OHENEME WISDOM v. THE STATE
(2019)LCN/13688(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of July, 2019
CA/B/419CA/2018
RATIO
CRIMINAL LAW: PROVE OF MATTERS BEYOND REASONABLE DOUBT BY PROSECUTION
There is no doubt that for a charge of murder to be established, the prosecution must prove beyond reasonable doubt that the deceased died, his death resulted from the act of the accused whose act was intentional, with the knowledge that it might result in the death or infliction of serious bodily harm on the deceased. See Ibikunle v. State (2007) 1 SCNJ 207. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ALIBI: MEANING
The defence of Alibi in simple terms entails an accused person stating that as at the time a crime was committed, he was physically present in another location which would have made it physically impossible for him to have committed the offence at the scene of crime. The defence is not just pleaded without details, particulars of the location where the Accused person claimed to have been at the time of the alleged commission of the crime, the exact time and possible witnesses who can confirm the story must be adequately provided at the earliest possible time. See Eke v. State (2011) 3 NWLR Pt. 1235 Pg. 589.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ALIBI: DUTY OF POLICE
Upon the plea of Alibi by an accused person, the Police have the duty to investigate the claim. Failure to investigate a plea of Alibi with the required particulars may prove fatal to the case of the prosecution. See Odu v State (2001) 10 NWLR Pt. 772 Pg. 668. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ALIBI: WHEN IT WILL NOT AVAIL AN APPELLANT
However, the plea of Alibi cannot avail an Appellant who is placed at the scene of crime by cogent evidence, direct or circumstantial, as this destroys the defence of alibi. See Ochemaje v State (2008) 15 NWLR Pt. 1109 Pg. 57, The State v. Azeez (2008) 14 NWLR Pt. 1108 Pg. 439, Sowemimo v State (2004) 11 NWLR Pt. 885 Pg. 515. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ALIBI: WHEN THE DEFENSE OF ALIBI SHOULD BE RAISED
It is trite law that the defence of alibi must be raised at the earliest opportunity. See Smart v. State (2016) LPELR-40827 (SC); Esene v. State (2017) LPELR-41912 (SC). In Akeem v. State (2017) LPELR-42464 (SC). The Supreme Court went as far as holding that the defence of alibi should be made at the earliest opportunity which is when he first has to write a statement. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OHENEME WISDOM – Appellant(s)
AND
THE STATE – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice J.U. Oyomire on 12/4/2018 wherein the learned trial judge convicted and sentenced the Appellant to death by hanging.
The facts that lead to this appeal are as follows:
On 27/10/14, a commercial bus pulled up by the deceased person (Isaac Aigboduwa) and he was accused of ?being among.? An Audi car comprising of some uniformed Police Officers and one person in the uniform of the Nigerian Civil Defence Corps later arrived at the scene. There was an attempt to force the deceased into the boot of a car while he resisted. Subsequently, the deceased was beaten with hard objects and his assailants then left him while they escaped in the commercial bus and the Audi car. The deceased was found in his pool of blood by one Stephen, the younger brother of the deceased, PW1 and PW2 and he was later taken to hospital where he was pronounced dead.
?The Appellant, a Police Officer and three other persons were later arrested, charged with conspiracy with other
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persons to murder the deceased person. On 14/10/15, the Appellant and three other persons were arraigned on a two-count charge to wit:
COUNT 1
STATEMENT OF OFFENCE
Conspiracy to murder; punishable under Section 324 of the Criminal Code Cap 48, Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan street, off Sapele Road, Benin City in the Benin Judicial Division, did conspire amongst yourselves to commit a felony to wit: murder.
COUNT 2
STATEMENT OF OFFENCE
Murder, punishable under Section 319(1) of the Criminal Code Cap 48, Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State.
PARTICULARS OF OFFENCE
UMAREN DADA (M), OHENEME WISDOM (M), IMOISILI EHIARBI and FRIDAY AIGBOJE on or about the 27TH day of October, 2014 at Ikpokpan street, off Sapele Road, Benin City in the Benin Judicial Division, did murder one ISAAC AIGBODUWA (M).
In proof of its case, the Prosecution now Respondent called five
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witnesses as follows:
1. Tespna Aigboduwa – The younger brother of the deceased (PW1)
2. James Osadolor Iserhierhsen ? A person who had an encounter with the deceased before his death (PW2)
3. Erhabor Nosakhare ? A person present at the scene of event (PW3)
4. Oke Oluwafemi ? The Investigating Police Officer at Adesuwa Police Station (PW4)
5. Omole Adedoyin ? The Investigating Police Officer at SCID (PW5)
6. Dr. Uchendu Jude Obiora ? A Pathologist who gave expert opinion on the autopsy performed on the deceased (PW6).
The Appellant testified in his own defence to the charge preferred against him. At the end of the trial, the Appellant was convicted and sentenced on counts 1 and 2.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 29/6/18. Record was transmitted on 15/8/18. The Appellant?s brief was filed on 28/8/18. The Respondent?s brief was filed on 30/5/19 deemed filed on the same day.
In the Appellant?s brief settled by I.M.C. Ohiogwehei Esq., four issues were identified for determination of the appeal to wit:
1. Whether the trial Court
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was right in law when he convicted and sentenced the 2nd Appellant of the offences of murder and conspiracy after discrediting the evidence of the only alleged eye witness i.e. PW2 and PW3 and convicted and sentenced (sic) the Appellant on the evidence of PW1 alone whose evidence was also impugned during cross-examination
2. Whether the doctrine of ?last seen? was properly applied by the learned Trial Judge as laid down in the case of Igabele v State when he convicted and sentenced the Appellant of (sic) the offence of murder and conspiracy when there was no evidence that the deceased was seen alive with the Appellant
3. Whether the learned trial judge was right in law when he convicted and sentenced the Appellant for murder and conspiracy when the prosecution failed and/or neglected to investigate the alibi raised by the 2nd Appellant in his statements to the police i.e. Exhibits B & E and his oral testimony in Court
4. Whether in the face of the unexplained irreconcilable contradictions in the evidence of the prosecution witnesses the learned Trial Judge was right in law when he convicted and sentenced the 2nd Appellant for the
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offence of murder and conspiracy.
In the Respondent?s brief settled by Mrs. E. Osula, Mrs. E. Osarumwense, Eseosa Idada, Mrs. O.N. Ilueminosen, a sole issue was formulated for the determination of the appeal to wit:
Whether in view of the facts and circumstances of this case and the evidence before the Court the lower Court was right in law to have convicted and sentenced the Appellant to death on the two-count charge of conspiracy to murder and murder.
In determination of this appeal, I will recouch all the issues formulated into a sole issue. I am of the view that the complaints of the Appellant can be adequately addressed by the determination of same:
Whether from the evidence adduced by the prosecution, the learned trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.
SOLE ISSUE
Whether from the evidence adduced by the prosecution, the learned trial judge was right to have convicted the Appellant for the offences of conspiracy and murder.
Counsel argued that for a person to be convicted for the offence of murder under Section 319(1) of the Criminal Code, the deceased person
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must have died, the death of the deceased must have resulted from the act of the accused person and the act of the accused person must have been intentional with the knowledge that the probable consequence was death or grievous bodily harm. Counsel argued that these ingredients may be proved by either the confessional statement of the accused which was duly tested, proven and admitted in evidence, or by an unequivocal, cogent and complete circumstantial evidence which leads to the irresistible conclusion that the accused and not any other person committed the offence of murder or by the direct evidence of an eye witness who saw the accused committing the offence.
Counsel argued that PW2 never identified the people he saw on the day the deceased person died. Counsel further argued that PW3 did not see the Appellant as one of the persons whose act caused the death of the deceased. Counsel opined that in spite of the fact that the trial Court discountenanced the evidence of PW2 and PW3, the Appellant was convicted based on their evidence. Counsel opined that the trial judge wrote off the evidence of PW2 and PW3 because they could not identify any of the
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accused person.
Counsel argued that the evidence of PW1 alone is insufficient to nail the Appellant and Umaren Dada- the 1st accused at trial, to the death of the deceased person because he merely saw them running into a bus. Counsel cited Udoh v. State (1993) 5 NWLR (Pt. 295) 560 at 565; Ugwumba v. State (1993) 5 NWLR (Pt. 296) 660 at 671.
Counsel further argued that the evidence of the Investigating Police Officer, PW4, was inconclusive because he stated that the investigation was yet to be concluded before the case was transferred to the State Criminal Investigation Department (SCID). Counsel argued that PW5 who inherited the case file from PW4 at SCID only took the statement of the Appellant and the other convicted persons at trial.
Counsel argued that beyond the emotional evidence of PW1- a brother to the deceased, the Appellant?s defence was never falsified or contradicted by any direct and reliable evidence.
Counsel opined that although a conviction can be made on the evidence of a single witness, it is safer for a trial judge to warn himself of the danger of convicting a person upon the uncorroborated evidence of a witness.
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Counsel opined that in the instant case, PW1 was a blood relation of the deceased, the incident happened at night, more than 10 people attacked the deceased while only four persons were charged, that there was evidence that cultists operated in the street where the deceased was killed and also, because PW1 did not see the Appellant or any of the other convicted persons attack the deceased.
Counsel submitted that where it is alleged that death resulted from the acts of a person, a causal link between the death and the said acts must be established and proved. Counsel cited Onuoha v. State (1988) 3 NWLR (Pt. 83) 460.
Counsel argued that the evidence of PW6 did not help the Prosecution?s case. This is because PW6 admitted that Tespna Agboduwa- PW1, was the one that identified the body of the deceased. Counsel argued that there was no evidence disclosing the relationship between Tespna Aigboduwa- PW1 and the deceased since PW6 did not say he knew the deceased before he died. Counsel cited Okoro v. State (1998) 5 NWLR (Pt. 255); Section 316(1) (2) of the Criminal Code. Counsel questioned the relationship between PW1 and the deceased and then stated
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the gap cannot be filled by the Court because PW1 did not say he identified the body of the deceased to PW6 as a relation. Counsel cited Ohwovoriole v. State (2004) 1 CAC 119 at 123.
Counsel argued that the trial Court did not evaluate the evidence before him properly nor did he draw the appropriate inference from them. Counsel argued that this amounted to perversity on the part of the trial Court. Counsel cited John Shoy Ltd v. A.E.P.B (2013) 8 NWLR (Pt. 1357) 625 at 640; Okorie v. State (2018) 11 NWLR (Pt. 1629).
Counsel argued that a witness who gave material inconsistent evidence on oath is not credible and does not deserve to be treated as a truthful witness. Counsel cited Stanbic IBTC Plc v. L.G.C Ltd (2018) 10 NWLR (Pt. 16260 96 at 154 D-E. Counsel submitted that there are contradictions, discrepancies and illogicalities in the testimony of PW1 and other witnesses which were not resolved by the trial judge. Counsel opined that if PW2 stated in his evidence that the bus left before PW1 and others came outside, how then did PW1 see the Appellant and Umaren Dada, the 1st accused at trial run into a bus. Counsel argued that these are material
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contradictions that t
