NANCY AIWUYOR v. THE STATE
(2018)LCN/11821(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/B/469CA/2016
RATIO
EVIDENCE: TO PROVE CHARGE OF MURDER
“In resolving issue one above, it is imperative to set the tone by referring to the case of ABOKOKUYANRO V. STATE (2011) ALL FWLR (PT. 597) 700 @ 719-720 Paras. B-A, where this Court quoted the words of Ogundare JSC in ADEPETU V. STATE (1998) 9 NWLR (PT. 565) 185 @ 207 to the effect that ‘the charge of murder is proved by circumstantial evidence notwithstanding the fact that neither the body, nor any trace of the body of the deceased had been found. That even when the accused made no confession, he could albeit be convicted and yet leave no ground for reasonable doubt’.” PER PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“It is imperative to note that the case at hand is based on circumstantial evidence. In UKORAH V. THE STATE 1977 4 SC 111, 1977 LPELR 3345 (sc) the Apex Court clearly reveals the fact that circumstantial evidence is probably the best evidence. It stated as follows:
”Circumstantial evidence is as good as, sometimes better than any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.”” PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
NANCY AIWUYOR Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice G.O. Imadegbelo of the High Court of Edo State, sitting at Abudu, delivered on 14/7/2016, wherein His Lordship convicted the Appellant and two other persons on a four count charge of conspiracy to commit child stealing, child stealing, conspiracy to commit murder and murder, punishable under Sections 516,324,371 and 319 (1) of the Criminal Code Cap. 48 Vol.11 of the Defunct Bendel State of Nigeria, 1976 now applicable to Edo State.
The facts briefly stated are as follows:
The Appellant who was the 3rd accused and two other persons were charged with the offences of conspiracy to commit child stealing, child stealing, conspiracy to commit murder and murder. The prosecution in a bid to prove its case called five witnesses, while each of the accused persons testified in his/her defence. The 2nd accused called two other witnesses.
PW1: Raphael Omoaghe is the younger brother of the husband of the 1st accused person. He is a farmer and lives at Erhibornibo village, Ehor, Edo State.
On 24/2/2009 he came back from the farm around 3pm and when he did not see Ifueko (missing child) he told the 1st accused who is the wife of his younger brother to look for her. When she could not find the little girl, he reported to the Odionwere of the community who advised him to report to the police. He reported to the police as advised, and the police gave him 24hours to look for the little girl.
He testified further that he went to report the matter to the 1st accused. The eldest sister of the 1st accused accompanied him home and questioned the 1st accused about the missing child. The 1st accused admitted that she took the child, and that she handed over the child to the 2nd accused. Under cross-examination, the witness stated that Ifueko was not stolen in his presence, and that the 1st accused admitted committing the offence before she was taken to the police. The statement of PW1 to the police was admitted as Exhibit A.
PW2 is Odumamawen Osayande who lives at No.8 Egioba Street Uhunmwode L.G.A., Edo State. He is a farmer and knows the accused persons, as well as the PW1. He testified that on 24/2/2009 he was in river Orhionmwon fetching water with his son when he heard the sound of a motor cycle, he raised up his head and saw the 2nd accused person and the Appellant. The Appellant waved at him and he waved back and continued his task of fetching water.
PW 3 is Stephen Omoaghe the husband of the 1st accused person and father of the missing child. He testified that on 24/2/2009 he went to farm and when he came back he asked the 1st accused to bring Ifueko to him. 1st accused then informed him that she had been looking for Ifueko. He raised an alarm upon hearing this but did not make any statement at the police.
PW4 is Omini Oyomo, a retired Assistant Superintendent of Police formerly attached to the State CID Benin City. He testified that he knew all the prosecution witnesses as well as the accused persons. He further testified that at about 5:30pm on 26th day of February, 2009 a case file of child stealing was transferred from Ehor Police Division along with the 1st and 2nd accused persons. The case was sent to his intelligence section for investigation. That the 1st and 2nd accused persons were cautioned in English Language and they made confessional statements. The 1st accused advised PW4 and his team that if they hurried to the bush, they would be on time to save the little girl. The 2nd accused also admitted part of what the 1st accused said.
PW4 testified further that on 27th day of February, 2009 the 1st accused in company of the 2nd accused took them to the bush in search of the little girl. That they combed the entire bush but found no trace of the little girl. Based on the partial confessional statement of the 2nd accused, PW4 and his team went to the house of the 2nd accused. That on getting there, the wife of the 2nd accused pleaded with the 2nd accused to tell them of the where about of the little girl. It was then that the 2nd accused said they should look for the Appellant, that if they got her the little girl would be found, and that he had handed over the child to the Appellant. PW4 deployed one of his men to the house of the Appellant but on getting there it was discovered that she had fled to Benin City.
PW4 further testified that the mother and relation of the Appellant came to his office to inform him that the Appellant had earlier lodged a complaint of threat to her life at Area Command, Ehor against the family of the victim.
The mother and relation of the Appellant promised to bring her to the State CID. On 1st day March, 2009 the mother of the Appellant took her to the State CID. There the 2nd accused identified the Appellant as the person to whom he handed over the child. The Appellant was then arrested and cautioned and she volunteered a statement. The statement of the Appellant was admitted as Exhibit ‘D’. PW4 concluded by stating that he investigated the complaint of threat to life, as well as the alibi put up by the Appellant to no avail.
That the confessional statements of the accused persons which were obtained through PW4 were admitted in evidence after a trial within trial as Exhibits ‘B1’, ‘B2’, ‘C1’, ‘C2’, ‘C3’ and ‘D’ respectively. PW4 was also cross examined by the defence counsel.
PW5 is Oghogho Ibhakoanu, the mother of Ifueko, the missing child. She testified that she was separated from PW3 which necessitated his PW3 living with Ifueko (the missing child). She also stated that she lived in Benin City and had not visited her little girl in the last two years before she was informed that the girl was missing.
On their part, the Appellant and her co-accused persons all testified in their defence. The 1st accused testified as DW1, the 2nd accused as DW2, his witnesses (Monday Ogieva and Friday Agbonare) testified as DW3 and DW4 respectively while the Appellant testified as DW5. The accused persons and their witnesses essentially all denied committing the offences with which they were charged.
At the conclusion of trial, counsel on both sides addressed the Court by adopting their respective addresses. In a considered judgment delivered on 14th day of July, 2016 the trial judge convicted the Appellant and the two other accused persons as charged and sentenced them to 14years imprisonment for child stealing and to death for murder.
Dissatisfied with her conviction, the Appellant appealed to this Court via a Notice of Appeal filed on 27th day of July, 2016, and with leave of this Court the Appellant’s Amended Notice of Appeal was deemed as properly filed and served on 5th day of January, 2017. The Appellant raised the following grounds of appeal which are hereby reproduced without particulars:
GROUND 1
That the decision of the learned trial judge is unwarranted, unreasonable having regard to the evidence led before it.
GROUND 2
That the lower Court erred in law when it convicted the Appellant of the offence of murder when the offence has not been proved beyond reasonable doubt.
GROUND 3
That the lower Court erred in law when it convicted the Appellant of the offence of child stealing when the offence has not been proved beyond reasonable doubt.
GROUND 4
That the learned judge erred in law when he convicted the Appellant for the offence of murder when the offence has not been proved beyond reasonable doubt.
GROUND 5
The lower Court erred in law when he convicted the Appellant based on the confessional statements of DW1 and DW2.
ISSUES FOR DETERMINATION
In a brief of argument dated and filed on 5/1/2017, the Appellant distilled two issues for the determination to wit:
Whether the learned trial judge rightly convicted the Appellant for the offence of murder when the essential ingredients in proving the charge were not established (from ground 4)
Whether the learned trial judge was right to have relied on the confessional statements made by the 1st and 2nd accused persons to the police to convict the Appellant.
On its part, the Respondent, in a brief dated 16th day of January, 2018 but filed on 18th day of January, 2018 identified a sole issue for determination, to wit:
Whether on the evidence of the prosecution witnesses and the confessional statements of the Appellant and his co-accused the trial Court was right in convicting the Appellant for the offences of conspiracy to commit child stealing, conspiracy to commit murder, child stealing and murder (grounds 2, 3, 4 and 5).
I have considered the issues raised by both the Appellant and the Respondent and in my view, this appeal can be determined on the issues formulated by the Appellant which I intend to adopt as mine to be used in this discourse
ARGUMENT
On issue one, learned counsel for the Appellant submitted that the burden of proof in criminal trials rests on the prosecution, and even a confessional statement does not relieve the prosecution of this burden. Counsel cited STATE V. DANJUMA (1997) 5 NWLR (PT. 506) 512 and NWANKWOALA V. STATE (2005) 12 NWLR (PT. 940) 637. Also citing MBANG V. THE STATE (2011) All FWLR (PT. 562) 1766 @ 1781 Paras D-F counsel highlighted the ingredients that must be proved to sustain a conviction in a murder trial. He argued vigorously that the prosecution failed to prove that the deceased died and that the death resulted from the act of the Appellant.
Arguing further, learned counsel contended that there was no scintilla of evidence that Ifueko whom the Appellant and his co-accused were alleged to have murdered, was dead. That evidence from the prosecution witnesses only showed that the girl was missing, hence the case of a missing child was reported to the police and that was what the police investigated; counsel referred to the Police Investigation Report and the evidence of PW 1 to drive home this point.
Further on this point, counsel submitted that assuming without conceding that the prosecution proved the death of Ifueko, it also has the burden to prove the act or omission of the Appellant that caused the death. Counsel cited EKAIDEM V. STATE (2012) ALL FWLR (PT. 631) 1587 @ 1612 Paras A-D; AHMED V. THE STATE (2001) FWLR (PT.34) 438 to buttress the point that to secure a conviction for murder, the cause of death must be established and same must be traced to the accused.
In a further argument on this issue, learned counsel opined that there was no finding on the cause of death if any, by the trial judge since there was no evidence on record to that effect. Counsel cited SAIDU V. STATE (2016) ALL FWLR (PT. 849) 899 @ 926 on the imperativeness of a trial Court making specific findings on an issue before it. Learned counsel cited GARBA V. STATE (2011) ALL FWLR (PT. 584)148 @ 162 Paras A-C on the point that the three ingredients of murder must co-exist, and that where one is absent or tainted with some doubt the charge cannot be said to have been proved.
Lastly on this issue, counsel cited ADENIYI V. F.R.N. (2012) ALL FWLR (PT. 646) 575 @ 593 PARA to the effect that failure to prove or establish the essential ingredient of a charge is the dismissal of the charge and the accused being given the benefit of the doubt, by being discharged and acquitted. Counsel posited that the conviction and sentence of the Appellant for the charge of murder was bereft of the requisite proof postulated by law, as the prosecution failed to prove the 1st and 2nd ingredients in the charge of murder against the Appellant. Counsel urged that this issue be resolved in favour of the Appellant.
On its part, the Respondent argued the issues together. Learned counsel to the Respondent submitted that the prosecution proved the charges against the Appellant beyond reasonable doubt. Citing MUSA V. THE STATE (2012) VOL. 10 LRCNCC 255 @ 262 RATIO 11 and SHURUMO V. THE STATE (2012) VOL. 10 LRCNCC 1 @ 9 RATIO 16 he submitted that reasonable doubt does not mean proof beyond every iota of doubt or proof beyond every shadow of doubt, but proof which conveys a high degree of probability.
Counsel submitted that all that is required of a prosecution in a criminal trial in discharging the burden of proof is to establish the ingredients of the offence. That one of the ways of discharging this burden of proof is by the confessional statement of the accused person and counsel called in aid OSENI V. THE STATE (2012) VOL. 208 LRCN 151 @ 158 RATIO 9.
Learned counsel also enumerated the ingredients of the offences with which the Appellant was charged, referred to Sections 7, 8 and 9 of the Criminal Code Act and submitted that by the evidence of PW1-5, and the statement of the Appellant (Exhibit D), the Appellant not only participated in the commission of the offence, but that she also procured others to do so. Counsel referred to the evidence of the PW1 to the effect that the 1st accused confessed before her elder sister that she gave the victim (Ifeuko) to the 2nd accused.
Counsel posited that this piece of evidence was neither challenged nor contradicted during cross examination; he cited GAJI V. PAYE (2003) 8 NWLR (PT. 823) 583 to the effect that failure to cross examine a witness on a particular matter is a tacit acceptance of the veracity of the evidence of the witness. Counsel also x-rayed the evidence of PW4, particularly page 42 lines 8-16, page 51 lines 4-6, page 53 lines 11-15 and page 54 lines 5-11 and submitted that these pieces of evidence established the identity of the Appellant and the fact that she participated actively in the commission of the offence.
Furthermore, learned counsel cited MOSES JUA V. THE STATE (2010) LPELR 1637; (2010) 4 NWLR (PT. 1184) 217 and submitted that the prosecution established that the victim had been missing and had not been found since 24/2/2009. That the victim was last seen alive by the Appellant and her co-accused persons.
Counsel contended that these pieces of evidence were not controverted and no evidence was led in rebuttal by the Appellant or her co-accused persons. Learned counsel cited MOSES JUA V. THE STATE (SUPRA) 49-50 and KINGSLEY OMOREGIE V. THE STATE (2017) 5-6 SC (PT. 11) 107 @ 124, lines 17-34 on theory of ‘last seen’ and submitted that the prosecution proved the offence of murder against the Appellant.
Learned counsel stated that the trial judge was not found wanting in his duty of evaluating evidence and ascribing probative value to the evidence before the Court. He cited AMADI V. FRN (2011) VOL. 9 LRCNCC 177 @ 179-180, RATIO 3 and AFOLALU V. THE STATE (2012) VOL.10 LRCNCC 30 @ 40 RATIO 13 to the effect that an appellate Court will not disturb the finding of fact of a trial Court unless such findings are perverse and not supported by evidence.
In conclusion, counsel submitted that a cursory perusal of Exhibit ‘D’ and the oral evidence on oath of the Appellant reveals the inconsistencies of falsehood, Counsel stated that the prosecution succeeded in proving the case of conspiracy to commit child stealing, conspiracy to commit murder, child stealing and murder against the Appellant beyond reasonable doubt. He then urged the Court to uphold the conviction and sentence of the Appellant.
OPINION
In resolving issue one above, it is imperative to set the tone by referring to the case of ABOKOKUYANRO V. STATE (2011) ALL FWLR (PT. 597) 700 @ 719-720 Paras. B-A, where this Court quoted the words of Ogundare JSC in ADEPETU V. STATE (1998) 9 NWLR (PT. 565) 185 @ 207 to the effect that ‘the charge of murder is proved by circumstantial evidence notwithstanding the fact that neither the body, nor any trace of the body of the deceased had been found. That even when the accused made no confession, he could albeit be convicted and yet leave no ground for reasonable doubt’.
Having said that, the Appellant in his brief has argued extensively that the prosecution failed in proving the ingredients of the offence of murder to wit: that the deceased had died and that the death of the deceased was caused by the act of the accused.
Counsel argued that having failed to prove these ingredients that the Court was wrong in convicting the Appellant. As earlier stated the Court can convict for murder on the basis of circumstantial evidence. Without mincing words, the evidence of the prosecution witnesses clearly and poignantly proved the ingredients of the offence of murder. The evidence of the prosecution witnesses is clear and credible and sufficiently pins the Appellant and her co-accused persons as having committed the offences with which they were charged, tried, convicted and sentenced.
In the instant appeal, there is no doubt that the little girl, Ifeuko was last seen with the Appellant and her co-accused persons. There is also no doubt that since then the said Ifueko had not been seen for a period of over seven years, which by law raises a presumption of death. In legal parlance, presumption of death arises on the unexpected disappearance and continued absence of a person from extended period, commonly 7 years. To my mind therefore, the fact that the prosecution did not state categorically how the said little girl died, is not fatal to the case of the prosecution.
It behooves the Appellant to explain what happened to the little girl. It is elementary law that in a criminal trial all that is required of the prosecution is to prove the guilt of the accused beyond reasonable doubt. In ABOKOKUYANRO V. STATE (SUPRA) @ 723 Paras E-G it was held inter alia ‘proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. If the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence; ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt’.
It is imperative to note that the case at hand is based on circumstantial evidence. In UKORAH V. THE STATE 1977 4 SC 111, 1977 LPELR 3345 (sc) the Apex Court clearly reveals the fact that circumstantial evidence is probably the best evidence. It stated as follows:
”Circumstantial evidence is as good as, sometimes better than any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.”
Learned counsel to the Appellant has made heavy weather of the fact that there is no finding on the cause of death, hence the conviction cannot stand. This argument to me is bizarre. The victim in this case went missing courtesy of the acts of the Appellant and her co-accused persons; there is no reasonable explanation from the Appellant and others as to what happened to the missing child. What other cause of death will be required to prove that the child is dead in law? In my view, it will amount to trying to prove the impossible in requesting the prosecution to show with certainty how the little child died. At the time of trial the body had not been found in order to conduct an autopsy. In essence, I am of the view, that having proved that the little girl went missing courtesy of the Appellant and his co accused persons, and having proved that a period of over seven years had elapsed since then, the prosecution has sufficiently proved the ingredients of the offence of murder.
This issue should be resolved in favour of the Respondent and it is hereby so resolved.
ISSUE TWO:
Whether the learned trial judge was right to have relied on the confessional statements made by the 1st and 2nd accused persons to the police to convict the Appellant.
Learned counsel for the Appellant reiterated the position of the law to the effect that a statement made by an accused person which in itself is confessional can be held against the maker only and no other person except where such a person adopts such a confessional statement as his own statement. Counsel referred to Section 29(4) of the Evidence Act, 2011, and COMMISSIONER OF POLICE V. UDE (2012) ALL FWLR (PT. 642) 1691 @ 1716-1717 Paras H-B for this postulation. Counsel also submitted that the Appellant did not adopt the confessional statements made by the 1st and 2nd accused persons either by words or by conduct. He reproduced the contents of Exhibit D (Appellant’s statement to the police) and submitted that the Appellant in both his statement to the police and his oral evidence before the Court denied the allegation against him.
In a further argument on this issue, counsel stated that the trial judge, contrary to the position of the law as stated in MBANG V. THE STATE (2010) ALL FWLR (PT. 508) 379 @ 395, convicted the Appellant solely on the confessional statements of her co-accused persons. Counsel accused the trial judge of descending into the arena of conflict thereby making findings outside the issues raised by the prosecution and not adequately considering the evidence and statement of the Appellant. Counsel cited SUBERU V. THE STATE (2010) VOL. 183 LRCN 55 @ 71 Paras A-K on the admonition for Courts not to fill gaps for parties in a case.
Lastly counsel submitted that the Appellant gave sufficient, credible and convincing evidence in her defence which was not shaken in cross examination, but that the trial judge failed to consider same. He cited EDOHO V. STATE (2011) VOL. 192 LRCN 59 @ 94 Para JJ on the need for the Court to consider every defense available to an accused person, especially in offences that carry capital punishment. He submitted the trial judge’s failure to adequately consider the defence of the Appellant which was logical before reaching his decision occasioned a miscarriage of justice and a total disregard of the sacred duties of the Court. Counsel urged that the conviction and sentence of the Appellant be reversed.
At this juncture, I shall however encompass the holistic argument of learned counsel for the Respondent as the said argument covers the points raised by the Appellant in his submissions.
OPINION
I have gone through the arguments of the learned counsel for the Appellant that of the Respondent as well as the record of appeal especially the judgment of the trial judge. Appellant’s Counsel had argued that the Appellant was convicted solely on the confessional statement of the co-accused persons. While I concede to the position of the law that a confessional statement is not admissible against a co-accused except he/she adopted same, in the instant appeal the conviction of the Appellant was not predicated on the confessional statements of her co-accused persons.
As graphically captured by the trial judge at page 147 of the records, the Appellant at all material times on 24th day of February, 2009 was in company of the 2nd accused. The testimony of PW2 and Exhibit ‘D’ corroborated this point. The Appellant in her evidence admitted that she accompanied 2nd accused to Erhiboribo village. PW4 in his evidence stated that the 1st Accused identified the Appellant as the person who was in company 2nd accused when she handed over the little Ifueko to the 2nd accused.
The 2nd accused on his part admitted to handing over the little girl to the Appellant. All these pieces of evidence without doubt link the Appellant to the offence which brings her within the ambit of Sections 7 and 8 of the Criminal Code as a party to the offence. In other words, it is not correct to state that the trial judge relied solely on the confessional statements made by the 1st and 2nd accused to convict the Appellant.
As earlier observed in this judgment, the prosecution apart from the confessional statements of the Appellant’s co-accused persons, led credible, cogent and uncontroverted evidence which formed the basis on which the trial judge convicted the Appellant. This issue therefore ought to be resolved against the Appellant and in favour of the Respondent.
In the final analysis, this appeal is without merit and ought to be dismissed in its entirety. The learned trial judge did a thorough job of evaluating all pieces of evidence before him including the defenses available to the Appellant and her co-accused persons. There is therefore no need to interfere with the excellent job of the lower Court.
Accordingly, this appeal fails and is hereby dismissed. The judgment of the lower Court delivered on the 14th day of July, 2016 in Suit No. HAB/2C/2011 is hereby affirmed.
Appeal dismissed
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother P.M. EKPE, JCA. The reasoning and conclusions arrived thereat are quite apt and I adopt same as mine. I have nothing further to add.
In the same vein, I hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential order made in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA.
I am in total agreement that this appeal lacks merit and for the elaborate reasons given by my learned brother, I also dismiss it.
I hereby affirm the judgment of the trial Court.
Appearances:
E. O. Afolabi, Esq. with him, Efosa Odiase, Esq., F.O. Odiase, Esq. and Irele Ifijeh, Esq.For Appellant(s)
O. Iyamu, Esq. (S.G Edo State) with him, Mrs. R.O. Oaihimire (S.S.C Edo State)For Respondent(s)
