NDUKWU v. STATE
(2022)LCN/17197(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/65C/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
EKENE NDUKWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: –
Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v. FRN (2019) LPELR–46947 (SC) P. 12.
It has also been established in law that the guilt of an accused person can be proved in three ways, to wit:
(I) By eye witness account of the Commission of the offence,
(II) By confessional statement of the accused person,
(III) By circumstantial evidence.
The following judicial authorities are instructive:
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 TO SUSTAIN A CONVICTION FOR CHARGE OF MURDER
To sustain a conviction for charge of murder, the following ingredients must be proved:
(1) That the deceased had died
(2) That the death of the deceased had resulted from the act of the accused person;
(3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences.
See the following cases:
Mayaki v. The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. PER ABUNDAGA, J.C.A.
THE POSITION OF LAW ON CIRCUMSTANTIAL EVIDENCE
The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v. The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined:
“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 Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.
The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:-
(I) the irresistible and unequivocal conclusion of the guilt of the appellant.
(II) that no other reasonable inference could be drawn from it.
(III) that there is no co-existing circumstances which could weaken the inference. 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 (3rd Accused) is aggrieved with his 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 his brief of argument. The brief of argument settled by his 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 24/1/22, and deemed properly filed on 9/2/21.
The briefs of argument were adopted on 24/01/22.
In the appellant’s brief of argument, the three issues were identified for determination:
(I) Whether the prosecution investigated the defence of alibi raised by the appellant on this charge and the effect of failure to do that in the circumstances of this case.
(II) Whether the prosecution proved this charge against the appellant beyond reasonable doubt to warrant his conviction of it.
(III) Whether the trial Court properly evaluated the evidence before him concerning the Appellant.
The respondent in her brief of argument formulated two issues for determination to wit: –
(I) Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant as a party to the offence, his plea/defence of alibi having failed.
(II) Whether in view of the well considered facts and proper evaluation of the evidence(s) before the lower Court, the judgment of 18/2/2013 is not a fair judgment and ought to be sustained.
Argument on the issues
It is contended by the appellant that where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt.
It is submitted that the essential ingredients of the offence of murder are:-
(a) That the deceased died.
(b) That the death of the deceased was caused by the accused.
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The case of Michael v. State (2008) All FWLR (Pt. 431) 875 was referred to.
Counsel drew the attention of the Court to the holding of the Court which was the basis of his conviction. The Court said:
“He (appellant) knew how the 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got his wound. I am convinced that he was a party to the killing of the deceased”.
Counsel submits that there is no material evidence before the Court which satisfies the requirement of proof beyond reasonable doubt. It is further submitted that DW4 (1st accused) confessed that he killed the deceased. That in addition, the appellant set up alibi which was not investigated by the police. This is in addition to the fact that the evidence against the appellant is weak.
It is contended by the appellant that he set up the defence of alibi, and stated where he was, which is, elsewhere other than where he was alleged to have committed the offence. That he thus discharged the evidential evidence on him, by providing details of where he was but the police did not bother to investigate it. The prosecution, counsel submits did not lead any strong evidence connecting the appellant with the commission of the offence. That they did not debunk the alibi that he raised.
On the effect of a failure to cross-examine a witness on a material fact, it is submitted that the implication is that the adversary accepts the matter as led in evidence. Reliance is placed on the case of Oforlete v. The State (2009) 8 ACR, Vol. 8 page 398.
It is further submitted that the standard of proof required to establish alibi is one based on balance of probabilities. Further on alibi, the cases cited, include Obalum Anakwe v. The State (1976) 10 SC 225 p. 264.
Submits that before a Court may draw inferences of guilt, it must be sure that there are no other co-existing circumstances that would weaken such inference.
Counsel refers to the aspect of the trial Court’s judgment where the learned trial Judge allegedly found that the appellant was neck deep in the whole episode of the murder of the deceased, and submitted that none of the prosecution witnesses mentioned anything like that in their various statements to the police in the course of investigation or in Court. Submits that the appellant should be entitled to the benefit of doubt where doubt is created by the inability of the police to investigate the alibi raised at the earliest time. Reliance is on the case of The State v. Aibanbee & Anor (1988) 7 SCNJ 128.
The Court is therefore urged to discharge and acquit the appellant having allowed the appeal.
Respondent’s counsel submits that the ratio decidendi of the judgment is not the trial Judge’s statement that the appellant was neck deep in the whole episode. The ratio decidendi, counsel submits is that the appellant was a party to the killing of the deceased. Referring to the alibi set up by the appellant counsel submits that the alibi at one breath removed him from home on the date of the incident and in another placed him at home throughout the day of the incident. That inherent in the alibi is contradiction, which counsel submits is material. That in this instance, the Court cannot pick and choose which evidence to believe and which to disbelieve.
On the issues submitted by the appellant for determination, it is submitted for the respondent that why one of the three issues was argued while the other was abandoned.
Revisiting the defence of alibi raised by the appellant, it is submitted by respondent’s counsel that the appellant raised it and went to sleep without establishing it.
In further argument to support appellant’s conviction, it is submitted for the respondent that the appellant took part in the offence, and cites in support Section 7 (a), (b), & (c) of the Criminal Code. Also cited is George v. FRN (2011) 10 NWLR (Pt. 1254) 1.
Counsel pointed out that DW2, John Emesiobi convened a meeting at his house where the 1st accused (appellant’s brother) and other accused persons were present and conspired to kill the deceased. That the mere fact that the appellant was not present physically at that meeting is not conclusive that he is innocent or not part of the conspirators to the offence. Explaining further the concept of conspiracy, the Court is referred to the case of Oyediran v. Republic (1967) NMLR 122. Submits that the elements that define conspiracy are found in the instant appeal.
Specifically, counsel refers the Court to pages 77–95 to the evidence of PW1 as to what the appellant did on the day the body of the deceased was retrieved during the search. That the appellant drew the attention of the search team to the direction that the deceased body was found in the bush. That the evidence of PW1 as to what the appellant did during the search was corroborated by the evidence of PW2 (Edwin Nwabueze Ndukwu) who it was that reported and invited the police. That the appellant was heard to say – “Bianu ebe oo”, and when he was asked what happened, he was mopping at them. That the defence did not cross-examine the witness on that piece of evidence, therefore, counsel submits that Court is entitled to accept and act on it, the case of Patrick Oforlete v. The State (2000) All FWLR (Pt. 12) 2081 was cited in support of this submission.
It is contended that the 1st, 3rd and 5th accused persons are siblings. Therefore, counsel submits it stands to reason and commonsensical that the 1st accused intentionally pleaded guilty to the offence and claimed that he did it alone to save his other siblings. The law, further submitted by counsel is trite that sentiments no matter how well crafted commands no place in law.
Submits that the judgment is without fault and is a product of proper evaluation of the evidence before the Court which the trial Judge rightly ascribed probative value to. It is therefore contended that the judgment is not perverse.
On the proper Court that can evaluate evidence being the trial Court, not a few cases are cited, and they include Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 paras F–A, Ratio 7; Shamaki v. Baba (2000) All FWLR (Pt. 26) 1878 at 7888, paras D–E, ratio 6, Okala v. Udah (2019) All FWLR (Pt. 1021) 203 at 231 to 232 paras B–A, P. 206; to mention but some.
Therefore, counsel submits, the evaluation of evidence on record having been properly and rightly done, and probative values ascribed thereto, the appellate Court is deprived of the vires to interfere with it. All the submissions of the appellant’s counsel should be discountenanced, it is further contended for the Respondent.
The Court is therefore urged to dismiss the appeal as same is lacking in merit.
RESOLUTION:
All the issues formulated and argued by the appellant and the respondent coalesce to one broad issue, which is, whether the charge of murder was proved beyond reasonable doubt against the appellant to warrant his conviction.
A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: –
Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v. FRN (2019) LPELR–46947 (SC) P. 12.
It has also been established in law that the guilt of an accused person can be proved in three ways, to wit:
(I) By eye witness account of the Commission of the offence,
(II) By confessional statement of the accused person,
(III) By circumstantial evidence.
The following judicial authorities are instructive:
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.
A careful review of the evidence adduced in this case reveal quite clearly that there is no eye witness account of anyone who saw the appellant either by himself alone, or acting in concert to murder the deceased, Chief (Sir) Augustine Ndukwu. It is also correct to state that the appellant did not confess to the murder of the deceased.
Apart from there being no evidence on record to the appellant either murdering the deceased or confessing to his murder, the judgment of the trial Court, particularly the finding attest to the position which I humbly hold.
The learned trial Judge at pages 294–295 made the following findings concerning the 3rd accused person, who testified for himself as Dw3:
“Then over to the case of DW3 – Ekene Ndukwu. His counsel stressed the point that 1st accused had already claimed personal responsibility for the murder of the deceased. This issue I must straightaway discountenance as no reasonable tribunal will believe that 1st accused did the murder single handedly. This being so, counsel submitted further that the prosecution linked him with the murder because according to them his conduct that night of the search was indicative that he had some knowledge of the murder. He tried to say that during the search according to PW1, 3rd accused said – “Wetanu oku ebeaoo” meaning – bring light to this place. PW2 in his evidence said “Biano ebeo” meaning come this way. He submitted that these two statements are contradictory and not explained. He cited the case of EBONG VS. STATE (2012) ALL FWLR Pt. 633 1945 at 1978 to buttress this contention. He further stated that the statements are based on suspicion and as held in the case of TORRI VS. NATIONAL PARK SERVICE (2011) VOL. 7 Pt. 300 pg. 2239, suspicion, no matter how strong, cannot ground conviction on the side of the prosecution. PWS 1 and 2 during the search overheard DW3 utter the words. This was to direct the team even though when the team got to where he was, nothing could be seen. It was only when the team entered the bush that they discovered the bodies of the deceased and his gardner. This piece of evidence the defence did not destroy. It was this DW3 who move or else drew attention of the search party to the place of discovery. The defence did not destroy this evidence which was corroborated by both PWS. 1, 2 and 3. The words “wetanu oku ebeo” and “Bianu ebeoo” all are taken to mean simply drawing attention to a particular place. We are not here doing a case of slander where all those who heard the word must hear the same thing said in the way it was said. There was a confusion team practically searching for the body of the deceased and in the night. Anyone knowing the spot is not precluded from showing the way. Moreover, it must be remembered that this was in the night hence the use of light. When he was confronted as the team saw nothing where he was standing he simply kept mute and only continued to mope. This is more than suspicion. The defence had all the chance in the world to debunk this piece of evidence but either did not know, did not want or better still neglected to do so. In the Supreme Court case of PATRICK OFORLETE VS. THE STATE (2000) FWLR Pt. 12 Pg. 12 2081, it was therein held that there –
“The Court is entitled and indeed bound to accept evidence unchallenged under cross-examination, provided such evidence by its nature is not improbable”.
3rd accused was neck deep in the whole episode. Looking at Exh. 8, one can also see that he knew how 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got the wound. I am convinced that he was party to the killing of the deceased and so find him guilty as charged”.
It is therefore apparent from the foregoing that the conviction of the appellant is based on circumstantial evidence.
Let me digress at this juncture to state what the prosecution must prove in order to sustain a conviction for the offence of murder.
To sustain a conviction for charge of murder, the following ingredients must be proved:
(1) That the deceased had died
(2) That the death of the deceased had resulted from the act of the accused person;
(3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences.
See the following cases:
Mayaki v. The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I.
It is instructive to note that the 1st accused who was jointly tried with the appellant made a confessional statement that he alone murdered the deceased. He repeated this in his defence. The prosecution did not believe him. The Court too did not believe him. Whether the Court believes him or not is not material because even if he had in his extra-judicial statement and his evidence in Court incriminated the appellant, the appellant except he adopts such confession or statement will not be bound. See the following cases – Tiremisuyu 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 Section 29(4) of the Evidence Act, 2011.
All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on the evidence adduced by it which proves the appellant’s guilt beyond reasonable doubt.
This leads me to the consideration of the kind of circumstantial evidence on which an accused person can be convicted for a criminal offence, and in the instant case of murder, the ingredients of which I had earlier set out.
The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v. The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined:
“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 Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.
The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:-
(I) the irresistible and unequivocal conclusion of the guilt of the appellant.
(II) that no other reasonable inference could be drawn from it.
(III) that there is no co-existing circumstances which could weaken the inference.
My lordships are invited to follow me in considering the evidence against the appellant for the purpose of answering the question, just before now posed as to the satisfaction of the three conditions which in law must all together be satisfied before a conviction can be convincingly secured beyond reasonable doubt against the appellant based on circumstantial evidence. The evidence are:
(1) In the course of searching for the deceased in the bush around his residence, the appellant who was with them in the search suggested a direction in which the search should be directed. It has become a reason for his conviction. This piece of evidence sounds too remote to me. It is natural that a search party would normally suggest different directions which they should take in the search. Any other person other than the appellant could have suggested the direction the appellant suggested. Could that have meant that such a person participated in the murder of the deceased? Or it is being suggested that because the 1st accused who admitted that he murdered the deceased all by himself is a sibling of the appellant, different consideration should apply? This to me is a suspicion carried too far. It is settled in law that suspicion no matter how strong cannot take the place of legal proof. See Alake v. The State (1992) LPELR–403 (SC) P. 15 paras D–E, Ogba v. State (1992) LPELR–2273 (SC), PP. 23–24, paras G–A, Etumonu v. A.G. Delta State (1994) LPELR–14361 (CA), P. 13, paras A–E, Ahmed v. State (2001) LPELR–262 (SC) P.18, paras A–G.
(2) In his extra-judicial statement, (Exhibits 9 and 10) and in his evidence in Court as DW3, he stated that when he noticed his sibling (1st accused) with a wound in his palm and asked him how he came about it, his brother explained that he got it in an altercation with a friend of his to whom he went to recover his debt. Here, the prosecution suggested and the trial Court accepted that the appellant must know something about how the 1st accused received the cut in his hand. This to me also sounds a ludicrous suspicion. I am not in the least convinced that it affords any circumstantial evidence at all, let alone to form the basis for the conviction of the appellant in a charge of murder.
(3) The trial Court used Exhibit 8 in arriving at its finding that the appellant knew how the 1st accused got the wound in his hand. See page 295 of the record of appeal. Exhibit 8 is the extrajudicial statement of the 4th accused person (Reuben Okasi). In his statement, he denied any involvement in the murder of the deceased. (See page 113 of the record of appeal). There is nothing in his statement that incriminates the appellant. But even if it does, being a statement made by one co-accused person against another, it cannot bind the appellant except it was made in his presence and he adopts it. I am therefore unable to see what the learned trial Judge “looked” in Exhibit 8 that got him convinced that he knew how the 1st accused person got his wound.
(4) The inconsistency between the two statements of the appellant (Exhibits 9 and 10) as to his whereabout on the date of the incident.
In his statement made on 8/11/10 (Exhibit 9) he stated that on 4/11/10 he went to Nwaorieubi in search of job, and was indeed not at home when Chief Augustine (the deceased) came back home. However, in his statement made on 17/12/10, he stated that on 4/11/10 he was at home throughout, and in the night he heard that they were looking for their Cousin Chief Augustine. In his submission, learned counsel for the appellant contended that the appellant raised alibi at the earliest opportunity when he was arrested but that the said alibi was not investigated. On the other hand, the prosecution referred to the inconsistency in the two statements and waved away the non–investigation of the alibi by the police. I cannot fault the prosecution. Alibi simply means elsewhere. When that defence is raised, the accused person claims that he was in a place other than the scene of crime. See the case of Ochemaje v. The State (2008) LPELR–2198 (SC), Nwabueze & Ors. v. State (1988) LPELR–2080 (SC), P.15 paras B–D, Eyisi & Ors. v. State (2000) LPELR–1186 (SC), P. 61 paras C–D.
If the appellant had stuck to his statement made on 8/11/10, the submission that his alibi was not investigated and the legal consequences to the prosecution’s case would have substance. However, the appellant lost that right when in his statement of 17/12/10, he stated that he did not go to Nwaorieubi in search of work but was at home. It is settled law that for alibi to be worthy of investigation the defence of alibi must be precise and specific in terms of the place that the accused was, and the persons he was with and possibly what he was doing at the material time. It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. See the case of The State v. Inya Adu (2021) LPELR – 56616 (SC), PP. 76 – 80, paras F – D.
It is my conclusion that the defence of alibi does not avail the appellant.
But so what now?
When a Court reaches the conclusion that the defence of alibi fails, the Court is left with the evidence which fixes the accused person at the scene of crime. In this case, there is no direct eye witness that fixed the appellant to the scene of crime. The only available evidence is circumstantial evidence which I have earlier considered and arrived at the conclusion that it did not irresistibly, positively and unequivocally point to the guilt of the appellant in the murder of the deceased. This again leaves the Court with another incidence of suspicion, which as earlier shown in a plethora of judicial authorities cannot take the place of legal proof.
I must say this; the dastardly murder of the deceased is most despicable and condemnable. However, it does not justify sending another innocent soul to the gallows on mere suspicion no matter how strong.
Therefore, I find merit in this appeal and 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 are hereby set aside.
Consequently, he is hereby discharged and acquitted and is ordered to be released from the Correctional facility forthwith.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my Learned brother James G Abundaga, JCA. I entirely agree with the reasoning and conclusion in the lead judgment that this appeal is meritorious and same is allowed by me. The appellant is discharged and acquitted as ordered.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment just delivered by my learned Brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with the reasoning and conclusion of the learned jurist as encapsulated in the judgment.
I have no reason to depart from them.
Against the backdrop, I adopt the conclusions and the consequential orders made.
Appearances:
I. B. B. Madubuko For Appellant(s)
C. N. Akowundu, S.G/Permanent Secretary, Ministry of Justice, Imo State, with him, V. E. Ekemgba, and C. O. Chukwumaeze For Respondent(s)
