the deceased, who were described by the learned trial Judge, in the judgment on appeal, as eyewitnesses that saw and watched the killing the deceased. The evidence of PW3, which was more in the nature of circumstantial evidence was also relied upon. I shall examine the evidence of PW3 anon.

PW1, Mrs. Rachel Akumba, one of the wives of the deceased, testified as follows, page 57 of the Record of Appeal:
“On 11-3-2010 late AkumbaIkon went to the house of ZakiAzendaYaji to find out the time they were to leave that morning or day to Makurdi to attend the case they had at Makurdi.
I saw late AkumbaIkon go to the house of AzendaYaji that morning and he had nothing in his hands.
Before this date these accused persons and others at large had intimidated the late AkumbaIkon that they will kill him so he reported the matter to the police and investigation was

going on at Makurdi at the State C.I.D. so Mr. AkumbaIkon went to ZakiAzendaYaji to find out the time they were to leave for Makurdi that morning. I and Mrs. Fateman were at our compound and we heard some noise at the road and we stood up and saw the late Mr. AkumbaIkon running while the 1st, 2nd, 3rd, 4th accused persons and others at large were pursuing late Mr. AkumbaIkon. I don’t know where IkonUle is now but my late husband Mr. AkumbaIkon is the son of IkonUle…
The accused persons were armed with dangerous weapons like cutlasses, axes and big sticks. The 1st accused person had an axe, the 2nd accused person had a cutlass, the 3rd accused person had a big stick while the 4th accused person was armed with a cutlass.
As the late AkumbaIkon branched into our compound the 1st accused person charged the others not to be afraid but to enter even into our compound.
I saw this incident at a very close range of about two metres or so i.e. just as outside this Court hall.
The late AkumbaIkon was not armed. He entered our house but he had to run out again when the 1st accused person charged that he should be pursued into

the house and taken out.
The late AkumbaIkon continued to run away and I followed as the accused persons ran after him. Mr. Aondoyila Kum turned and inflicted a cutlass cut on my head and I fell down and rose up again and followed to a point across the stream where the accused persons caught Mr. AkumbaIkon and beat him and he fell down…
I was about ten metres away where I saw the accused persons beating my late husband on the ground.”

Under cross examination, PW1 named 16 different persons, as the people who chased after her husband on the morning of the incident, which list included the names of the Appellant and the other three co-accused persons

PW2, Mrs. Fateman Akumba, the deceased’s other wife, testified that, page 60 of the Record of Appeal:
“…I saw the accused persons and others at large pursuing the late AkumbaIkon. Mr. AkumbaIkon was not armed with any weapons on his hands.
The 1st accused person had an axe, the 3rd accused had a big stick, the 2nd accused person had a cutlass, the 4th accused person had a cutlass.
They chased late AkumbaIkon into our compound and

house and the 1st accused person told the others to go into the house and bring Mr. AkumbaIkon out. On hearing this Mr. AkumbaIkon rushed out and ran towards the bush at the nearby stream while the accused persons pursued him and inflicted several injuries with the axes and other weapons.
I followed behind as the accused persons chased my late husband.
The late AkumbaIkon ran across the stream. I pleaded with the accused persons to leave my late husband…
They pursued Mr. AkumbaIkon across the stream and killed him.”
Under cross examination, PW2 said:
“I was afraid or scared when I witnessed many people chasing my late husband while they were armed with weapons. There are about four compounds within the vicinity of our compound. It was the other people in the other compounds that were chasing my husband and I cried and shouted pleading with them.”

She also denied that her husband was armed with any dangerous weapon such as a knife, cutlass or arrows on the day of the incident.

From the evidence of PW1 and PW2, one can safely say that they indeed witnessed several persons, who they

allege included the Appellant as well as the 1st and 3rd accused persons, and, who were armed with weapons, chasing after the deceased and hitting him. Neither PW1 nor PW2 testified that they actually saw or identified who killed the deceased. To this extent, I would agree with the Appellant’s Counsel that PW1 and PW2 were not eye witnesses to the murder of the deceased. The learned trial Judge was in error to have described them as eye witnesses. The question is: were the Appellant and the co-accused persons part of this crowd that appeared united in pursuit of an unholy agenda, and, were the Appellant and the co-accused persons responsible for the death blows the deceased received? The fact that the answers to these queries are not crystal-clear and unclouded was acknowledged by learned trial Judge thus, page 87 of the Record of Proceedings:
“What is foggy is what killed or who killed late Akumba Ikon.”

It is now to see whether the evidence adduced revealed who the assailants were.

The Appellant, DW2, was the 2nd accused person. He testified that, page 72 of the Record of Appeal:
“ On 11-3-2010 I went to

the stream in the morning to cut wood (sticks) for roofing my house. As I was coming back I met late Mr. AkumbaIkon along the road with a cutlass, bow, arrows and a knife. I greeted him and he asked me what I had in common with him. I said I had nothing in common with him. He then pushed the sticks I carried on my head to the ground and he inflicted a cutlass cut on my head and I started crying and the first accused person came to the place. The 3rd accused person also came there and I became unconscious and I regained consciousness at the General Hospital Gboko where I was place on admission and where the wounds on my head were stitched. Later in the evening I also noticed the pw1 too in the General Hospital Gboko.
I also saw the pw3 in the same hospital that evening. I also saw pw2 in the hospital. I also saw five policemen at the hospital and they arrested me and took me to the ‘A’ division police station Gboko.
I was later taken to the State CID Makurdi on the same date and I was detained in the police cell.”

DW1 was the 1st accused person. He testified that, page 69 of the Record of Appeal:
“ On the

said 11-3-2010 I was cutting fire wood beside (outskirt of) my compound at Mbatiav.
I heard some shout at the road and I dropped the axe I was using to cut fire wood and I went there and saw late Mr. Akumba Ikon armed with a cutlass, bow and arrows. He also tied a knife to his waist.
I saw the 2nd accused person on the ground with blood all over his brother (sic). I asked what happened but late Mr. AkumbaIkon said nothing. I then asked the 2nd accused person and he said it was the late AkumbaIkon that inflicted a cutlass cut on his head.
I held the 2nd accused person to stand up but the late Akumba Ikon menacingly came towards me with the cutlass and I raised up my hand to protect my head so he inflicted a deep cutlass cut on my hand which affected three of my fingers. I fell on the ground crying so the 3rd accused person came by and I told him that it was the late Akumba Ikon that inflicted a cutlass cut on my hand. As the 3rd accused person came towards me the late Akumba Ikon still came and inflicted a cutlass cut on his hand.
At this point many people came there so the late Akumba Ikon ran away.
At this point one Mr.

OrwuaIkon and Aondoyila Kum ran after late Mr. Akumba Ikon. A hireman who passed by took me to the Akpagher police state to lodge a report and I reported the matter and the police took me to a local clinic at Akpagher owned by Torkuma.
The local clinic at Akpagher refused to accept my case that it could not handle same so I was taken to the General Hospital Gboko where I was admitted and treated. I was on hospital bed till about 6 p.m. of the same day that the police came and arrested me. The police came in company of pw1, 2 and 3 and I was pointed at before the police arrested me and took me to the ‘A’ division police station. I was later taken to police headquarters Makurdi where I was detained.”

DW3 was the 3rd accused person. He said, page 73 of the Record of Appeal:
“ On 11-3-2010 I woke up in the morning and went to the nearby fadama where I made mud blocks for the purpose of burning same.
I carried some blocks to bring and put at the main road so that people will know that there are burnt bricks around there for sale.
As I approached the road I heard somebody crying and I rushed towards that

direction and saw the 2nd accused person on the ground with blood gushing out from his head. I also saw the first accused person with a cutlass cut on the hand also crying on the ground. I saw the late AkumbaIkon who stood there with a cutlass, bow and arrows and also with a knife tied to his waist.
I asked the 2nd accused person about what happened and as he was explaining the matter to me, the late AkumbaIkon also rushed at me and inflicted a cutlass cut on my left hand that has partially paralysed my last finger so that it does not bend again.
He inflicted a second cut on me when I asked him for the reason for his actions. I too fell on the ground and Mr. AkumbaIkon ran away. A motorcycle hire man came by and took the 2nd accused person and I to the police station Akpagher and the police from Akpagher took us to the General Hospital Gboko where I was treated and placed on admission.
Later in the evening the pw1, 2 and 3 brought police and I was arrested and taken to the ‘A’ division police station Gboko from where I was later taken to the state C.I.D. Makurdi.”

From the evidence of DW1, DW2 and DW3, they were

attacked and severely injured by the deceased. Several persons were attracted to the scene of the attack. After the attack on them, the deceased ran away and was pursued by the crowd. One of the persons attracted to the scene of the attack on DW1, DW2 and DW3 by the deceased was DW5, the wife of the 2nd accused person, DW2. She said, page 76 of the Record of Appeal:
“On 11-3-2010 I was at my husband’s compound at Mbatyav and I heard shouts from the road near our compound at about 7am.
I was inside the house so I came out and went to the place and I saw the 1st and 2nd accused persons on the ground.
I saw late AkumbaIkon at the place with a cutlass. The 3rd accused person was there trying to raise the 1st accused person from the ground.
Late AkumbaIkon also inflicted a cutlass cut on the 3rd accused person’s hand and the late AkumbaIkon started running away…
I called for help to no avail. I ran to the compound of Mr. Kum Ule and met Mrs, Mbaeren Kum washing plates outside. I told her. Mrs. Mbaeren Kum advised me to stop crying and that we should rather look for a motorcycle to take the wounded

people to hospital.
We took the wounded people to the hospital at Akpagher.”

DW6 was Mrs. Mbaeren Kum. She gave similar evidence, stating that when she responded to the cry for help by DW5, she saw DW1, DW2 and DW3 on the ground with wounds all over them. She also saw the deceased running away from the scene. Neither the evidence of DW5 nor of DW6 was discredited under cross examination.

DW1, DW2 and DW3 said they took a motorcycle hire to report the incident to the police at Akpagher. DW2 said that when the local clinic at Akpagher refused to admit him as it could not handle his case, the police took them to the General Hospital Gboko where they were treated and admitted. These accused persons were subsequently all arrested while still on admission in General Hospital Gboko upon identification by PW1, PW2 and PW3.

PW1 under cross examination admitted that the Appellant and the 2nd and 3rd co-accused persons were arrested at the General Hospital, Gboko where they were on admission. She however said she did not notice any wounds on them, page 59 of the Record of Appeal. Conversely, PW2 who admitted that the Appellant

as well as the 1st and 3rd accused persons were arrested while on admission at the General Hospital, Gboko, further admitted:
“I saw wounds on the bodies of the 1st, 2nd and 3rd accused persons when they were arrested at the General Hospital Gboko.”

Page 61 of the Record of Appeal. Both PW1 and PW2 denied that late Akumba Ikon was responsible for these injuries on DW1, DW2 and DW3. PW4, the IPO, admitted under cross examination that the Appellant as well as the 1st and 3rd accused persons told him that they had a quarrel with the deceased which resulted in a fight. The extrajudicial statements of the Appellant and the 1st and 3rd accused persons, Exhibits A1, A2 and A3, did not differ in any material substance from their evidence at the trial.

Now, it is important to note that there was no evidence adduced by the Respondent to contradict the testimony of the Appellant and the 1st and 3rd accused persons and of DW5 and DW6, who, in summary, said: (a) that the Appellant and the 1st and 3rd accused persons were attacked and injured by the deceased; (b) that they reported to the police at Akpagher; (c) that the police at

Akpagher took them for treatment but a local clinic owned by one Torkuma could not handle the treatment of the injuries; and, (d) that as a result, they were taken by the police at Akpagher to General Hospital Gboko and admitted thereat. It is surprising that even the police did not repudiate the evidence that the Appellant as well as the other co-accused persons had reported their attack by the deceased to the police at Akpagher; that they and were taken to General Hospital Gboko by the police and admitted thereat. The evidence is at one in the detail that the Appellant and the other accused persons were arrested from the General Hospital Gboko.

PW4 testified that he took over the case when the Appellant and the co-accused persons were handed over to him in Makurdi, after their arrest by the police in Gboko. Thus, there was no evidence to suggest that the Appellant as well as the 1st and 3rd accused persons sustained their injuries from some source other than from an attack by the deceased. The police did not appear to have investigated the source of the injuries reported to them. Further, none of the police officers from Akpagher or Gboko who took

the Appellant to the hospital for medical attention testified in this case. I agree with the Appellant’s Counsel that they were necessary witnesses. In Ogudo v. State (2011) LPELR-860 (SC), (2011) 12 SCNJ1, Rhodes-Vivour, JSC unequivocally said:
“A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. See State v. Nnolim (1994) 5 NWLR (pt. 345) p. 394. Furthermore, failure to call vital witness raises the presumption under Section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.”
Having failed to call as witnesses the police from Akpagher or to testify on the findings of any investigation conducted on the source of injuries to the Appellant, the Appellant’s evidence as to the cause of his injuries was not contradicted.

PW3 was the District Head of Mba-Anku in Gboko Local Government Area of Benue State. He testified that the deceased had lodged a complaint at the State CID, Makurdi against the

Appellant and the co-accused persons, as well as other persons at large that they had threatened to kill him. He had also made a statement to the police as a witness to corroborate the threat to the deceased. PW3 said that he was in his house on 11/3/2010, preparing to accompany late Akumba to State CID, Makurdi, when he heard about the incident from PW1. When he went to make a report to the police at Akpagher, he was informed that the incident had already been reported.

The evidence of PW3 simply corroborated the evidence of PW1 and PW2 that the late AkumbaIkon did not have a good relationship with his family. It is not in doubt that a murder may be committed by a person or persons who had earlier threatened to kill the deceased. However, such conclusion cannot be drawn in the absence of concrete proof.

I have already noted that the evidence of the Appellant and the co-accused persons that they sustained injuries when they were attacked by the deceased was not contradicted. The evidence that the Appellant and his co-accused persons reported this incident to the police at Akpagher and the police took them for treatment at General Hospital Gboko

was also not contradicted. The fact that they were arrested at the General Hospital Gboko, where they were treated and admitted, was also not in issue. To my mind, if I may borrow the language of the learned trial Judge, it is foggy whether the Appellant and his co-accused persons, who had been severely injured by the deceased, would have participated in his subsequent murder on the same day.

PW4 in evidence said, page 67 of the Record of Appeal:
“The record forwarded to us from “A” division police Gboko indicates that it was the pw.3 that reported this matter to the police. The report was verbal and he mentioned the names of the persons that beat Mr. AkumbaIkon to death and he called more names than the four accused persons in the dock.”

PW3 was not present at the locus crimins. He had testified that PW2 informed him of the incident and he came to the police with her. By this time, the Appellant and 1st and 3rd accused persons had already been taken to hospital for treatment. It is therefore not in evidence that the deceased was already dead at the time the Appellant and the other accused persons were admitted for treatment at General Hospital Gboko.

The Appellant and other accused persons were arrested virtually from their hospital beds, while other persons who were part of the attack on the deceased were at large. There would appear to be a ring of truth in the speculative opinion expressed by DW1 in Exhibit A1 as follows:
“I am saying that it was those that pursued Akumba and caught him at last that were responsible for his death.”

While the Court is prohibited from joining in the speculation, one thing that is, paradoxically, clear is that whether or not the Appellant and the other accused persons actually participated in the murder of the deceased is foggy. The fact of their involvement cannot be concluded with certainty.

Learned Counsel for the Appellant had expressed a concern that the sixteen persons specifically mentioned by PW1 and others at large who were seen pursuing the deceased were not arrested and the police made no further attempt to investigate the incident further. The Appellant and his brothers who were on admission because of the injuries inflicted on them that were the only persons eventually arrested

and arraigned in connection with the death of the deceased. I agree that the police were quite inept in its investigation of this incident. I have already observed that there is no evidence that the police investigated the source of the injuries of the Appellant. It was apparently easier for the police to simply arrest the Appellant and the other accused persons who were admitted in General Hospital Gboko on account of injuries sustained by them, which they allege followed an attack by the deceased. The police could certainly have done better. A conclusion that the Appellant was involved in the murder of the deceased therefore cannot be drawn with certainty.

The conviction of the Appellant for conspiracy to commit culpable homicide is also not grounded by the evidence adduced. Conspiracy as an offence is the agreement by two or more persons to door cause to be done an illegal act or legal act by illegal means;Ndozie v. The State (2016) LPELR-26067 (SC). The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed; Osareren v. FRN (2018) LPELR-43839(SC); Hassan v. The State (2016)

LPELR-42554 (SC). Conspiracy, as a result of the nature of the offence, is rarely proved by direct evidence but by circumstantial evidence and inference from certain proved acts; Omotola & Ors v. State (2009) LPELR-2663 (SC). In order to get conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. In convicting the Appellant and the other accused persons for conspiracy to commit culpable homicide, I am of the firm view that the conclusion of the learned trial Judge was mere speculation when he said, page 96 of the Record of appeal:
“I believe the testimony of the pw1 and pw2 concerning the demise of the deceased Akumba Ikon. Their evidence is amply supported by the pw3 and pw4 to the effect that the accused persons had earlier conspired to kill the deceased who earlier reported them to the police…
I hold the view that they (the accused persons) carried out their earlier threat to kill the deceased when they met him around their area or vicinity unarmed and they took advantage and killed the defenceless

deceased in cold blood.”

The point has been made that the evidence of PW3 simply corroborated the evidence of PW1 and PW2 to show that the late AkumbaIkon did not have a good relationship with his family. PW3 said in evidence that there was a threat to kill the deceased by the Appellant, the other accused persons and other persons at large. The nature or manner of the threat made or of the precise complaint made to the police were not in evidence. PW4 also said that a complaint was made by the deceased but he did not say that the police actually investigated the complaint. A threat to the life of the deceased by a group of persons, which is not the charge faced the Appellant in the instant case, does not translate to a conspiracy. Neither the evidence of PW3 nor PW4 can ground conviction for conspiracy to murder AkumbaIkon. In the instant appeal therefore, the offence of conspiracy was not proved.

I will reiterate that our explicit Constitutional provisions are unambiguous in the protection of the rights of an accused person. The provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; and, of

Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, have received judicial interpretation, some of which have already been relied on in this Judgment. See: Williams v State (supra); Abidoye v. FRN (supra) Commissioner of Police v. Amuta (supra). One undebatable consequence of these provisions is that until the allegation of the commission of a crime by an accused person is absolutely proved beyond reasonable doubt by the prosecution, the accused person must be presumed to be innocent of the crime.

In this light, the Court cannot unravel by speculation, evidence which is foggy or vague or conflicting in order to declare the guilt of an accused person. That would be akin to working from an answer to the question. Indeed, any fogginess or inconsistency in evidence adduced against an accused person ought to be resolved in his favour. It is well settled that when there are doubts created in the mind of the Court as to the culpability of the accused person, these doubts should be resolved in favour of the accused person; Federal Republic of Nigeria v. Mohammed Abubakar (2019) LPELR-46533(SC); Afolahan v. State (2017) LPELR-43825(SC); Oforlete v. State

(2000) LPELR-2270 (SC); Okonji v The State (1987) LPELR-2479 (SC). In Nwosu v State (1986) LPELR-2134 (SC) at page 20, the Noble Law Lord, Aniagolu, JSC eloquently put it this way:
“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made.It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.”
The underlying established consideration has always been that it is better for ten guilty men to escape justice than for an innocent man to be condemned unjustly; Shehu v. The State (2010) LPELR-3041 (SC). The Supreme Court, per Obaseki, JSC, in Saidu v The State (1982) LPELR-2977 (SC) at page 28-29, graphically proclaimed:
“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to

walk about in our streets and thread the Nigerian soil and breathe the Nigerian air as free and innocent men and women.”
In the instant appeal therefore, the foggy evidence with unfilled gaps had raised such queries that ought only to be resolved in favour of the Appellant. It is for the above considerations that I find I am unable to agree with the conclusions of the learned trial Judge on the conviction and sentence of the Appellant as well as the 1st and 2nd accused persons for the offences of conspiracy to commit culpable homicide and culpable homicide. I therefore resolve Issue 2 in favour of the Appellant.

This appeal thus succeeds in part and is hereby allowed. I therefore set aside the conviction and sentence of the Appellant for the offences of conspiracy to commit culpable homicide and culpable homicide contrary to Sections 97 and 222 of the Penal Code Law, CAP. 124, Revised Edition, Laws of Benue State 2004. In consequence, the Appellant is hereby discharged and acquitted.

IGNATIUS IGWE AGUBE, J.C.A.: I have privilege of reading in advance the lead judgment of my Lord, HON. JUSTICE O.A. OTISI, JCA and am in total

agreement with his reasoning and conclusion that this Appeal is meritorious and hereby succeeds. The yawning gaps in the totality of the evidence of the Prosecution created doubts as to the guilt of the Appellant and such doubts ought to be resolved in favour of the Appellant by the learned trial Judge.
In the recent case of Egbufor vs. The State (2019) 5 NWLR (Pt.1665) 260 at 275 paragraphs A-C per Kekere-Ekun, JSC; restated the position of the law that in criminal proceedings the Prosecution has the duty to prove the charge against the Accused person beyond reasonable doubt: Section 135 of the Evidence Act, 2011 was cited to further emphasize the trite law that the general burden of proof remains on the Prosecution throughout the trial and does not shift and that even if the Accused person pleads guilty to the charge, the Prosecution is not relieved of the burden of establishing his guilt beyond reasonable doubt.Woolmington vs. DPP (1935) A.C. 462; Igabele vs. The State (2006) 6 NWLR (Pt.975) 100; Abokokuyanro vs. The State (2016) 9 NWLR (Pt.1518) 520; Aigbadion vs. The State (2000) 7 NWLR (Pt.666) 686 at 704 paragraphs B-C and Ameh vs. The State

(1978) 6-7 SC 27, were all cited and relied upon in so holding.
Since the Prosecution failed to prove the guilt of the Appellant, I adopt all that my learned brother had said at pages 39 and 40 of his judgment and all the authorities relied upon to also hold that this Appeal succeeds in part and the Appellant is accordingly discharged and acquitted since the judgment/verdict of the learned trial Judge sentencing the Appellant to death is perverse and unjust.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion that the appeal has merit and should be allowed.

The trial of the appellant commenced before W.I. Kpochi, J, at the Gboko Judicial Division of the High Court of Benue State. At the defence stage of the trial, Kpochi, J., was transferred to the Sankera Division of the same High Court. The matter was called before the new Presiding Judge, Kwahar, J., and on 11/3/2013 and 26/4/2013 counsel for the appellant and the respondent expressed their agreement for the matter to be transferred by Kwahar, J., to Kpochi, J. for

continuation to judgment since it had reached the defence stage before his lordship. Kwahar, J., granted the prayer and transferred the matter to the Sankera Division of the Benue State High Court for continuation to judgment. There is no specific ground of appeal against the order of transfer and so it stands and cannot be interfered with by the Court. It is also binding on the parties including the appellant who therefore cannot raise any argument against it. It must be stressed that a specific finding or order of a Court can only be attacked on appeal by a specific ground of appeal against it. See Babatunde v. State (2014) 2 NWLR (Pt 1391) 289, 320. It cannot be attacked by means of a particular of a ground of appeal which does not directly attack the finding or order as in this instance. This is because a party cannot raise a ground of appeal in his particular to a ground of appeal. See Ushie v. Edet (2010) 6 NWLR (Pt 1190) 386, 401-402.

Again, having agreed to have the matter transferred to the Sankera Division of the High Court of Benue State and indeed giving a nod to the application for the transfer through his Counsel (A.G. Ayua, Esq.) the

appellant cannot be allowed to blow hot and cold by executing a volte-face to indirectly attack the order of transfer in this appeal.

There is credible, unchallenged and uncontroverted evidence that the deceased attacked and inflicted cutlass cuts on the appellant and his co-accused persons in the morning of 11/3/2010. The incident was reported at the Police Station, Akpagher and the Police at Akpogher took them to the General Hospital Gboko. There they were treated and admitted. It was while on admission that the PW1, PW2 and PW3 led Policemen to arrest them for the murder of the deceased, which event took place on the same 11/3/2010 at 9a:m, going by the evidence of PW1. In other words, the deceased attacked and inflicted wounds on the appellant at about 7am of 11/3/2010 and he was taken to the Police Station and from there to the General Hospital, Gboko where he was treated and admitted. The deceased was attacked and killed by a crowd at about 9a:m of the same day.

It is doubtful if the appellant was a part of the crowd that attacked and killed the deceased person. The doubt ought to have been resolved by the trial Court in favour of the

appellant. See Oforlete v. State (2000) LPELR-2270 (SC).

It is for the forgoing reasons and the more detailed reasons in the judgment of my learned brother that I too find merit in the appeal. I allow the same. I discharge and acquit the appellant.

Appearances:

Chief S.T. Yenge, Esq. For Appellant(s)

M.I. Fiase, Esq., Principal State Counsel, Ministry of Justice, Benue State For Respondent(s)