OBA GABRIEL ADEPOJU ADEYEMO v. THE STATE
(2012)LCN/5348(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/I/128/2009
RATIO
APPEAL: PURPOSE OF A BRIEF
The idea of a Brief is to develop and amplify arguments on points and issues covered by the grounds of appeal or ultimately it is only on those grounds and on them alone that the appeal will have to be allowed or dismissed. PER ADZIRA GANA MSHELIA, J.C.A.
APPEAL: EFFECT OF AN ISSUE TAKEN UP IN A BRIEF BUT WAS NOT MADE A GROUND OF APPEAL
An issue taken up in a Brief but which was not made a ground of appeal ought to be ignored by an appellate court. It is incompetent and liable to be struck out. I will treat issue 3 as a non-issue in this court as it was not covered by any ground of appeal. See Western Steel Works vs. Iron. & Steel Workers Union of Nigeria (1987) 7 NWLR (pt.49) 284 and Ndukwa vs. State (2009) 7 NWLR (pt.1139) 43 at 74-75; Alhaji Animashaun vs. University College Hospital (1996) SCNJ 179 at 184 (1996) 70 NWLR (pt.476) 65 and Chief Agbaisi and 3 Ors vs. Obikorefe & 6 Ors (1997) 4 NWLR (Pt.5202) 630 at 650. PER ADZIRA GANA MSHELIA, J.C.A.
WORDS AND PHRASES: MEANING OF AN ALIBI
Alibi as defined in the case of Iheonunekwu Ndukwe vs. The State supra at 43 means “a defense that places the accused at the relevant time of crime in a different place than the scene involved and so removed there from as to render “it impossible for him to be the guilty pari”. The word Alibi as defined in Oxford Advanced Learner’s Dictionary 7th Edition means:
“evidence that proves that a person was in another place at the time of a crime and so could not have committed it”. PER ADZIRA GANA MSHELIA, J.C.A.
EVIDENCE: DUTY OF PROSECUTION TO CHECK ON ALIBI RAISED BY AN ACCUSED PERSON
It is now settled that even though it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea, ineffective as a defence. See Ndukwe vs. The State (supra); Patrick Njovens & Ors vs. The State (1973) 1 NMLR 331; Gachi & Ors vs. The State (1965) NMLR 333 and Yanor & Anor. vs. The State (1965) 1 ANLR 199 and Umani vs. State (1988) 1 NWLR (pt.70) 274. PER ADZIRA GANA MSHELIA, J.C.A.
CRIMINAL LAW: DUTY OF A CITIZEN IN RELATION TO CRIME
In David Omotola & Ors. v. The State (2009) 3 SCM 127 at 143 the apex court per Oguntade JSC stated thus:
Every citizen has the duty to come, forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a court case — But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased, or tainted”,
See also Sunday Emator vs. State (1975) 9-11 SC 107. PER ADZIRA GANA MSHELIA, J.C.A.
CRIMINAL LAW: NATURE OF CONSPIRACY
The burden of proving the allegation of conspiracy is on the prosecution and same must be proved beyond reasonable doubt. The offence of conspiracy is complete when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means and is unusually based on circumstantial evidence. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. It is immaterial that the persons had not met each other. See Okosun & Ors vs. A. G Bendel State (1985) Vol. 16 N.S.C.C. (Pt.11) 1327, (7985) 3 NWLR (Pt.12) 283 and Onochie vs. The Republic (1966) vol. 4 N.S.C.C.73; Oduneye vs. The State (2001) 2 NWLR (Pt.697) 377 of 321, Patrick Njoverns vs. The State (1973) 5 SC 17 and Upatar vs. The State (2003) 6 NWLR (Pt.816) 230 at 293. The trial court may also infer conspiracy from a set of facts through which a common purpose is achieved. See:- Gbadamosi vs. the State (1991) 6 NWLR (Pt.196) 182; Aje vs. The State (2006) 8 NWLR (Pt.982) 345 at 363 and Adejobi vs. State (2011) 12 NWLR (Pt.1261) 347 at 378-379. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
OBA GABRIEL ADEPOJU ADEYEMO – Appellant(s)
AND
THE STATE – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abass J. of the High Court of Justice Oyo State, sitting at Ogbomoso, Ibadan Judicial Division, delivered on the 29th day October 2008 wherein appellant was convicted for the offences of conspiracy to commit murder and murder and sentenced to death by hanging.
The Appellant was charged with two other accused persons at the High Court of Oyo State, holden at Ogbomoso, for the following offences; (a) Conspiracy to commit murder; (b) murder; (c) causing bodily harm and unlawful possession of charms contrary to sections 516, 319 (1); section 335 and 213 (B) of the Criminal Code, Cap 30, vol, II Laws of Oyo State of Nigeria, 1978.
The offences alleged against the accused persons and their particulars are;
STATEMENT OF OFFENCE
1. Conspiracy to commit felony to wit: Murder contrary to and punishable under Section 516 of the Criminal Code, Cap.30, vol. II Laws of Oyo State of Nigeria, 1978.
PARTICUIARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’, Gabriel Ojetayo ‘M’ Isaac Oguniyi ‘M’ and Sunday Akinade ‘M’, on or about the 14th day of February, 2001 at Oko-Ite in the Ogbomoso Judicial Division conspired together to murder Azeez Raji ‘M’.
STATEMENT OF OFFENCE
2. Murder contrary to Section 319 (1) of the Criminal Code, Cap. 30. Vol, II, Laws of Oyo State of Nigeria, 1978.
PARTICULARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’ Gabriel Ojetayo ‘M’, Isaac Oguniyi ‘M’ and Sunday Akinade ‘M’, on or about the 14th day of February 2001 at Oko-Ile in the Ogbomoso Judicial Division murdered Azeez Raji ‘M’.
STATEMENT OF OFFENCE
3. Grievous bodily harm, contrary to Section 335 of the Criminal Code, cap, 30, vol. II, Laws of Oyo State of Nigeria, 1978.
PARTICUIARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’, Gabriel Ojetayo ‘M’, Isaac Oguniyo ‘M’ and Sunday Aiubade ‘M’ on or about the 14th day of February 2001 at Oko-Ite in the Ogbomoso Judicial Division unlawfully injured Waliu Lawal ‘M’.
STATEMENT OF OFFENCE
4. Grievous bodily harm, contrary to Section 335 of the Criminal Code, Cap. 30, Vol. II, Laws of Oyo State of Nigeria, 1978.
PARTICUIARS OF OFFENCE
Oba Gabriel Adeyemo ‘M’, Gabriel Ojetayo ‘M’, Issac Oguniyi ‘M’ and Sunday Ajubade ‘M’. on or about the 14th day of February, 2001 at Oko-Ile in the Ogbomoso Judicial Division unlawfully injured Mamudu Bello ‘M’.
STATEMENT OF OFFENCE
5. Grievous bodily harm, contrary to Section 335 of the Criminal Code, Cap. 30. IL Laws of Oyo State of Nigeria, 1978.
PARTICULARS OF OFFENCE
Oba Gabriel Adepoju ‘M’ Gabriel Ojetayo ‘M’ Isaac Oguniyi ‘M’ and Sunday Akinade ‘M’ on or about the 14h day of February, 2001 at Oko-Ite in the Ogbomoso Judicial Division unlawfully injured Adebisi Omoboyede ‘M’.
STATEMENT OF OFFENCE
6. Grievous bodily harm, contrary to Section 335 of the Criminal Code, Cap, 30, vol. II, Laws of Oyo state of Nigeria, 1978.
PARTICULARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’ Gabriel Ojetayo ‘M’, Isaac Oguniyi ‘M’, and Sunday Akinade ‘Mi on or about the 14th day of February, 2001 at Iko-Ile in the Ogbomoso Judicial Division unlawfully injured Yisau Raji ‘M’.
7. Grievous bodily harm, contrary to Section 335 of the Criminal Code, Cap. 30, Vol. II Laws of Oyo State of Nigeria, 1978.
PARTICUIARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’ Gabriel Ojetayo ‘M’ Isaac Oguniyi ‘M’ and Sunday Akinade ‘M’ on or about the 14th day of February, 2001 at Oko-Ile in the Ogbomoso Judicial Division unlawfully injured Bashiru Raii Adeyanju ‘M’.
STATEMENT OF OFFENCE
8. Unlawful possession of criminal charms, contrary to Section 213 (B) of the Criminal Code Cap. 30, Vol. II Laws of Oyo State of Nigeria, 1978
PARTICUIARS OF OFFENCE
Oba Gabriel Adepoju Adeyemo ‘M’, Gabriel Ojetayo ‘M’ Isaac Oguniyi ‘M’ and Sunday Akinade ‘Mi on or about the 14th day of February, 2001 at Oko-Ile in the Ogbomoso Judicial Division unlawfully had in your possession some native juju (locally made charms).
The brief facts as presented by the prosecution are that on the 14th day of February, 2001 at about 12 noon, Basiru Raji (PW2) and his family arrived Oko-Ile their home town haven been earlier driven out of town as a result of the chieftaincy dispute between them and the Appellant. PW2 and his family, were in front of one Pa Omoboyede’s house when Joseph Areo and Emmanuel Oke, two of the Appellant’s supporters, accosted them and demanded for why they were in Oko-Ile, haven been told not to come back to the town. The appellant’s supporters thereafter went and ring the church bell to gather other appellant’s supporters. The appellant thereafter led his supporters to attack the PW2 and his family and supporters and in the course of this attack, the appellant and two other co-accused killed Azeez Raji while some other persons were injured.
At the trial court, the prosecution called six (6) witnesses and tendered several exhibits whilst the appellant and two other co-accused called eleven (11) witnesses including themselves. The learned trial Judge, after hearing the evidence and addresses of counsel, evaluated the evidence adduced before him and on the 29th day of October, 2008, delivered a Judgment wherein the appellant and the co-accused were found guilty of the offences of conspiracy to commit murder and murder of Azeez Raji and sentenced to death by hanging. The appellant and the co-accused were discharged and acquitted on the other two counts of causing grievous bodily harm and unlawful possession of criminal charms.
Not satisfied with the judgment of the trial court, appellant lodged an appeal to this court vide his Notice of Appeal undated but filed on 13/01/09 containing four (4) grounds of appeal.
In accordance with the practice of this court parties exchanged briefs of argument. Appellant’s brief dated 27/4/10 was filed on 9/7/10 but deemed properly filed on 16. Respondent’s brief of argument dated 8/4/11 was filed on 12/4/11 but deemed properly filed on 21/6/11. When the appeal came up for hearing appellant’s Counsel Mr. Michael F. Lana adopted the appellant’s brief of argument and urged the court to allow the appeal and set aside the conviction and sentence. Mrs Awosemusi Senior legal officer Ministry of Justice, Oyo State adopted respondent’s brief of argument and urged the court to dismiss the appeal as lacking in merit.
Appellant distilled three issues for determination as follows:-
1. Whether the prosecution disproved the defence of Alibi raised by the appellant. Grounds 2 and
2. Whether the prosecution proved its case beyond reasonable doubt Ground 1 and 4.
3. Whether the learned trial judge properly evaluated the evidence before coming to its conclusion convicting the accused persons of conspiracy and murder.
Respondent distilled two issues for determination as follows:-
(i) Whether the defence of alibi raised by the appellant is available to him.
(ii) Whether the court below was right in holding that the prosecution proved its case against the appellant beyond reasonable doubt.
Issues 1 and 2 formulated by both appellant and respondent are similar except the third issue. I will adopt the issues formulated by the appellant in determining this appeal.
I note that issue 3 (three) was not distilled from any ground of Appeal. It is not permissible for an appellant to introduce in his Brief of Argument issue or issues not covered by any ground of appeal. The idea of a Brief is to develop and amplify arguments on points and issues covered by the grounds of appeal or ultimately it is only on those grounds and on them alone that the appeal will have to be allowed or dismissed. An issue taken up in a Brief but which was not made a ground of appeal ought to be ignored by an appellate court. It is incompetent and liable to be struck out. I will treat issue 3 as a non-issue in this court as it was not covered by any ground of appeal. See Western Steel Works vs. Iron. & Steel Workers Union of Nigeria (1987) 7 NWLR (pt.49) 284 and Ndukwa vs. State (2009) 7 NWLR (pt.1139) 43 at 74-75; Alhaji Animashaun vs. University College Hospital (1996) SCNJ 179 at 184 (1996) 70 NWLR (pt.476) 65 and Chief Agbaisi and 3 Ors vs. Obikorefe & 6 Ors (1997) 4 NWLR (Pt.5202) 630 at 650.
Issue No 1 relates to defence of alibi raised by the appellant. While arguing this issue appellant’s counsel referred to the observation made by the learned trial Judge at pages 153 and 154 of the record and the statement of the appellant he made to the police admitted as Exhibits 17, 4 and 4A respectively, The contention of appellant’s counsel is that appellant was in his palace on the date of the incident with DW1 and he remained there throughout the day. That the fact that appellant claimed he sighted PW2 (Bashiru Raji) with his gang of armed supporters did not mean he left the palace as the prosecution did not prove the distance between the palace and the scene of crime or show that he could not see the scene of battle from his palace. It was further submitted that appellant got to know of the fight upon hearing one Thomas Akinade’s call for help and he saw him with blood. He said DW1 corroborated this evidence. Learned counsel further contended that the learned trial Judge did not consider other pieces of evidence on record. Reference was made to exhibit 17 and testimony of DW1, DW2, DW4, DW5 and DW8. In particular DW2, DW4, DW5 and DW8 at testified that they did not see the appellant at the scene. That the learned trial Judge did not consider the evidence of DW4, DW5 and DW8 at all before concluding that the police investigated the alibi and that the evidence placed the appellant on the scene of crime. It was also argued that the prosecution witnesses who testified that they saw the appellant at the scene of crime were all relations of the deceased and PW2 the main contender to the chieftaincy title with the appellant. That none of the defence witnesses is a relation of the appellant, Reliance was placed on the case of Azeez vs. State (2000) All FWLR (pt.337) 485 at 496 paras, C-D. see also Babalola vs. Badmus Wellington (1998) 11 NWLR (pt.572) 767 at 177 wherein the court held that the testimony of interested persons such as near relation and friends should be carefully scrutinized and ought generally not to be given the same weight as testimony of disinterested witnesses. Learned counsel submitted that the only independent witnesses that gave evidence on Alibi were called by the appellant but their evidence was not alluded to by the trial Judge. He urged the court to hold that the prosecution did not disprove the defence of alibi and quash the conviction and sentence of the appellant.
In response, respondent’s counsel referred to the definition of Alibi as stated in the case of Iheonunekwu vs. The State (2009) 7 NWLR (pt.1139) 43 to mean “a defense that places the accused at the relevant time of crime in a different place than the scene involved and so removed there from as to render it impossible for him to be the guilty party”. Learned counsel submitted that appellant raised the defence of alibi six days after the incident but it was investigated and DW1 made a statement to the police, i.e. exhibit 17. That the only evidence which could sustain the appellant’s defense of alibi is the credible evidence of DW1 who claimed to be in the palace praying for the appellant and his family. It was contended that DW1 could not adequately account for the whereabouts of the appellant at the relevant time the crime was committed. That appellant’s defense of alibi cannot hold water as you cannot put something on nothing and expect it to stand. That the evidence of prosecution witnesses (particularly PWl-PW4), who were eye witnesses, are to the effect that not only did the appellant lead his supporters to attack PW2 and his families and supporters but appellant and (two) other co-accused Killed the deceased. It was further argued that PW1, PW2, PW3 and PW4 positively identified the appellant at the scene of crime. See pages 61-69 of the record. See Iheonunekwu vs. The State supra at 84 wherein the court held that once an accused is fixed at the scene of crime, his defence of alibi must fail. Learned counsel further contended that the fact that an accused person has raised an alibi by his evidence or that of a witness does not imply that the alibi must be accepted by a court. If the evidence called by the prosecution is credible and strong, and compelling, the court may reject the defence of alibi. See David Omotola & Ors vs. The State (2009) 3 SCM 127 at 143, at pages 92-93. Counsel argued that the evidence of DW1 which supported appellant’s defence of alibi was rejected by the trial judge as incredible. Evidence relating to credibility of a witness cannot be interfered with by this court. See Dim vs. Isaac Enemulo (2009) 10 NWLR (pt.1149) 353 at 396. He urged the court to hold that the defence of alibi was an afterthought put up by the appellant and the evidence of DW1 was properly rejected by the trial court.
Alibi as defined in the case of Iheonunekwu Ndukwe vs. The State supra at 43 means “a defense that places the accused at the relevant time of crime in a different place than the scene involved and so removed there from as to render “it impossible for him to be the guilty pari”. The word Alibi as defined in Oxford Advanced Learner’s Dictionary 7th Edition means:
“evidence that proves that a person was in another place at the time of a crime and so could not have committed it”.
The Alibi put forward by the appellant was that he was with the DW1 and that he remained in the palace throughout the period of the incident. The police investigated the alibi and recorded statement from DW1. The statement was obtained on 22/2/2001 and tendered as Exhibit 17. In Exhibit 17 DW1 stated that he was with the appellant at about 10.30a.m on the day of the incident. In the last paragraph of Exhibit 17 the DW1 said:
“By the time I left Oba Adeyemo in his palace; I don’t know whether he got out to fight or not because I was in my house praying”.
The available evidence showed that the attack that led to the death of the deceased took place well after 11.30 a.m. DW1 could not adequately account for the whereabouts of the appellant at the relevant time the crime was committed. It is evident that PW1, PW2, PW3 and PW4 gave eye witness account of what happened on the day of the incident. They gave direct evidence to the effect that appellant led his supporters to attack PW2 and his families as well as his supporters, Apart from this, they saw the appellant hit one Azeez Raji on his head with an axe which led to his death. PW1, PW2, PW3 and PW4 positively identified the appellant at the scene of crime. It is now settled that even though it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea, ineffective as a defence. See Ndukwe vs. The State (supra); Patrick Njovens & Ors vs. The State (1973) 1 NMLR 331; Gachi & Ors vs. The State (1965) NMLR 333 and Yanor & Anor. vs. The State (1965) 1 ANLR 199 and Umani vs. State (1988) 1 NWLR (pt.70) 274.
To further support the fact that the defence of alibi is not available to the appellant, the learned trial judge at page 154 of the record had this to say:-
“On page 2 of Exhibit 4, the 1st accused said in lines 7 to 30 thus:
“But today the 14/2/2001 at about 11.45 a.m I was in my palace at Oko-Ile, when I heard unusual (sic) from the motor park at Oko-Ile, I quickly stood up looking outside through the window in my palace and I saw someone saying please rescue (sic) met that somebody matchetted him, I later came outside my palace and saw one Thomas Akinade with injury on his body and full of blood all over him body (sic) and also some of my supporters ran to me and I saw them with several injuries all over their bodies. I also sighted Basiru Raji who is my opponent with his gang armed themselves with cutlasses, charms and sticks started beating my supporters, but my supporters over power them and caught them with all their weapons mentioned above”,
The learned trial judge continued at page 154 thus:
“The above-quoted statement of the 1st accused has placed him squarely at the scene of the incident and therefore will make the plea of alibi to be unavailable to him. In the case of Azeez vs. The State (2005) QCCR 112 cited by counsel to the accused persons the court said at page 123.
“It is settled that where a defence of alibi is raised, the primary onus of establishing the guilt of the accused is still on the prosecution, but the evidential or secondary burden is on the accused person to adduce evidence of where he was at the material time. The evidence may convince the jury or trial court in which case he wins or it may cause the jury to doubt in which case again he wins”
The above cited case is distinguishable from this case as the evidence led by the in accused in proof of his alibi has neither convinced this court nor made this court to be in doubt. It has in the contrary placed the 1st accused squarely at the scene of crime. I accordingly hold that the alibi raised in the In accused statement made later (i.e 20/2/2001) is an afterthought. I accordingly dismiss his plea of alibi”.
The above finding of the learned trial judge in my humble view is unassailable.
The fact that PW1, PW2, PW3 and PW4 are related to the deceased is not a cogent reason to disbelieve their evidence as tainted witnesses. The learned trial judge rightly ascribed evidential value to their evidence. In David Omotola & Ors. v. The State (2009) 3 SCM 127 at 143 the apex court per Oguntade JSC stated thus:
Every citizen has the duty to come, forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a court case — But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased, or tainted”,
See also Sunday Emator vs. State (1975) 9-11 SC 107.
I also hold the view that the defence of alibi is not available to the appellant. Issue 1 is accordingly resolved against the appellant. Issue 2 is whether the prosecution proved its case beyond reasonable doubt. The issue was distilled from grounds 1 and 4 as contained in the Notice of Appeal, The complaint in ground 1 relates to the offence of conspiracy, while ground 4 relates to the offence of murder.
The burden of proving the allegation of conspiracy is on the prosecution and same must be proved beyond reasonable doubt. The offence of conspiracy is complete when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means and is unusually based on circumstantial evidence. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. It is immaterial that the persons had not met each other. See Okosun & Ors vs. A. G Bendel State (1985) Vol. 16 N.S.C.C. (Pt.11) 1327, (7985) 3 NWLR (Pt.12) 283 and Onochie vs. The Republic (1966) vol. 4 N.S.C.C.73; Oduneye vs. The State (2001) 2 NWLR (Pt.697) 377 of 321, Patrick Njoverns vs. The State (1973) 5 SC 17 and Upatar vs. The State (2003) 6 NWLR (Pt.816) 230 at 293. The trial court may also infer conspiracy from a set of facts through which a common purpose is achieved. See:- Gbadamosi vs. the State (1991) 6 NWLR (Pt.196) 182; Aje vs. The State (2006) 8 NWLR (Pt.982) 345 at 363 and Adejobi vs. State (2011) 12 NWLR (Pt.1261) 347 at 378-379.
The evidence of the prosecution witnesses are to the effect that the 1st, 2nd and 3rd accused persons were part of the group who first met underneath the tree very close to the roundabout in Oko-Ike town after the ringing of the church bell before they proceeded towards PW1 , PWz, PW3 and PW4 together with the deceased. The confrontation occurred between the two factions and that led to the death of one Azerz Raji. It could be inferred from the circumstances that the 1st and 2nd accused persons and the others had a common intention to carry out an unlawful act. The finding of the learned trial judge at page 156 of the record is cannot be faulted. The trial judge had this to say:-
“I therefore accept and believe the evidence of the prosecution witnesses to the effect that the accused persons along with some others gathered themselves together under a tree near the roundabout armed themselves with axes, cutlasses, sticks and other dangerous weapons before proceeding to attack the PW2 and his group which included the deceased (i.e. Azeez Raji who died as a result of the attack. I do not believe and so reject the evidence of the accused persons and their witnesses to the effect that the accused persons did not conspire together to effect the unlawful purpose of attacking the PW2 and his group with dangerous weapons which eventually led to the death of Azeez Raji, I hold that it is evident from the action of the accused persons that there is a meeting of the minds to commit an offence, It must be noted that the meeting of the mind need not be physical. I am satisfied from the available evidence that the prosecution has established some community effort on the part of the accused persons aimed at committing a crime. ”
I find the offence of conspiracy to commit murder proved beyond reasonable doubt. I have no cogent reason to disturb the finding of guilt against the appellant and the conviction and sentence passed by the learned trial Judge.
I now consider the allegation of the offence of murder made against the Appellant. I would only highlight the main points raised by Appellant’s counsel in the brief of argument in contending that prosecution failed to prove the allegation of murder beyond reasonable doubt. Appellant’s complaint is that the learned trial judge failed to consider the evidence adduced by the defence and relied only on prosecution’s witnesses in coming to the conclusion that appellant was guilty of the offence charged. Appellant’s counsel also spotted contradictions in the testimonies of the prosecution witnesses which he considered as material and capable of raising doubt as to the guilt of the appellant. That doubt should be resolved in favour of the appellant. See Nwankwoala v. State (2005) All FWLR (Pt.266) 1280 at 1304 paras E. Appellant’s counsel also contended that the key prosecution witnesses i.e PW1, PW2, PW3 and PW4 are tainted witnesses since they are related to the deceased person. That their testimony ought to have been treated with considerable caution. Reliance was placed on Abdullahi v. State (2005) All FWLR (Pt.263) 698 at 714 para D-E.
Respondent’s counsel in reply contended that the learned trial Judge did not only comprehensively and properly evaluated the evidence adduced by both the prosecution and the defence before it came to the findings thereon, he considered defence available to the Appellant. It was submitted that evaluation of evidence is the primary function of the trial court so also is the ascription of probative value to such evidence. It is the trial court that saw, heard and assessed the witnesses as they testified at the trial in the witness box. When the trial Judge has unquestionably evaluated evidence and justifiably appraises the facts, it is not the business of an appellate court to interfere and to substitute its own views for the views of the trial court. Reliance was placed on Buba vs. Bukar (2003) FWLR (Pt.183) 38; Saburi Adebayo vs. A.G. Ogun State (2008) All FWLR (Pt.412) 7795 at 1211, Odun vs. U. K. Uganden & Ors (2009) 9 NWLR (Pt.1146) 353 at 396.
Learned counsel urged the court to disregard the appellant’s instalmental construction of the judgment of the lower court and hold that the trial court properly evaluated the evidence adduced before it by both the prosecution and the accused/appellant.
Learned counsel submitted that appellant made a heavy weather in his brief about contradictions in the prosecution’s case. The purported contradictions related to verbal warnings to the prosecution witnesses before the incident, the outfit of the appellant and the exhibits recovered at the scene of crime. That these contradictions are not related to the material facts necessary in proof of the cause of death and culpability or otherwise of the appellant. Learned counsel contended that not every trifling inconsistency or every minor contradiction is fatal to the prosecution’s case. That minor contradiction which does not affect the credibility of the witness will be of no avail to the appellant. Reliance was placed on Gambo Musa v. State (2009) 9 SCM 63 at 77; Sele V. The State (1993) 1 SCNJ 15 at 22-23; Attah v. The State (2010) 5 SCM 57 at 74, Okokonji V. The State (1987) 1 NWLR (Pt 52) 559 and Oludotun Ogunbayo V. The State (2001) All FWLR (Pt 365) 343 at 433.
As to whether the prosecution has proved the charge of murder beyond reasonable doubt, learned counsel submitted that the expression “proof beyond reasonable doubt” means fully satisfied, entirely convinced. It is not proof beyond shadow of doubt. That prosecution was able to prove all the ingredients of a charge of murder and conspiracy against the appellant through the evidence of eye witnesses. That the defence of alibi put up by the appellant was considered and rejected, That appellant was not only positively identified by PW1, PW2, PW3 and PW4 as one of the people that killed the deceased, his defence of alibi also crumbled beyond reasonable doubt. Counsel urged the court to hold that the trial Judge was right in holding that the prosecution has proved the charge of conspiracy to commit murder and murder of Azeez Raji against the appellant beyond reasonable doubt.
By the provisions of section 138 (1) of the Evidence Act, the standard of proof in all criminal trials is proof beyond reasonable doubt. Section 138 (1) provides:-
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil and criminal it must be proved beyond reasonable doubt.”
That this burden is always on the shoulders of the prosecution and never shifts is sacrosanct and settled on the authorities. That this is the position of the law is aptly put in Nwosu vs. State (1998) 8 NWLR (Pt.562) 433 at 444 paras B-C thus:
“In all criminal trials the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. Failure to do so will a automatically lead to the discharge of the accused.
The burden never changes,”
See also Bozin vs. State (1985) 2 NWLR (Pt.8) 465, at 469; Alabi vs. State (1993) 7 NWLR (Pt. 307) 511 at 523 Bakare vs. State (1987) 1 NWLR (Pt.52) 579 and Akpan vs. State (1992) 6 NWLR (Pt.248) 469.
There are three elements or ingredients needed to be established by the prosecution in order to secure conviction in a charge of murder against the accused person which are:-
1. That the deceased died,
2. That the death of the deceased is traceable to the act of the accused and
3. That the act of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence. See State v. Ogubinjo (2001) 2 NWLR (Pt 598) 576 at 586.
It is trite law that the prosecution must not only establish the existence of these three ingredients, it must do so beyond reasonable doubt.
It is not contested that the deceased (Azeez Raji) is dead. What is contested is whether the death of the deceased is traceable to the act of the appellant and whether the act of the appellant caused the death with intent and knowledge that death or grievous bodily harm was its probable consequence. Upon careful reading of the Judgment of the trial Judge appearing from pages 126-180 of the record, it is evident that he reviewed the testimonies of both prosecution witnesses as well as the defence and ascribed probative value to their evidence. The learned trial Judge believed the prosecution witnesses and found the appellant guilty of killing the deceased.
The crucial issue or material facts in this case are the facts that are directly necessary in proof of the cause of death and culpability or otherwise of the appellant. Fundamentally, PW1, PW2, PW3 and PW4 at the trial court gave account of eye witnesses. They identified the Appellant and two other co-accused as the persons who killed the deceased. These witnesses narrated vividly how they were attacked by the group led by the appellant with dangerous weapons. They were all emphatic that it was appellant who hit the deceased (Azeez Raji) on the head with an axe and he slumped. The other co-accused persons joined and hit deceased with cutlasses. PW6 the Medical Doctor who performed the post mortem examination on the deceased stated in the medical report exhibit 16 that he noticed deceased had bruises on the head and he might have died of head injury. He said bleeding into the brown brain cannot withstand pressure. In a case of homicide it is incumbent on the prosecution to prove cause of death, and it can do so either by direct evidence or circumstantial evidence that creates no room for doubt or speculation. See R. vs Oladinma (1940) 6 WACA 202; Uyo vs. Attorney General of Bendel State (1986) 1 NWLR (Pt.17) 418 at 426; Gabriel v. State (1989) 5 NWLR (Pt.122) 457 and Akpan vs. State (1992) 6 NWLR (Pt.248) 469. The eye witness account given by PW1, PW2, PW3 and pw4 which was accepted as cogent and credible by the learned trial Judge showed that the death of the deceased was traceable to the act of the appellant and other co-accused and that act was intentional. The learned trial Judge did considered available defenses which could mitigate the punishment. He however, after considering the facts and circumstances of the case found as a fact that no defense of either provocation or self-defense was available to the appellant and the co -accused.
The argument of appellant’s counsel that the learned trial judge did not consider the evidence adduced by the defense witnesses is not correct. The learned trial judge reviewed the testimonies of DW1-DW11 in his Judgment. It is the trial court that saw, heard and assessed the witnesses as they testified in the witness box. The learned trial Judge in his assessment rejected the evidence of DW1 as incredible. It is trite that when a court has rejected a piece of evidence as incredible, it has no evidential value of any kind. See David Omotola & ors v. The State (2009) 3 SCM 127 at 143 cited by Respondent’s counsel. From the evidence of DW2, she was not at the scene of crime. She was only called upon by Oba Gabriel Adepoju Adeyemo to take photographs. DW7 and DW8 did not witness the incident they only met confusion in town. DW3, DW4, DW6 were at the scene of crime but did not witness the murder of the deceased because they only gave evidence of the aftermath of the murder. They were unconscious and therefore did not know who killed the deceased. The learned trial judge after evaluating the evidence of the defense witnesses at pages 163-165 of the record had this to say:-
“…The picture being painted by the defense here is that the PW2 led his supporters back to the town on that day and immediately launched an attack on the people which eventually led to the death of one his supporters (i.e) Azeez Raji, who was hit by a stone aimed at one Pastor Abolade, The DW1, Pastor Samson F. Olajire said that much in his evidence in chief… The said Pastor Olusegun Abolade who gave evidence as DW4 did not however say that the stone aimed at him hit anybody talkless of the Azeez Raji (deceased). In fact, no other witness for the defense said anything about the way and manner the said Azeez Raji met his untimely death. They were only busy relating the story of the various degree of injuries they allegedly suffered on that day and making efforts to exonerate the accused persons…”
The contradictions referred to by the appellant in his brief of argument relates to verbal warnings to the prosecution witnesses before the incident, the outfit of the appellant and the exhibit recovered at the scene. As rightly submitted by respondent’s counsel these contradictions are not related to the material facts necessarily in proof of the cause of death and culpability or otherwise of the appellant. Not every minor contradictions is fatal to the prosecution’s case. In Sele v. State 1993 1 NWLR (Pt.269) 276 at 288 the Supreme Court stated thus:-
“Contradictions to be fatal to prosecution case must go to substance of the case and not be of a minor nature. If every contradiction, however trivial to the overwhelming evidence, before the court will vitiate a trial, human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecution fail. See:- Nasamu vs. State (1979) 6-9 SC 153; Queen vs. Ekanem (1960) SCNLR 39; Kalu us. State (1988) 4 NWLR (Pt. 90) 503, Akpan vs. State (1997) 3 NWLR (Pt.182) 646 and Ogoala vs. State (1991) 2 NWLR (Pt. 175) 509. Thus if the contradiction do not touch on a material point or substance of the case it will not vitiate a conviction once the evidence is clear and it is believed or preferred by the trial court. ”
It is not possible for the prosecution witnesses to narrate the incident without some minor differences except if they are tutored. In Ovie vs. Ighiwi (2005) 15 NWLR (Pt.917) 184, the Supreme Court acknowledged that there could be little differences in the testimony of witnesses which would not necessarily be fatal to the case of the party in favour of whom they testify.
The purported contradictions in the prosecution’s case are not material as to raise any form of doubt in the mind of the trial Judge.
From the totality of the evidence adduced, I am of the humble view that this court has no cause to interfere with the findings of the learned trial judge that prosecution had proved its case beyond reasonable doubt. Appellant was rightly found guilty of the offences of conspiracy to commit murder and murder. The conviction and sentence cannot also be faulted. Issue 2 is similarly resolved against the appellant.
In the final analysis, I hold that this appeal is devoid of merit. It is hereby dismissed. The Judgment of the High Court of Justice Oyo State delivered by Abass J. on the 29b day of October 2008 is affirmed.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Mshelia (J.C.A.). I agree with the reasoning and conclusion reached that the appeal lack merit and should be dismissed, I dismiss same and affirm the judgment of the High Court of Justice Oyo State delivered by Abass J. on the 29th October 2008.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had read in draft the lead judgment of my learned brother Mshelia, J.C.A.
I agree that the appeal is devoid of merit as contained in the lead judgment. I also dismiss the appeal.
Appearances
M. F. Lana with A. Ige For Appellant
AND
H. M. Awosemusi (Mrs) Senior Legal Officer Oyo State Ministry of Justice For Respondent
