OKEN v. STATE (2020)

OKEN v. STATE

(2020)LCN/15443(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/E/49C/2019

RATIO

CRIMINAL PROCEEDING: BURDEN OF PROOF

The law is settled that all the ingredients of an offence must be proved beyond reasonable doubt by cogent and credible evidence in order to secure a conviction. If the prosecution fails to prove any of the ingredients of the offence charged, the accused must be acquitted. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

CRIMINAL PROCEEDING: MURDER: WHETHER A COURT MAY CONVICT AN ACCUSED PERSON OF MURDER EVEN THOUGH THE DECEASED’S BODY, CANNOT BE FOUND

Though the law is settled that an offence of murder may be proved even where the corpse of the deceased cannot be found. However, there must be cogent and credible evidence that the deceased died and the cause of death must be clearly established. In JUA V STATE (2010) LPELR-1637 (SC) AT 43-44 (F-C), the Supreme Court per Per OGBUAGU, J.S.C. held as follows:
“The law as regards the absence of corpus delicti is that a Court may still convict an accused person of murder even though the deceased’s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. See the cases of R. v. Sala (1938) 4 WACA 14; R. v. Onufrejeigyk (1955) 9 CAR 1; Adelakun Ayinde v. The State 1972 4 S.C. 147 @ 152; Edim v. The State (1972) 4 S.C. 160 @ 162. In other words, the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime. However, before the prisoner can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence therefore, should be so cogent and compelling as to convince a Court or jury that on no rational hypothesis other than murder can the facts be accounted for. See Onufrejeigyk (supra); The State v. Nwakerendu (1973) 3 ECSLR (Pt.2) 75 (supra).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EVIDENCE: POSITION OF THE LAW WHERE A WITNESS GIVES CONTRADICTORY EVIDENCE

The law is settled that where a witness gives contradictory evidence on a material fact, the evidence becomes unreliable and the witness is not worthy of being believed. See IGBI & ANOR. V. STATE (2000) LPELR-1444(SC) AT 45-46 (E-F). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

The law is settled that the evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court that has the opportunity to see and observe the witnesses testify in Court. Where the trial Court has satisfactorily carried out its duty and made correct findings, the appellate Court cannot interfere with the findings of the trial Court. See OLAKUNLE V. STATE (2017) LPELR-48000(SC) AT 33-34 (D-C). However, where the finding of the Court is shown to be perverse, the appellate Court is bound to interfere especially where failure to so do will occasion an injustice. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUDGMENT OF COURT: CONDITIONS TO DETERMINE WHEN THE FINDINGS OF A TRIAL COURT IS PERVERSE

A finding of the Court is said to be perverse when it is not supported by the evidence or is reached as a result of a wrong approach to the evidence or as a result of a wrong application of evidence or as a result of a wrong application of any principle of substantive law or procedure. See DAHIRU V. STATE (2018) LPELR-44497(SC) AT 12-14. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

CRIMINAL PROCEEDING: MURDER: INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF MURDER

The law is firmly settled that in criminal cases, the burden of proving the guilt of an accused is on the prosecution. In order to discharge the burden, the prosecution must adduce cogent and credible evidence to establish all the ingredients of the offence for which the accused is put to trial. The prosecution can do that by any or a combination of the following methods: (a) Through confessional statement of the accused; (b) Through circumstantial evidence, or (c) Through eye witness account.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

IKECHUKWU NWORIE OKEN APPELANT(S)

And

THE STATE RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HNK/1C/2016 on 3/6/2016. The appellant and one other person were charged before the Court on a one count charge of murder contrary to Section 319(1) of the Criminal Code Law, Cap 33 Volume 1, Laws of Ebonyi State of Nigeria, 2009. They were alleged to have killed JUDE NWUKWE at Umuoghara Village, Ezza North in Abakaliki Judicial Division, Ebonyi State on 28/2/2009. The other accused person was said to have disappeared. The accused was therefore tried alone.

The case of the prosecution was that the deceased and the appellant are from the same village – Ogharaugo village Okposi Umuoghara, Ezza North LGA, where they also live. The deceased was a lorry driver, who lived with his parents. The appellant is a member of Oken family. Before the alleged murder of the deceased, there had been two attacks on the family of deceased by the appellant’s family. The first was on 22/2/09 when the appellant and his family waylaid the deceased on his way home and attacked him. Later that same day, the appellant and his family armed with dangerous weapons invaded the deceased’s compound and destroyed their properties. On 26/2/2009 the deceased was on his way to work when he was attacked again by the appellant and his family. On 28/2/2009, the police arrested about four members of Oken family. They were released on the same day. When they got back home the appellant’s family in large numbers armed with dangerous weapons and chanting war songs invaded the deceased’s family compound. The deceased, his father and sisters ran away for their lives. The appellant and his family chased the deceased and his sister PW2 from their grandfather’s compound into the house of one Nwabede. They broke up the door, beat the deceased mercilessly and dragged him into a bush where he was killed.

The appellant’s case was that in the morning of 28/2/2009, he was in his grandmother’s house where he was living when members of his Oken family ran to him and told him that they had problem with some people and police were chasing them and that some people had been arrested. He was arrested by the police when he took food to those people that were arrested. He denied any involvement in the killing of the deceased. The prosecution called six (6) witnesses. The appellant testified for himself and called no other witness.

In its considered judgment delivered by D.O. OKO, J., the Court below found the appellant guilty of murder and sentenced him to death. Being dissatisfied with the judgment, the appellant filed a notice of appeal which contained six (6) grounds of appeal on 3/6/2016.

The appellant’s brief of argument was filed on 4/5/2020. It was deemed as properly filed and served on 6/5/2020. The respondent’s brief was filed on 28/8/2020. It was deemed as properly filed and served on 28/10/2020. The appellant raised the following issues for determination:
1. “Whether or not the learned trial judge was right when he found the appellant guilty of murder based on hearsay and contradictory evidence of prosecution witness. (Culled from grounds 1 and 2 of the notice of appeal)
2. Was the finding by the learned trial judge that after the arrest of members of the family of the appellant following the attack of the deceased, the appellant and his family members were apparently infuriated with the deceased and decided to deal a final blow on him not founded on mere assumption and speculation? (Culled from ground 3 of the notice of appeal)
3. Whether or not the learned trial judge was right when he held that the defence of alibi was not available to the appellant. (Culled from the grounds 4 and 5 of the notice of appeal)
4. Whether or not the conviction of the appellant by the trial Court was based on proper evaluation of evidence. (Culled from ground 6 of the appeal).”

The respondent adopted the issues raised by the appellant. All the issues are subsumed into one issue which is whether on the entire evidence adduced by the prosecution, the case against the appellant was proved beyond reasonable doubt.

It is the contention of the appellant’s counsel that the conviction of the appellant was based on hearsay and discredited evidence of prosecution witnesses. He submitted that the evidence of PW1, PW4 and PW5 on the involvement of the appellant in the murder of the deceased is hearsay which ought not to have been relied on by the Court. He referred to Sections 77 and 126 of the EVIDENCE ACT.

OJO V. GHARORO (2006) 10 NWLR (PT.987) 173 AT 198 (G). ZUBAIRU V. STATE (2015) NWLR (PT.1486) 504 AT 524 (G-A). ZENITH BANK PLC V. EKEREUWEM (2012) 4 NWLR (PT.1290) 207 AT 233 (A-B). He urged the Court to reject the evidence of PW4 and PW5 as they are mere repetition of what the witnesses said they were told by members of Oken family who were not called as witnesses while exhibits P2-P7 are documentary hearsay because the makers of the statements who were in a position to answer questions on them were not called as witnesses. He referred to CHUKWUEKE V.THE STATE (1991) 7 NWLR (PT.205) 604 (1). OYAKHIRE V. STATE (2006) 15 NWLR (PT. 1001) 157 (4). Counsel highlighted the contradiction between the statement of PW2 to the police and her evidence in Court. He submitted that the contradiction is so grave that the conviction of the appellant based on it ought to be reversed. He referred to OMONGA V. THE STATE (2006) 14 NWLR (PT.1000) 532(6). BASSEY V. STATE (2012) 12 NWLR 9PT 1314) 209 (7). It is the contention of the appellant’s counsel that the appellant was arrested, tried and convicted simply because he is a member of the Oken family. He urged the Court to invoke the provisions of Section 167(d) of the Evidence Act against the prosecution for failure to tender the statement of the appellant. He referred to OGUDO V. STATE (2011) 18 NWLR (PT.1278)1(12). Counsel argued that the finding of the Court below that there was no need for the investigation of the defence ALIBI raised by the appellant because the evidence of PW2 fixed the appellant at the scene of the crime is perverse because the evidence of PW1-PW3 which was the basis of that finding is hearsay. He urged the Court to interfere with the findings of the Court below as it has occasioned a miscarriage of justice.

The respondent’s counsel conceded that the only eyewitness to the killing of the deceased was PW2. However, he argued that the evidence of PW4-PW6 is not hearsay because they gave evidence of what they observed, saw and discovered in the course of their investigation including the statements made to them by persons who were not themselves called as witnesses. He referred to OLADEJO V. STATE (1994) 6 NWLR (PT.348) 101 AT 11 (20). TORTI v. UKPABI (1984) 1 SC 370. UTTEH V. THE STATE (1992) 2SCNJ (PT.1) 183. OKORO V. STATE (1998) 12 SCNJ 84. He submitted that the evidence of PW1 and PW3 corroborated the evidence of PW2 while the evidence of PW1-PW5 falls within the exception to hearsay rule. Counsel argued that the specific action of the appellant need not be proved because the law holds every person who actually does an act or makes the omission which constitutes the offence or who aids or procures another to commit the offence criminally liable for the offence. He referred to Section 7 of the Criminal Law of Ebonyi State. He further argued that though there is no direct evidence that the deceased was killed by the accused and the body of the deceased was not found, the appellant can be held responsible for the death of the deceased by the doctrine of “the last seen” as the evidence of PW2 is both direct and circumstantial. He referred to IGABELE V. STATE (2006) 6 NWLR (PT. 975) 133. ARICHE V STATE (1993) 7 SCNJ 457. On the defence of ALIBI, counsel submitted that the defence was not raised at the appropriate time and no particulars was given by the appellant either to the police or in his evidence in Court and in any case the evidence of PW1-PW3 fixed the appellant at the scene of the crime.

RESOLUTION
The law is firmly settled that in criminal cases, the burden of proving the guilt of an accused is on the prosecution. In order to discharge the burden, the prosecution must adduce cogent and credible evidence to establish all the ingredients of the offence for which the accused is put to trial. The prosecution can do that by any or a combination of the following methods: (a) Through confessional statement of the accused; (b) Through circumstantial evidence, or (c) Through eye witness account.

The appellant herein was charged for an offence of murder under Section 319(1) of the Criminal Code Law of Ebonyi State. The ingredients of murder which the prosecution must establish beyond reasonable doubt are: (1) The death of a human being (2) That the death was caused by the act or commission of the accused person and (3) That the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence. See AKINSUWA V STATE (2019) LPELR-47621(SC). STATE V. SUNDAY (2019) LPELR-46943 (SC).
The first two ingredients which must be established beyond reasonable doubt are that the deceased died and that the death was caused by the act or commission of the accused person. The Court below at pages 141 -142 of the record of appeal considered the evidence adduced by the prosecution and held as follows:
“This piece of evidence of PW5 regarding the mention of the accused by his family members who were arrested as one of the attackers of the deceased, and in fact the initiator of the attack, and the identification of the accused by PW2 as being part of the attack from the very first day and subsequently, to my mind establishes the fact of the involvement of the accused in acts that led to the death of the deceased.
From the evidence of PW1-PW5, it is obvious that after the arrest of members of the family of the accused following the attack of the deceased and PW1 on 26/2/09, the family of the deceased, the accused and his family members were apparently infuriated with the deceased and decided to deal a final blow on him.
From the totality of the evidence of the prosecution as analysed above, the following facts emerge:
1. That the deceased in his case Jideofor Nwokwu died.
2. That it was the acts of the accused and other members of his family that caused the death of the deceased.
In view of that, the Court has no difficulty in holding that the prosecution has succeeded in establishing the first and the second leg of the ingredients of the offence of murder as provided under Section 319 of the Criminal Code (supra). See also the case of Garba V. State (supra).”

I have examined the evidence led by the prosecution. The witnesses gave different versions of how the deceased allegedly died. (1) PW2 said that after the deceased was beaten, he was being taking to the hospital when he died on the way. (2) In her evidence before the Court, PW2 said the deceased was attacked, cut with machete, bottles, beaten with guns, dragged into the bush and killed by members of Oken family who took his corpse into their compound. (3) PW1 the father of the deceased said the deceased did not die immediately after the attack. The Oken family dragged him to their compound and their women used stones to grind his scrotum. (4) PW5 said the police was informed that the deceased was beaten to death and his corpse was deposited in the mortuary. It is glaring from the PW2’S statement and her evidence before the Court that two versions of how the deceased allegedly died were given by her. If the deceased was beaten and died on the way to the hospital, then her evidence in Court that she saw the appellant and other members of the appellant’s family brutally attacking the deceased and dragging him to the bush where they killed him or that she saw them when they brought out the corpse of the deceased from the bush after killing him and took it to their compound cannot be true. Her statement that the deceased was beaten and was being rushed to the hospital when he died was made as the incident was fresh in her memory. There is no evidence of who was rushing the deceased to the hospital before he died on the way. The person or persons who were rushing the deceased to the hospital when he died along the way were material witnesses who were not called as witnesses or even mentioned at all. If the deceased was being rushed to the hospital and he died on the way, the evidence of deceased’s father, PW1 that the Oken family dragged the deceased to their compound and their women used stones to grind his scrotum was fabricated. There is no doubt that the contradiction is substantial. The law is settled that where a witness gives contradictory evidence on a material fact, the evidence becomes unreliable and the witness is not worthy of being believed.

See IGBI & ANOR. V. STATE (2000) LPELR-1444(SC) AT 45-46 (E-F). The death of the deceased and the cause of death are material facts that must be established by cogent and credible evidence. See MUSA V. STATE (2009) LPELR-1930 (SC) AT 35-37 (G-A). Where the prosecution witnesses give contradictory evidence in a respect of a material fact, a doubt is created in the prosecution’s case and the doubt must be resolved in favour of the accused.
In the instant case, the evidence is that the body of the deceased could not be found. The law is settled that conviction can properly be secured in the absence of corpus delicti where there is strong direct or circumstantial evidence that the deceased died and that the action of the accused caused the death. PW4 was a police officer. He testified that the police tried to recover the corpse of the deceased which they were told was in the compound of Oken family but did not find the body there. He said he recovered a blood stained machete purported to have been used in the murder of the deceased from the house of Paul Oken. According to him, Paul Oken told him that he used the machete recovered from his house to give the final blow to the deceased and that other youths in the compound were involved in the murder of the deceased. According to him Paul Oken mentioned Chinedu Oken and Ikechukwu Oken and others that he (PW4) could not remember their names. Paul Oken made a statement which was admitted as exhibit P2. He did not mention anybody’s name as having participated in the murder of the deceased. Curiously, Paul Oken was not charged with the murder of the deceased and he was not called as a witness. PW4 stated that Paul Oken suggested that the body of the deceased may be in the bush but a search in the bush did not yield any result. Under cross examination, PW4 said he did not arrest the appellant. The evidence of PW5 is of no assistance to the prosecution. Under cross examination, he said it was Johnson Oken that mentioned the appellant’s name but he did not investigate the involvement of the appellant in the matter. The evidence of PW6 who took over the investigation at the State CID was that in the course of the investigation, they found that the appellant and Chinedu Oken were the actual person that beat the deceased to death and later deposited his corpse to the mortuary. He said Ikechukwu Nwebede told him that when the deceased ran into his house for safety, he cited the appellant and Chinedu Oken pursuing the deceased, broke into the house, beat the deceased until he died. That is another version of how the deceased died. Ikechukwu Nwebede was not called as a witness. PW2 also said the appellant and his family killed the deceased and deposited his corpse in the mortuary. The same PW2 that said the Oken family took the corpse to their compound. Nobody testified that they saw the appellant or any member of his family depositing the corpse of the deceased in the mortuary. No record was produced to show that the corpse of the deceased was deposited in any mortuary. PW6 said a post mortem form was issued but they did not see the corpse in the mortuary and therefore do not know the extent of the injury which led to the death of the deceased. However, PW1 who is the father of the deceased testified that the Oken family deposited the body in the then Teaching Hospital, Abakaliki. He said he went there with the traditional ruler of their village, Ezeogo Nweke Igbo. The traditional ruler was not called as a witness. According to him, he paid for autopsy and the receipt bears his name. The receipt was not tendered in evidence. No medical report was tendered to show that any autopsy was performed on the corpse of the deceased. PW1 never said the corpse of the deceased could not be found. It is curious that PW1 was the one that arranged and paid for autopsy behind the police. If in fact PW1 paid for the autopsy, it means he saw the corpse in the mortuary. He said the body of the deceased has not been buried. He did not say the corpse could not be found. If it is true that JUDE NWUKWE for whose murder the appellant was charged is dead, there ought not to be so much confusion, contradiction and outright fabrication of how he died. If PW1 truly saw the corpse of his son and paid for autopsy, the body should have been found by the police when they went there with their own autopsy form. Why would PW1 be the one arranging for the autopsy of his son behind the police. PW1 did not raise any alarm when the body could not be found in the mortuary. Something is seriously amiss. The entire scenario painted around the corpse of the deceased raised a red flag. Is JUDE NWUKWE truly dead? From the entire evidence on record, i am unable to answer that question in the affirmative. The prosecution failed woefully to prove beyond reasonable doubt that JUDE NWUKWE died and that the appellant’s action caused the death.
Though the law is settled that an offence of murder may be proved even where the corpse of the deceased cannot be found. However, there must be cogent and credible evidence that the deceased died and the cause of death must be clearly established. In JUA V STATE (2010) LPELR-1637 (SC) AT 43-44 (F-C), the Supreme Court per Per OGBUAGU, J.S.C. held as follows:
“The law as regards the absence of corpus delicti is that a Court may still convict an accused person of murder even though the deceased’s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. See the cases of R. v. Sala (1938) 4 WACA 14; R. v. Onufrejeigyk (1955) 9 CAR 1; Adelakun Ayinde v. The State 1972 4 S.C. 147 @ 152; Edim v. The State (1972) 4 S.C. 160 @ 162. In other words, the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime. However, before the prisoner can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence therefore, should be so cogent and compelling as to convince a Court or jury that on no rational hypothesis other than murder can the facts be accounted for. See Onufrejeigyk (supra); The State v. Nwakerendu (1973) 3 ECSLR (Pt.2) 75 (supra).”
The evidence of the prosecution witnesses on the death of the deceased and the whereabout of his corpse are so contradictory and inconsistent that no Court ought to rely on it to convict an accused for murder. The contradictions and inconsistencies created a serious doubt about the death of the deceased. There is no cogent and compelling evidence to support the finding that the deceased died and that it was the act of the appellant that result in his death. In ENEWOH V. STATE (1990) LPELR-1141(SC) AT 11(D-E), the Supreme Court per OLATAWURA, J.S.C held that:
“The real purpose of identification is to ensure that there is no miscarriage of justice. Unless the death of the person in respect of whom the accused was charged is proved beyond reasonable doubt, the accused may be convicted for the murder of a person yet alive. This should be avoided.”
The law is settled that all the ingredients of an offence must be proved beyond reasonable doubt by cogent and credible evidence in order to secure a conviction. If the prosecution fails to prove any of the ingredients of the offence charged, the accused must be acquitted. Accordingly, the appeal succeeds. It is hereby allowed. The judgment of the High Court of Ebonyi State delivered in charge no. HNK/1C/2011 on 3/3/2016 is hereby set aside. The conviction and sentence passed on the appellant is hereby set aside. The appellant is hereby discharged and acquitted.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For the more detailed reasoning in the lead judgment, I shall equally allow this appeal.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

Chidi Nwaankwo For Appellant(s)

Nnennaya Ama Elekwa, Deputy Director, Ministry of Justice, Ebonyi State For Respondent(s)