NDUBUISI DIKE v. THE STATE (2014)

NDUBUISI DIKE v. THE STATE

(2014)LCN/7736(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of July, 2014

CA/OW/162C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF PROOF OF OFFENCE OF MURDER

The law is well developed on the proof of offence of murder that the prosecution has a duty to establish, without reasonable doubt, that the accused person caused the death of deceased by training a casual link between the death of the deceased and the act or omission of the Accused person.
See the case of Michael vs The State (2008) 13 NWLR (Pt.1104) 361 at 377; Kada vs The State (1991) 8 NWLR (Pt. 208) 134; Galadima vs The State (2013) LPELR-20 402 (CA).

Of course, it becomes easier and more straight forward, where the deceased died on the spot soon after injury inflicted on him by the Accused person, and the test will shift to the nature of the weapon used to inflict the injury and the nature of the attack, whether the accused intended to cause the death, or cause grievous bodily harm and death resulted from that; See Nwokearu vs State (2010) 15 NWLR (Pt.1215) 1; Onia vs State (2006) 11 NWLR (Pt.991) 267; Adekunle Vs State (2006) 14 NWLR (Pt.1000) 717; Adamu vs Kano NA (1956) SCNLR 163.

The essential ingredient of proof of offence of murder are also well documented in a plethora of cases, that the prosecution must prove:

That the death occurred – the person died
2. That the death resulted from the act/omission of the Accused person.
3. The Accused person caused the death intentionally, or with knowledge that death or grievous bodily harm was the probably consequence of his act/omission. See Sule vs State (2009) 19 NWLR (Pt. 1169) 33; Nkebisi vs State (2010) 5 NWLR (Pt.1188) 471; Mbang vs State (2010) 7 NWLR (Pt.1194) 431; Usman vs State (2011) 4 NWLR (Pt.1233) 1; Uluebeka vs State (2011) 4 NWLR (Pt. 1237) 358; Akpa vs State (2008) 14 NWLR (Pt.1106) 72; Musa vs The State (2014) LPELR-22912 (CA)

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHETHER CIRCUMSTANTIAL EVIDENCE CAN BE ADDUCE BY THE PROSECUTION IN PROVING A CRIME

In proving the cause of death or establishing the causal link between the death of the person and the act of the accused person, the law permits this to be done either by direct or circumstantial evidence or by confessional statement of the Accused person; and for circumstantial evidence from which the guilt of the Accused can be inferred, must, however, be cogent, point, conclusively and unmistakenly in the direction of the guilt of the Accused person. See Emeka vs. State (2001) 14 NWLR (Pt.734) 66; Nigerian Navy vs. Lambert (2007) 18 NWLR (PT.1066) 300; Dele vs State (2011) 1 NWLR (Pt. 1229) 508.

Before Their Lordships

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

FREDERICK O. OHOJustice of The Court of Appeal of Nigeria

Between

NDUBUISI DIKEAppellant(s)

AND

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court in charge NO. HUK/10C/2010, delivered on 25/1/2012 by Hon. Justice C.O. Onyeabo, wherein Appellant was convicted in a one count charge of murder and sentenced to death, by hanging.

Appellant (at the count below) was charge for causing the death of one Onyekwere Dike (Appellant’s brother) on 25th day of December, 2009, at Umuhu compound in Mbam Abuo Ukwa East Local Government Area, within Ukwa Judicial Division, contrary to section 319 of the criminal code, volume 11 Cap 30 laws of Eastern Nigeria 1963 as applicable to Abia State.

The Appellant as accused person was arraigned on 19/1/2011 and he pleaded “Not guilty” to the charge. The facts of the case at the trial court was that Appellant killed his brother Onyekwere Dike for refusing to give him (accused) some money. Dike PW1 Mercy Dike Nwulu, (Appellant’s mother) told the court:

“we all ate on that night and went to bed, and while asleep, I got up as if I had been awakened, and went outside and found that Onyekwere’s house was on fire, and I saw Ndubuisi walking around outside. It was Onyekwere’s room that was ablaze, where he was sleeping I asked Ndubuisi and he responded that he was the one who set the house on fire because he had asked Onyekwere for money and that Onyekwere had refused. And it is true that Ndubuisi wanted to use the money to buy a second-hand vehicle to use during the December season, at the cost of #90,000.00, but he demanded the sum of #100,000.00 (One Hundred Thousand Naira) from his brother Onyekwere, and Onyekwere said he did not have such money to give to him…… Ndubuisi is older than Onyekwere. When Onyekwere refused to give Ndubuisi this money, Ndubuisi became very angry and for three days, he did not eat in the house. Onyekwere on his part said that he had been giving Ndubuisi various sums of money like #2,000.00, #5,000.00, #10,000.00 but did not have the kind of money Ndubuisi was asking of him. After Onyekwere refused to give Ndubuisi the said sum requested and had also told me in words that he would do something terrible. The accused is always begging others for money. We have no rest when he is around. Ndubuisi had actually told me that he will kill someone and I had thought he had not meant it. When I came outside, I shouted and people came to the scene. The accused person told me that he killed his brother, he admitted doing so, asked me to forgive him and I told him that he had done terrible deed. I reported the matter to the police and when they came to arrest the accused person, he ran away from them but they later arrested him…. “see pages 32 – 33 of the records.

The above evidence was corroborated by PW2 Ihuoma Dike (a brother of the accused), when she said:

“I know the accused person he is my brother. He is older than I. I also know Onyekwere Dike. He is also my brother. He is now dead. He was killed by the accused person. The accused person was demanding for the sum of #100,000.00, from the deceased and the deceased said he did not have any such money. The accused was fully angered (sic) and said he would kill someone within three to four days, the accused person killed the deceased. We had gone to bed on 25th December 2009 and when we came out we saw fire burning on the room of my late brother, Onyekwere. I also saw the accused person outside while the room was burning, the accused person was going around it to see if the deceased would run out from the room. The accused had a matchet in his hand while he monitored the burning room. It was around 1:am to 2:am that the incident occurred…”(see pages 37 – 38 of the Records).

At the trial the accused denied killing his brother and denied any fire incident. He said;

“There was no fire lit by me on 25th December 2009 to the house where Onyekwere Dike was and I did not light any such fire on any other date to the building or premises where Onyekwere Dike was sleeping…I did not tell my mother Mercy Dike that I was the one who had set the building ablaze…

The evidence by the IPO (PW3) however showed as follows:

“….we had visited the scene of the crime at their compound. Inside the deceased’s bedroom is the bed, his corpse was lying upside down. Then he had burnt beyond recognition.
We recovered the corpse and deposited it in the mortuary…. I took photographs of the corpse at the scene of the crime….. I made police investigation… The result of the autopsy is in the case file…” (The medical report was Exhibit C) see pages 44 to 45 of the Records.

At the end of the trial, the court below held:

“The evidence of PW1 and PW2, though indirect, is cogent, positive and compelling and points to the accused person and to no other person or cause for the commission of the totality of the evidence, by the undersigned co-incidences, point unmistakingly in the direction of the guilt of the accused. It is therefore my finding that the death of the deceased was caused by the accused, and whose act or omission which caused the death of the deceased was intentional and with knowledge that death or grievous bodily harm was its probable consequence. Thus the second and third essential ingredients of murder as well as section 316(1), (2) and (3) of the criminal code were proved against the accused person beyond reasonable doubt… “(see pages 103 and 104 of the Records of appeal).

Dissatisfied with the judgment, Appellant filed a notice and grounds of appeal on 6/4/12, as per the last 4 pages of the Records of appeal, disclosing eight (8) grounds of appeal. Appellant filed his brief of argument on 22/5/13 and distilled six (6) issues for determination, as follows:

(i) Whether or not there was enough circumstantial evidence before the trial court to sustain the charge/warrant the inference that the accused killed the deceased.

(ii) Whether the learned trial judge was right when he held that the alleged act of accused, in failing to help put out the fire or raise an alarm is enough evidence that he caused the fire outbreak.

(iii) Whether or not the learned trial judge was right when he relied on the mere fact that the appellant had the opportunity to commit the offence and not actual proof that he committed the offence as grounds for finding him guilty.

(iv) Whether or not the learned trial judge was right when he placed the burden of proof on the appellant.

(v) Whether or not the learned trial judge was right when he failed to resolved the doubt and material contradictions in the prosecution’s case in favour of the appellant.

(vi) Whether or not the learned trial court was right when he reached on a mere prima facie case rather than prove beyond reasonable doubt in finding the appellant guilty of murder.

The respondent filed its brief on 25/11/13 and the same was deemed duly filed on 11/6/14. It also formulated 6 issues for determination and they were exactly the issues formulated by the Appellant.

Appellant filed a reply brief on 28/4/14 and the same was deemed duly filed on 11/6/14.

Arguing the issues, serially, counsel for the Appellant Kenneth Ahia Esq, submitted, that to convict on circumstantial evidence the court, in a long line of decided cases has stated that it must lead to one conclusion, name by the guilt of the accused person. But where there are other possibilities in the case other than the accused that committed the offence; that some other person than the accused had opportunity of committing the offence with which he was charged, such accused cannot be convicted. He relied on the case of Shehu vs State (2010) 5 NWLR (Pt.1195) 112.

Counsel submitted that the entire evidence of the prosecution which the court relied on did not point conclusively to the accused person; that the evidence that the accused poured fuel on the house and set it ablaze were mere speculations as there was no direct evidence to link the accused with the fuel; that there were no direct evidence as to the cause of the fire. Appellant also relied on the case of Sule Ahmed (Alias Eza) vs The State (2001) SC 27 41.

On issue 2 Counsel argued that the fact that the Appellant was at the scene of the fire and did not raise alarm or make effort to quench it cannot establish culpability against him; that the trial court was wrong to draw inference from such inaction to support the circumstantial evidence to convict the Appellant. He argued that assuming the appellant failed to help that such conduct touches on moral duty not legal duty; that it can only give rise to suspicion and suspicion, however, strong cannot lead to conviction, and can not take the place of legal proof. He relied on the case of Shehu vs State (supra); Obiakor vs State (2002) 10 NWLR (Pg 776) 612.

On issue 3, Appellants’ counsel submitted that it was wrong for the trial court to rely on the fact that the Appellant had opportunity to commit the offence as grounds for finding him guilty. He pointed out that the trial had denied the offence and that the said evidence was not contradicted at the trial, that the Appellant had stated that PW1 and PW2 (Mother and sister) were not happy with him because of his marriage to Uzodinma, which they opposed, and so made up the stories against him; that those evidence was not challenged and so cast serious doubt on the evidence of the PW1 and PW2 and questions their motives; that the trial court should resolved the doubt in favour of the Appellant. He relied on the case of Oforlete vs State (2000) 12 NWLR (Pt.681) 415. He further submitted that the mere fact that a person had opportunity to commit offence with which he is charged without anything more will not suffice that he has a case to answer, let alone finding him guilty. He relied on the case of Chuka vs State (No. 2) (1988) 4 NWLR (PT. 86) 39.

On issues 4 and 5 counsel submitted that it is cardinal principle of our criminal jurisprudence that in all criminal cases the duty to prove the guilt of the accused person lies with the prosecution and the proof is beyond reasonable doubt. Ubani vs State (2003) 18 NWLR (Pt.851) 224. Counsel submitted that the evidence of PW1 and PW2 could not sustain the charge and the court was wrong to rely on their evidence; that the findings of the Appellant to prove his innocence. That having denied setting the house ablaze, the prosecution had the challenge of proving his guilt beyond reasonable doubt. He said that there were contradictions in the prosecution’s evidence which should have been resolved for Appellant. He relied on Nnunukwe vs State (2003) 14 NWLR (Pt. 840) 219; Nwankwoala vs State (2006) 14 NWLR (Pt. 100) 663; Achibong vs State (2006) 14 NWLR (Pt. 100) 349, Igbi vs State (1998) 11 NWLR (Pt.574) 419.

On issue 6, counsel submitted that in proving elements of murder it must be shown that it was the act of the accused that caused the death of the deceased, not that it was an act of the deseased (sic) that might have caused the death. Relying on the case of Okoro vs State (1988) 5 NWLR (Pt.94) 255 at 258, Counsel submitted that, where at the close of trial or case for the prosecution, the evidence led fails to meet the essential requirement then the prosecution has not discharged its constitutional burden of proof of the guilt of the accused beyond reasonable doubt, and should be discharged.

He urged us to resolved the issues for Respondents’ counsel A.E Ejikeme ESQ (SC) who settled the brief relied on the evidence of PW1 and PW2 to say that the trial court was right in convicting the Appellant; that the evidence and accounts of the witness were never challenged or contradicted on any material issue. He relied on the case of Hilary Farms Ltd Vs M/V Mahtra (2007) LRCN vol. 153.

On issue 2 counsel said the Appellant was not accused for not doing anything to put out the fire, which could be a moral duty, but what he did was to supervise the watching/burning of the house, the execution of the plan he put in motion; that PW1 had testified that Appellant had confess setting the house ablaze and killing his brother.

On issue 3, counsel submitted that the trial court was right to rely on the circumstantial evidence before him to convict the Appellant. He relied on Emeka Vs State (2001) 14 NWLR (PT. 734) and Kinmoju Vs State (1995) NWLR (Pt.406) where the courts held that circumstantial evidence is one of the means of establishing conviction. He argued that crimes are hardly committed in the full glare of people, that most times there is element of secrecy which makes eye witnesses difficult to find.

He relied on Galadima vs The State (2013) LRCN Vol. 217 page 58 at 62. He also relied on Mohammed & Anor Vs The State where he said Supreme Court held:

“A case is said to be proved beyond reasonable doubt either by direct oral evidence or by circumstantial evidence. Although witnesses can lie, circumstances cannot lie. Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt”

On issue 4, counsel relied on the case The State vs Azeez (2009) LRCN Vol. 171 page 193 at 200 as to what “Proof beyond reasonable doubt” means, that “all it means is

that the prosecution must adduce such evidence, which if believed and if left uncontradicted and unexplained, it could be accepted by the trial court as proof.
Thus, proof beyond reasonable doubt does not mean proof to a scientific certainty.”

Counsel urged us to rely on the evidence of the PW1 and PW2 which he said were not challenged or debunked. He said that the trial court never asked the Appellant to prove his innocence; that what trial court did was akin to the case of Francis Tete Lawson & Ors vs The State (1975) 4 SC 115 where it was held:

“Where the facts presented to the court by the prosecution witnesses call for an explanation by the Accused and none was forth coming, such circumstantial evidence was sufficient prove beyond reasonable doubt.”

On issue 5, Respondent’s Counsel submitted that there was no contradiction in the evidence of the witnesses on any material issue; that issue of who first came out to see the burning houses and the Appellant had been resolved to be the PW1 and even then it was not a material issue.
He relied on the case of Akpabio vs State (1994) 7 NWLR (Pt.359) 635; Ochemaje vs State (2009) LRCN Vol 168 Pt. 97 at 101.

Counsel, added that where there is mere discrepancy in the evidence of the prosecution witness(es) on an issue which is not material, the courts are enjoined to disregard such discrepancy. Attah and Anor Vs The State (2010) LRCN Vol. 1 & 2 page 1 at 7.

On issue 6, counsel said the law is that once the prosecution has proved the essential ingredients of the offence against the accused the offence is established, beyond reasonable doubt. He relied on the case of State vs Salawu (2012) LRCN Vol. 203 page 183 at 190; Eke vs The State (2011) LRCN Vol. 200 page 143 at 150.

He urged us to so hold in this case, saying that proof beyond reasonable doubt is not proof beyond the shadow of doubt Ochemaje Vs State (2009) LRCN Vol. 168 page 97 at 103; Abeke vs The State (2007) LRCN. Vol. 151 page 101; Miller Vs Minister of Prisons (1947) 2 All ER 22, 372; Bakara vs State (1987) NWLR (Pt 52) 597.

He urged us to resolve the issues against the Appellant and dismiss the appeal.

RESOLUTION OF ISSUES

I have to observe that the counsel on both sides not diligent or careful in the way they prepared their briefs as they omitted to write the Appeal number at all, while the respondents, brief wrote a wrong number -“No. 162/2013” and the same wrong number was on the reply brief filed by the Appellant.

If we follow strict rules of technicalities this appeal would have been struck out at that stage as it is obvious the briefs appeared not to be those of Appeal No. CA/OW/162/2013, carried by the Records of Appeal. I also observed that even the number on the Record of Appeal failed to disclose the fact that there is a criminal Appeal by omitting the letter “C” after the “162”, to differentiate the Appeal from a criminal Appeal. The number should therefore have been rightly written as “Appeal No. CA/OW/162/C/2013, or CA/OW/162C/2013.

I shall then pardon the errors and consider the briefs, in the interest of justice, invoking the presumption of regularity, since it is understood that the briefs were prepared and filed in respect of this Appeal No. CA/OW/162C/2013, as the errors were those or irregularity that could be corrected. Failure to fulfil the provisions of the rules of court is a mere irregularity when not taken timeously or when accused in, it becomes incapable of affecting the jurisdiction of the court. See Samba Petroleum Co. Ltd. vs FCMB (2014) 3 NWLR (Pt.1394) 346; (2013) LPELR – 21874 (CA) Pp 18 – 19; C Ezemo v. Oyakhire (1985) NWLR (Pt.2) 195, NOIBI VS. Fikolati and another (1987) NWLR (Pt.52) 619.

I also think the main issue for the determination of this Appeal is and that is:

Whether the learned trial court was right to rely on circumstantial evidence in this case to convict the Appellant of the murder of his brother.

The essential ingredient of proof of offence of murder are also well documented in a plethora of cases, that the prosecution must prove:

1. That the death occurred – the person died
2. That the death resulted from the act/omission of the Accused person.
3. The Accused person caused the death intentionally, or with knowledge that death or grievous bodily harm was the probably consequence of his act/omission. See Sule vs State (2009) 19 NWLR (Pt. 1169) 33; Nkebisi vs State (2010) 5 NWLR (Pt.1188) 471; Mbang vs State (2010) 7 NWLR (Pt.1194) 431; Usman vs State (2011) 4 NWLR (Pt.1233) 1; Uluebeka vs State (2011) 4 NWLR (Pt. 1237) 358; Akpa vs State (2008) 14 NWLR (Pt.1106) 72; Musa vs The State (2014) LPELR-22912 (CA)

In the case of Chiokwe vs. State (2005) 5 NWLR (Pt.918) 424, this Court held:
“Thus, the principle of law is firmly settled that where circumstantial evidence adduced, by prosecution is so cogent positive overwhelming, and compelling that it irresistibly and conclusively points to the accused as the perpetrator of the offence alleged to have been committed, a court of law would be entitled to infer from such evidence and surrounding circumstances that the accused committed the offence and convict him accordingly on such evidence. See also Nasiru vs. The State (1999) 2 NWLR (Pt 589) 87.The trial Court in this appeal had relied, heavily on the evidence of PW1 and PW2, mother and brother of the Appellant, respectively, to convict the Appellant of the murder of his junior brother, founded on circumstantial evidence that he set the room of the brother (deceased) ablaze wherein the brother died.
Evidence showed he was moving round the building (room) while it burnt and when the mother confronted him he admitted setting the house (room) ablaze and of killing the brother. She said:

“….I saw Ndubuisi (Appellant) walking around outside. It was Onyekwere’s (deceased) room that was ablaze, where he was sleeping. I asked Ndubuisi and he responded that he was the one who set the house on fire because he had asked Onyekwere for money and that Onyekwere had refused… When I came outside I shouted and people came to the scene. The accused person told me that he killed his brother. He admitted doing so, asked me to forgive him and I told him that he had done terrible deed…” pages 32 and 33 of the Records.

PW2 who came out in that late hours to see the Appellant when the fire raged said:

“The accused was fully anger (sic) and said he would kill someone within three to four days; the accused person killed the deceased. We had gone to bed on 25th December 2009 and when we came out we saw fire burning in the room of my late brother Onyekwere. I also saw the accused person outside while the room was burning, the accused person was going round it to see if the deceased would run out from the room. The accused had a matchet in his hand while he monitored the burning room. It was around 1 a.m to 2 a.m that the incident occurred. My mother (PW1) had come out first and then came and called me and we ran out and were crying.” (See page 37 of the Records).

The PW2 was not cross examined on those evidence that the accused was going round the burning room with matchet in his hand to see if the deceased (brother) would run out from the burning room! That the Appellant was very angry with his brother (deceased) for failing to give the money he (Appellant) demanded for and had threatened that someone would die!

Also the evidence by the PW1 was not debunked or contradicted, when she said she came out to see the Appellant walking round the burning room and said he set the room ablaze and killed the brother! When Appellant Counsel asked her to confirm that she had told the court that Appellant, while admitting that he killed Onyekwere, had also threatened to kill her (PW1) – a question which was absolutely uncalled for – PW1 said:

“Yes, he told me so, saying if i told any other person about.”
And when asked whether she informed the police that the Appellant threatened her life, she said she did, and did not know whether the Recorder, who took her statement, recorded it. (See page 35 of the Records); PW1, again, affirmed, under cross examination, when asked whether she saw the Appellant pour fuel in the room of the deceased, that she did not, but only saw him going round while the fire was burning!

I am unable to spot any contradiction on material issue in the evidence of the PW1 and PW2, or between their evidence on oath and their statements to the police. They were consistent that it was the PW1 that came out first to see the burning room and the Appellant parading the burning room as if supervising the burning. On whether the Appellant was married and or had children, as he claimed, the PW1 and PW2 were consistent that he was not married and had no children that they knew of PW1 even said, when Appellant’s Counsel insisted that Appellant had a wife by name Uzodinma:

“Ndubuisi (Appellant) is not married, except he got married without my knowledge” page 34 of the Records.

And as if to vindicate her, the Appellant, who told the court that he had a wife (by name Uzodinma) and children and secured adjournment to enable the said wife attend court and testify, failed to produce the wife to testify for him on the adjourned date – 26/9/11 on that date it was reported:

“The matter is for the evidence of the DW2… The Court is informed by Barrister Faotu that they do not need the evidence of the wife of the accused person. In the open Court, he has conferred with the accused person who evidently has agreed with his Counsel on that point.” See page 52 of the Records of appeal.

The read presumption inferable from that would be there was no truth about the allegation of Appellant being married with children or that if married, (or there was anybody he cohabited with) the evidence of that person would not favour the Appellant hence his Counsel told the court they “did not need the evidence of the wife of the accused.”

Of course, such presumption could not be in Appellant’s favour. See Section 167(d) of the Evidence Act, 2011:

167: The Court may presume the existence of any fact which is deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that-
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who with held it.”

Appellant adopted an outright denial of killing his brother as stated by the PW1 and PW2. Apart from admitting that Onyekwere (Deceased) was his younger brother and was deceased, he said nothing about the demand for money from the brother nor even the fire incident. He said:

“There was no fire lit by me on 25th December 2009, to the house where Onyekwere Dike was sleeping. I did not tell my mother mercy Dike that I was the one who had set the building ablaze…” That was all he said about the weighty accusation. The rest were his story (about his mother’s dislike and problems with him because of his marriage to a wife that the mother did not like. He admitted that his said brother was deceased, but avoided to say how and when he died!

Unfortunately, the Prosecution did not confront him with any question to make him open up, apart from leading him to admit that the stories of his mother’s non-accertance of his alleged wife and chasing her away when he went to prison were as told him by his alleged wife – hearsay.

It is difficult to figure why the Appellant said nothing about how his brother died, where by his own mother and junior brother that he murdered the deceased brother of his by setting the room he slept ablaze; that he had quarreled with the brother because he failed to give him some money and had threatened somebody would die. His failure to react to those accusations and his denial of the fire incident, when the police report and evidence revealed and confirmed the burning of the deceased room and his death in the fire, leave much doubt about his account. He did not deny being the person seen walking or going round, the burning room, with a matchet in his hand!

Meanwhile, in his statement to the police which he made on 28/12/2009 he admitted there was fire incident on 25/12/09 and that his brother Onyekwere died in the fire. He said:

“I was in the house on that very day- my younger brother late Onyekwere Dike died, my brother died at about ooo hrs, while I was inside my bed room. On that fateful night being 25/12/2009 my brother’s room was got (sic) with inferno, I came out from my bedroom as the fire out-break started from my late brothers room, and entered into my own bedroom and immediately as I came out I saw about two persons running away towards Ohambele direction, while started shouting, that draw (sic) the attention of people living around our compound … there is a set of people that have land dispute with our family since years ago, and it happened that it was not up to two weeks ago when one Mr. Charlie Mr. Okechi Igwe Aba Igwe threatened our family that they will closed (sic) our family down without any survival person. I did not kill my brother neither did I conspire with any person to commit such atrocity against my late brother, Mr. Onyekwere. And I don’t have any problem with my brother Onyekwere Dike till his death,” (See page 25 of the Records) Appellant made another statement on 21/1/2010 wherein he said, on pages 27 – 28 of the Records of Appeal:

“…On 25/12/2009 at about 9.O’clock in the night myself, my wife and two children entered into the room and sleep (sic). As we were going to sleep my junior brother Onyekwere dike was outside eating together with Ihuoma Dike. He told me that he will be going for prayer that very night, after I left him and went to sleep. As we entered and sleep (sic) I saw fire, that was around 2 to 3 a.m burning inside Onyekwere’s house and also in my house. When the fire entered into our houses I started shouting my senior brother Chibuzor Dike my mother Adizinma Dike, my junior brother Chima Dike and Ihuoma came out. I and my senior brother Chibuzor dike began to pour water inside my house and inside my brother’s house to quench the fire… After they quenched the fire the day has dawn (sic), my senior brother Chibuzor and my brother left to go and see the senior brother of my mother. Many people came to our house, as they asked me what of my senior brother Chibuzor and my mother. I told them that they had gone out, they started beating me. The fire burnt my brother Onyekwere to death. My wife Uzodinma Dike is sating (sic) provisions and fuel in front of our house. My brother Onyekwere Dike, the vehicle he bought I borrowed him the sum of one hundred thousand naira. He bought a Jetta vehicle. His motor did not burnt (sic). He has paid me back the sum… I’m not demanding another N100,000.00 from him…

“I’m not the person that poured fuel in Onyekwere’s house and set it ablazed (sic). I’m not the one that set fire which burnt my brother Onyekwere Dike to dead (sic). My mother is telling lies.”

Surprisingly, none of the above two statements of the Appellant was adopted by him at the trial when he gave evidence. But the same being part of the Records of proceedings in the case, this court is entitled to look at it and apply it, if relevant.

The evidence of the PW1 AND PW2 had clearly and directly located the Appellant at the scene of the fire that engulfed the room of the Deceased (Onyekwere) and burnt him to death. Though it was not established by direct evidence who set the room/house ablaze, the evidence of the mother of the Accused (PW1) is to the effect that the accused confessed he did it and killed his brother and sought forgiveness from her. The PW3, the Investigating police Officer (IPO) told the court that Appellant admitted the offence, but changed it when he came to the police station See page 47 of the Records, where in answer to a question pw1 made a serious allegation against him (IPO) that the accused admitted committing the offence, and informed the police but it was not recorded, he said:

“What the PW1, said is true but the accused person later denied it when he came to the police station.”

Of course, despite the cosmetic denial by the Appellant, his actions and behavior before and during the fire incident to burn his brother, as disclosed by PW1 and PW2 tend to pin the Appellant to the crime. In his second statement he even supplied information as to the source of the fire, when he said:

“My wife Uzodinma is saling (sic) provisions and fuel in front of our house… I’m not the person that poured fuel in Onyekwere’s house and set fire which burnt my brother Onyekwere Dike to dead (sic).” (pages 27 and 28 of the Records)

This suggest he knew that fuel was poured in Onyekwere’s house and fire set on it and Onyekwere was burnt to death. And his alleged wife sold fuel in front of the house! Yet in his first statement to the police he said:

“… And I don’t know how the death came to him. I don’t have any problem with my brother Onyekwere Dike till his death.’ (page 25 of the Records)

He had also stated in the first statement that his brother’s room was caught in inferno, as he came out to see fire out break and immediately he came out he saw about 2 persons running away! Having been spotted as the person at the scene of the firing parading and supervising the burning, with a matchet in his hands, with no tangible effort to put out the fire, which he implied was set after pouring fuel on the house (And his wife sold fuel in front of the house!), the inference is very strong and conclusive that the Appellant was the person who set the room of his brother ablaze and burnt him to death in the dead of night of 25/12/09. And this inference is strengthened by the confession of the Appellant to his mother (PW1) that he was the one who set fire to the house/room and killed the deceased.

I cannot therefore fault the findings of the learned trial Judge who had the opportunity to watch the demeanour of the Appellant at the trial, when he held:

“It is therefore my finding that the death of the deceased was caused by the accused, and whose act or omission which caused the death of the deceased, was intentional and with knowledge that death or grievous bodily harm was its, probable consequence. Thus, the second and third essential ingredient of murder… were proved, against the accused person beyond reasonable doubt…” See pages 103 – 104 of the Records

I therefore resolve the issue against the Appellant and hold that the appeal is devoid of merit and dismiss it. I affirm the judgment of the lower Court against the Appellant, convicting and sentencing him accordingly.

PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Noble Lord, MBABA JCA and I agree entirely with the said judgment.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, Ita George Mbaba, JCA and with which I entirely agree.
The Learned trial Judge thoroughly considered the evidence adduced and in my view came to the right conclusion in his finding that the Appellant committed the murder. I am in agreement with the learned counsel for the Respondent that there is nothing at all that could be argued in favour of the Appellant.
I accordingly dismiss the appeal and affirm conviction and sentence of the trial court for the same reasons already stated in the lead Judgment.

Appearances

Kenneth Alina Esq., with him Bethram Faolu Esq.For Appellant

AND

A. E. Ejikeme Ume Esq. (PSC)For Respondent