NDUKWU v. STATE
(2022)LCN/17195(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/64C/2020
Before Our Lordships:
James Gambo Abundaga Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
ADA CHINYERE NDUKWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CIVIL MATTERS
The trial Court convicted the appellant because it was convinced that the charge was proved. This calls to question the burden of proof. It is settled law that the standard of proof in criminal cases is proof beyond reasonable doubt while the burden rests on the prosecution and never shifts, unless in cases in which the statute provides otherwise.
I rely on the following cases – Agugua v. The State (2017) LPELR – 42021 (SC), p. 38, paras E – F, Tobi v. The State (2019) LPELR – 46537 (SC), P. 24, paras C – D, Edun & Anor. v. FRN (2019) LPELR – 46047 (SC) p. 12.
It is also settled law that there are three (3) ways in which the guilt of an accused person may be proved:-
(i) By eye witness account of the commission of the offence,
(ii) By confessional statement of the accused person,
(iii) By circumstantial evidence.
I refer to the following cases on the issue – James Afolabi v. The State (2016) LPELR – 40300 (SC). Pp. 51 – 52, paras F – B, Demo Oseni v. The State (2012) LPELR – 7833 (SC) p. 41. Paras B – C, Darlington Eze v. FRN (2017) LPELR – 42097 (SC) p. 63, paras C – E. PER ABUNDAGA, J.C.A.
INGREDIENTS THE PROSECUTION MUST PROVE IN ORDER TO SUSTAIN A VALID CONVICTION FOR THE OFFENCE OF MURDER
But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder. The ingredients, as settled in law are:
(i) That the deceased had died,
(ii) That the death of the deceased had resulted from the act of the accused person,
(iii) That the act which caused the death or grievous bodily harm was its probable consequences.
See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I. PER ABUNDAGA, J.C.A.
THE POSITION OF LAW WHERE MORE PERSONS ARE CHARGED JOINTLY FOR A OFFENCE AND CONFESSION IS MADE BY ONE OF SUCH PERSONS IN THE PRESENCE OF ONE OR MORE OF THE OTHER PERSONS
However, in law, the statement, whether retracted or not did not bind the appellant because she did not adopt it or admit it as true. See the following cases which lucidly established that when two or three persons are tried together, a confession by one of them which incriminates one or the others binds him alone, unless the confessional statement is made in the presence of the others and they decide to adopt it:- Tirimisiyu Adebayo v. The State (2014) 8 SCM 34 at 65 para. 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271 paras. D – G.
See also Section 29 (4) of the Evidence Act, 2011 which provides:
“Where more persons than one are charged jointly with an offence and confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words as conducted.” PER ABUNDAGA, J.C.A.
THE POSITION OF LAW ON CIRCUMSTANTIAL EVIDENCE
I consider it imperative to consider the availability of circumstantial evidence on the standard required by law that can serve as a tripod on which the conviction of the appellant can be sustained. The Nigeria Criminal jurisprudence is replete with several definitions of circumstantial evidence, all of which lead to one general or common effect. In the case of Musa Mamman v. The State (2015) LPELR – 255963 (CA), circumstantial evidence was defined as:
“Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490. It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as 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. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference. All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.”
Per ABIRU, JCA (Pp. 27-29, paras. C-B)
See also the case of Nwielo v. The State (2021) LPELR – 56302 (CA) p. 19 – 20, paras. E – A. PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State.
The plea of the accused persons including the appellant was taken on 31st October, 2010.
The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty. Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him.
In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence. Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for Judgment.
In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging.
The appellant (5th accused) is aggrieved with her conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.
On due compilation and transmission of the record of appeal, the appellant proceeded to file her brief of argument. The brief of argument settled by her counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021. The appellant filed a reply brief on 25/1/22, and deemed properly filed on 9/2/21.
The briefs of argument were adopted on 25/01/22. In the appellant’s brief of argument, a lone issue was distilled for determination, which is:
“Whether the appellant was at home when the deceased was murdered and whether the plea of alibi did not avail the appellant.”
On the part of the respondent, similarly a lone issue couched as the following was distilled for determination:
“Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant, her plea/defence of alibi having failed.”
ARGUMENT ON THE ISSUES
Learned Counsel for the appellant, in his submission referred to page 296 of the record of appeal where the learned trial Judge found that the appellant’s plea of alibi failed. He also referred to pages 62 – 83 of the record of appeal which contains the evidence of PW1, which Counsel believes must have influenced the finding of the trial Court that the appellant’s plea of alibi failed.
Counsel goes on to submit that the evidence of PW1 is hearsay, as the said PW1 therein narrated what DW4 (1st accused) told her. Counsel pointed out that the same DW4 (1st accused) denied all that he had told PW1 and blamed it on the fact that the police compelled him to say those things while he was in their custody. Counsel further referred to the evidence of the IPO who was the team leader that investigated the case, whose evidence is that the appellant was arrested for an alleged phone call to the 1st accused person towards aiding his escape.
Learned Counsel submitted that the appellant in her evidence raised alibi, stating that on 4/11/2020 she left the village about 7am to Owerri Stadium and returned to the village at 8pm. That at Owerri, she was at Dan Anyiam Stadium Owerri, training in handball in Owerri Grasshoppers International Stadium in preparation for Kaduna National Sports Festival. That she left the stadium at about 11 – 12 noon and went back to her residence at No. 21, Njemanze Street, Owerri and was there till 4pm when she went back to the stadium for a second round of training up to 6.30pm. Counsel submits that from the evidence of witnesses, the appellant is a sportswoman.
Stating the ingredients which must be proved by the prosecution in order to secure a conviction for murder, appellant’s counsel submitted that the burden of proof is beyond reasonable doubt. The burden, he further submits does not shift from the prosecution, except in a few situations like when the accused person raises the defence of alibi, as in the instant case, and refers to the case of Madagwa v. The State (2009) ACLR Vol. 7 303 at 352 ratio 8.
It is submitted for the appellant that where an accused person raises the defence of alibi on time and discharges the evidential burden by giving details of where he was at the time the offence allegedly took place, the duty to investigate it shifts to the prosecution to disprove at the trial. Counsel relies on the case of Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 131 at 378 and 389.
Counsel further points out that the appellant made three extrajudicial statements – on 4/11/10, 8/11/10 and 28/12/10 in all of which she maintained her defence of alibi and gave the same details of her whereabouts, and this she did in good time.
Speaking to the issue as to whether the police investigated the alibi, counsel submitted that the investigation conducted by the police concerning the defence of alibi was lopsided, incomplete and not done in accordance with the law. Referring the Court to the evidence of PW4 (the police team leader) who carried out the investigation, it is submitted that the first arm of the alibi raised by the appellant to the effect that she went for training at Grasshoppers-International Handball Stadium Owerri that morning appeared not to have been investigated. On the evaluation of evidence by the trial Judge and his finding that the plea of alibi failed, it is submitted by appellant’s counsel that the said finding was perverse and misdirection in law.
Counsel points out that the trial Judge found as a fact that the appellant was at the stadium and was at Njemanze Street Owerri, and refers to page 296 of the record of appeal. Counsel therefore, wondered how the defence of alibi failed. It is therefore contended for the appellant that the inference drawn by the trial Court did not flow from the evidence of PW4 which shows that the appellant’s defence of alibi was not investigated as required by law.
It is therefore submitted for the appellant that it is not the duty of the accused person to prove his innocence but rather it is the prosecution’s duty to discredit him and to dislodge his evidence.
It is further submitted that the evidence on record did not justify the trial Court’s conclusion that the appellant’s plea of alibi failed. The Court is referred to the case of Rex v. Falayi (2009) 8 ACLR Vol. 8 pg 490 at 503 ratio 4, and the case of Madagwa v. The State (2009) 7 ACLR Vo. 7 pg. 303 at 352 ratio 2.
Further referring us to the case of Adeoti & Ors. v. State (2009) 8 ACLR Vol. 8 pg. 231 at 306, Counsel urged the Court to interfere with the findings of the trial Court as at concerns the defence of alibi because it is perverse. That the learned trial Judge failed or neglected to draw the necessary inferences or shut his eyes to the very potent facts which could have tilted the imaginary scale of justice in favour of the appellant.
It is further submitted that before a trial Court can draw an inference of the guilt of an accused, it must be sure that there is no other co-existing circumstances which could weaken such inference. This, counsel points out was not done in this case.
The Court is therefore urged to allow the appeal and to set aside the conviction of the appellant.
For the respondent, it is submitted that the appellant’s complaint is against the obiter dictum in the judgment and not the ratio. That the finding of the trial Court that the plea of alibi put up by the appellant was investigated and found unproved, and that the appellant was found to be at home and made calls to the 1st accused, made her criminis participes, and therefore very much in the bargain to murder the deceased. This, counsel submits, is the trial Court’s reason for the decision reached by the trial Court that the appellant was guilty of murder.
Respondent’s counsel admits that from the evidence of the witnesses, it is not in issue that the appellant is a sportswoman and trains at the Dan Anyiam Handball Stadium in Owerri, Imo State. That it is also evident that the appellant lives in the village at their Awo-Mbieri in Mbaitoh LGA, and also resides at No. 21, Njemanze Street, Owerri. However, counsel submits her indisposition on the date of the crime is not conclusive of her innocence. It is further contended that from the evidence of PW1, PW4 and the IPO, the appellant was at home on the day of the incident.
The Court is referred to pages 111 – 121 of the record of appeal. Submits that the prosecution witnesses’ evidence was not destroyed under cross examination and is therefore credible, cogent and reliable, and the trial Court relied on it. Counsel therefore submits that the appellant did not only conspire to commit the offence but actually participated in its commission.
Counsel further submitted Section 7(a) – (d) of the Criminal Code cannot be over emphasized in the circumstances as the appellant aided and abetted other persons, particularly the 1st accused (her brother) as she was placed/stationed on a look out while the 1st accused executed the killing of the deceased. Counsel also referred to the evidence of PW1 whom in the said evidence, he claimed that the appellant stopped people from entering their compound to fetch water from their borehole a week before the offence was committed. That the said action of the appellant was in furtherance of the common purpose, that is the murder of the deceased.
In reply to the contention of the appellant, that there was improper evaluation of evidence and the cited authorities, the respondent’s counsel disagrees and submitted that the authorities cited are not applicable. Submits that the judgment of the trial Court is unimpeachable, and not perverse. That the power of the appellate Court to interfere with the findings of fact of the trial Court is not automatic and does not arise in all circumstances. He relies on the case of Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 – 398 paras F – A ratio 7; and the case of Edilcon (Nig.) Ltd. v. UBA (2017) All FWLR (Pt. 901) 581 at 617 to 618 paras G – B, ratio 6. It is however contended that the trial Court properly discharged his judicial duty and was therefore correct in the findings of facts based on the proper evaluation of evidence. That the finding of the trial Court is therefore not perverse.
In reply to the argument of the appellant’s counsel that the defence of alibi was available to her when the evidence of the witnesses is considered together, it is submitted for the respondent that none of the witnesses testified with certainty that the appellant was not part of them and did not participate in the commission of the offence.
In sum, counsel urged the Court not to interfere with the findings of the trial Court and to dismiss the appeal and affirm the judgment of the trial Court.
In the reply brief, the appellant appears to reinforce his argument on the non-investigation of alibi even though the appellant discharged the evidential burden placed on her to give details of her whereabouts on the date and time the offence was committed. What however appears to me to be a new issue of law is the trial Court’s finding that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things. The concern of appellant’s counsel is the source of the trial Court’s finding. Submits that the finding is based on suspicion which cannot tantamount to guilt of the appellant.
RESOLUTION
On a calm consideration of the arguments proffered by both counsel, I am of the humble view that the following issue is best suited for the determination of the appeal:
“Whether on the totality of the evidence before the Court, the trial Court was not in error in the appellant’s conviction for the offence with which she was charged.”
The trial Court convicted the appellant because it was convinced that the charge was proved. This calls to question the burden of proof. It is settled law that the standard of proof in criminal cases is proof beyond reasonable doubt while the burden rests on the prosecution and never shifts, unless in cases in which the statute provides otherwise.
I rely on the following cases – Agugua v. The State (2017) LPELR – 42021 (SC), p. 38, paras E – F, Tobi v. The State (2019) LPELR – 46537 (SC), P. 24, paras C – D, Edun & Anor. v. FRN (2019) LPELR – 46047 (SC) p. 12.
It is also settled law that there are three (3) ways in which the guilt of an accused person may be proved:-
(i) By eye witness account of the commission of the offence,
(ii) By confessional statement of the accused person,
(iii) By circumstantial evidence.
I refer to the following cases on the issue – James Afolabi v. The State (2016) LPELR – 40300 (SC). Pp. 51 – 52, paras F – B, Demo Oseni v. The State (2012) LPELR – 7833 (SC) p. 41. Paras B – C, Darlington Eze v. FRN (2017) LPELR – 42097 (SC) p. 63, paras C – E.
It is not in doubt that there is no eye witness account that the appellant committed this offence. Equally not in doubt is that there is no confession to the offence by the appellant.
Therefore, the prosecution’s case against the appellant was wholly founded on circumstantial evidence.
The findings of the learned trial Judge in relation to the appellant who was the 5th accused person at the trial Court is contained at page 296 of the record of appeal. Hear him:
“Over now to the 5th accused Chinyere Ade Ndukwu. Her testimony was to the effect that on 4/11/2010, she was in Owerri doing her sporting activities and came back to her village around 7pm. While at home there was trouble in the compound and she called the 1st Accused person to find out where he was and told him to come back home. She denied the charge. This woman tried to raise the plea of alibi. She supplied the details of her whereabouts on that day to be. She was at the sports stadium and at Njewanze Street came back in the evening. She admitted making call to the 1st accused but for a different reason. In one breadth she said it was to tell him to come home for his food. In another to tell him to come home that the deceased was nowhere to be found.
The prosecution investigated this and found that on that day she was home to the village and made calls to the 1st accused.
Based on this, it is only evident that that plea has failed. The only option now open to the Honourable Court is to hold that she was a sort of linkman between 1st accused and the others, spying and relaying to them over the phone, the position of things. I hold therefore that Section 7 of the Criminal Code makes her criminis participes and therefore very much in the bargain to finish the deceased. She as equally found guilty as charged.”
This Court has a duty to consider the correctness or otherwise of these findings against the background of the evidence available to the Court on record. I will come to this later in the course of this judgment.
But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder. The ingredients, as settled in law are:
(i) That the deceased had died,
(ii) That the death of the deceased had resulted from the act of the accused person,
(iii) That the act which caused the death or grievous bodily harm was its probable consequences.
See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I.
It is pertinent to note that the appellant was jointly tried with other accused persons. Of those other accused persons, the 1st accused person (Uchenna Ndukwu) a brother of the appellant had made a confessional statement in which he incriminated the appellant as having assisted to facilitate the commission of the offence. He also incriminated the other accused persons. However, he subsequently retracted the aspect of his confessional statement in which he incriminated the other accused persons inclusive of the appellant. He claimed that while in detention the incriminating statement was made out of compulsion by the police. In the subsequent, the 1st accused person stated that he alone murdered the deceased. He restated this while testifying in his defence. In relation to the 5th accused person (the appellant, he stated thus in his evidence in his defence:
“I was not communicating with 5th accused as to know if the crime had been uncovered. 5th accused is a sports woman at Sports Council and lives at Owerri. We had no quarrel in our family between us but the deceased and PW2, Edwin Ndukwu had problem.” (See pages 162 – 163 of the record of appeal)
Further, the following was recorded at page 170 of the record of appeal on the questions put to the said 1st accused (as DW4) and his answer as it concerns the appellant:
“Q: Put: 5th Accused was mounted as sentry and alert you in any possible intrusion?
Ans.: Not true she was not at home.”
A careful reading of the record of appeal would reveal that the findings of the trial Court in which it finds the appellant guilty as “criminis participes” is based on the earlier incriminating statement of the 1st accused person, notwithstanding its subsequent retraction.
However, in law, the statement, whether retracted or not did not bind the appellant because she did not adopt it or admit it as true. See the following cases which lucidly established that when two or three persons are tried together, a confession by one of them which incriminates one or the others binds him alone, unless the confessional statement is made in the presence of the others and they decide to adopt it:- Tirimisiyu Adebayo v. The State (2014) 8 SCM 34 at 65 para. 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271 paras. D – G.
See also Section 29 (4) of the Evidence Act, 2011 which provides:
“Where more persons than one are charged jointly with an offence and confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words as conducted.”
All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on cogent and credible evidence other than reliance on the confessional statement made by one of the co-accused persons which incriminates one or the others.
This statement of the law therefore renders the evidence of PW1 regarding the 1st accused person’s confession made to her in which she gave the damning incriminating evidence against the appellant as narrated to her by 1st accused person (Uchenna Ndukwu) worthless in the conviction of the appellant.
The evidence of PW1, apart from a narration of a confession made by one co-accused person against another which Section 29(4) of the Evidence Act, 2011 makes it inadmissible against the appellant, it was hearsay so long as she was narrating what she claimed the 1st accused person told her.
It is of course settled law that hearsay evidence is not admissible to prove any fact – Buhari & Anor. v. Obasanjo & Ors. (2005) LPELR – 85 (SC) p. 209 paras. C – D, Kasa v. State (1994) LPELR – 1671 (SC), p. 18 para. A, Ukut v. State (1995) LPELR – 3351 (SC) p. 29, paras C – F.
I have in the course of the treatise of the issues thrown up for consideration held that there was neither direct eye witness account of the commission of the offence by appellant or a confessional statement that she committed the offence. However, it is agreed in law that there is a presumption of correctness in favour of the judgment of a Court. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed – Babatunde & Ors. v. Olatunji & Anor (2000) LPELR – 697 (SC), p. 15 paras. A – F, Ogene v. Ogene & Anor. (2007) LPELR – 8156 (CA) pp. 16 – 17 paras C – E, Dahiru & Anor v. Kamale (2004) LPELR 11135 (CA), pp. 50 – 57, paras. E – A.
Therefore, it follows that a judgment that is right cannot be set aside because it is founded on a wrong reason.
In other words, an appellate Court is basically concerned with the correctness of the decision of the Court from which the appeal emanated, not the reasons given for the decision. See the case of Dolor v. The State (2020) LPELR – 52445 (CA), p. 10 paras. A – B, Folakemi Osin v. FRN (2017) LPELR – 46219 (CA), p. 19, paras A – C, Master Holding (Nig.) Ltd. & Anor v. Emeka Okefiena (2010) LPELR – 8637 (CA), pp. 28 – 29, paras. B – A.
I consider it imperative to consider the availability of circumstantial evidence on the standard required by law that can serve as a tripod on which the conviction of the appellant can be sustained. The Nigeria Criminal jurisprudence is replete with several definitions of circumstantial evidence, all of which lead to one general or common effect. In the case of Musa Mamman v. The State (2015) LPELR – 255963 (CA), circumstantial evidence was defined as:
“Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490. It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as 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. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference. All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.”
Per ABIRU, JCA (Pp. 27-29, paras. C-B)
See also the case of Nwielo v. The State (2021) LPELR – 56302 (CA) p. 19 – 20, paras. E – A.
In the judgment of the trial Court, the learned trial Judge found that the appellant’s defence of alibi was investigated by the prosecution which found out that the appellant was at home in the village and made phone calls to the 1st accused. Thus he found that the plea of alibi failed, and therefore concluded that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things, and constituted herself a criminis participes to the crime of murder. This is where I think the trial Court resorted to circumstantial evidence in the absence of direct proof that the phone calls between the 1st accused person and the appellant centered on the role attributed to the appellant in the whole saga. This issue was considered along with the trial Court’s acceptance of the prosecution’s evidence that the appellant’s defence of alibi was investigated and found to be false.
Before I conclude on circumstantial evidence and whether the Court could rightly convict the appellant on circumstantial evidence, it is pertinent to consider the claim of the prosecution which the trial Court accepted that the defence of alibi set up by the appellant was found to be false.
The expression “alibi” simply means elsewhere. By the defence, the accused claims or says that he was in a place other than the scene of crime – See the case of Ochemaje v. The State (2008) LPELR – 2198 (SC). See also the following:-
Nwabueze & Ors. v. State (1988) LPELR – 2080 (SC) p. 15, paras. B – D, Eyisi & Ors. v. State (2000) LPELR – 1186 (SC), p. 67 paras C – D.
Once the defence of alibi has been raised timeously and with sufficient particulars, it is the duty of the police to investigate it in order to verify the claim. Failure to do so is fatal to the prosecution’s case. See the case of Opeyemi v. The State (2019) LPELR – 48764 (SC), pp. 26 – 27 paras. F – A. See also Onuchukwu & Ors. v. State (1998) LPELR – 2701 (SC), p. 19, paras. A – B, Dogo & Ors. v. The State (2001) LPELR – 956 (SC), p. 32, paras B – F.
The prosecution in this case claims that the defence of alibi set up by the appellant was investigated and she was found to be at home in the village on the 4/11/10, the date of the murder. The appellant did not claim that she was not at all in the village on 4/11/10. No! What she stated was that she was in the village on 4/11/10 but between 7am – 8pm she went for training in Owerri, being a sports woman, a fact admitted by the prosecution and other witnesses. She gave details of her whereabouts at Owerri up to the time she went back home at about 8pm in the evening.
To properly investigate these claims and disprove it, the police were supposed to have gone to all the places she named and having investigated, and if found to be false, present those that were interviewed as prosecution witnesses to testify before the Court as to the fact that on the material date the appellant claimed that she was with them, she was not, and to be properly cross-examined by counsel to the appellant. Here, however, all that the police told the Court is that he investigated the alibi and found that the appellant was at home in the village on the material date. The police did not tell the Court who verified that claim to him and at where and at what time. The ipse dixit of the police that they investigated the alibi and found it to be false is not only insufficient, but unreliable.
In any view, the evidence of the police on the appellant’s alibi has no probative value. The learned trial Judge was therefore clearly in palpable error to rely on it. It has the effect of the alibi set up by the appellant having not been investigated. In the case of Monday Odu & Anor. v. The State (2001) LPELR – 2231 (SC), p. 7 paras E – F, it was held that there are occasions on which failure to check an alibi may cast doubt on the reliability of the case of the prosecution; yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. In the instant appeal, there is no positive evidence which cancels the alibi. The prosecution’s case is substantially built on the evidence of PW1 which implicated the appellant. Like I earlier stated elsewhere in this judgment, apart from the confessional statement of 1st accused having been retracted, in law it only binds him. See Section 29 (4) of the Evidence Act, 2011. The prosecution’s case is also founded on the evidence of PW1 which, apart from being hearsay, is based on the confession she said were made by the said 1st accused person to her in which he incriminated the appellant. The 1st accused, as noted, and as can be verified from the record retracted the confession and claimed that the police forced him to make those statements. He told the Court that he murdered the deceased all by himself. The prosecution did not believe him. The trial Court did not too because of the glasses of wine they found in the living room of the deceased. Suspicion it is, indeed very strong suspicion, but there must be cogent and reliable evidence to back up the suspicion. No evidence at all, not even circumstantial evidence on the standard required by law for the conviction.
There was without doubt, no legally acceptable evidence for the finding of the Court that the only option open to it is to hold that the appellant was a sort of linkman between the 1st accused person and the others, spying to them over the phone and reporting things.
With no iota of legally admissible evidence to prop up the conviction of the appellant except the misconceived confession of the 1st accused and evidence of PW1 and PW4, the conviction of the appellant is perverse and cannot be allowed to stand.
Therefore, I find this appeal loaded with merit and I hereby allow it. In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February, 2013 is hereby set aside as against the appellant in this appeal.
The conviction and sentence imposed on the appellant is hereby set aside.
Consequently, she is hereby discharged and acquitted and is ordered to be released from the correctional facility forthwith.
IBRAHIM WAKILI JAURO, J.C.A.: I have read before now the draft of the Judgment delivered by my Learned brother James G. Abundaga, JCA. I must say his Lordship has extensively dealt with this appeal such that I have nothing to add. I also allow the appeal it is meritorious. I abide by the orders made by his Lordship.
ADEMOLA SAMUEL BOLA, J.C.A.: The judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA, was read in draft by me. I am in agreement with the reasoning and conclusion. I have nothing to add.
In effect, I abide by the conclusion and orders made.
Appearances:
I. B. B. Madubuko. For Appellant(s)
C. O. Chukwuma-eze. For Respondent(s)
