OKO v. STATE (2020)

OKO v. STATE

(2020)LCN/15300(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/E/85C/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

TOCHUKWU OKO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ELEMENTS TO PROVE THE CRIMINAL OFFENCE OF MURDER

In the instant case, the offence for which the appellant was tried and convicted is murder contrary to Section 319 of the Criminal Code Law of Ebonyi State. It is settled by a long line of cases that the elements of murder which the prosecution must prove beyond reasonable doubt are:
(1) The death of a human being.
(2) That the death was caused by the unlawful act or omission of the accused.
(3) That the act was done with the intention to kill the deceased or that the accused knew or ought to know that death or grievous bodily harm was a probable consequence of his act.
See OKEREKE V. STATE (2016) LPELR-40012 (SC) AT 43 (A-F), STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 25 (B-F). PER BOLAJI-YUSUFF, J.C.A.

THE DUTY OF THE PROSECUTION IN DISCHARGING ITS BURDEN OF PROOF

It is settled that the prosecution can discharge the burden to prove its case beyond reasonable doubt by one or a combination of the following:
(1) Direct eye witness account of the incident.
(2) Circumstantial evidence.
(3) Confession of the accused. PER BOLAJI-YUSUFF, J.C.A.

DUTY OF THE COURT WHERE AN ACCUSED PERSON DENIES EVER MAKING A STATEMENT

The law is settled that where an accused person denied ever making a statement, it is the duty of the Court to determine at the end of trial whether the statement was actually made by the accused person. See AIGUOREGHIAN V. STATE (2004) 3 NWLR (PT. 860) 367 AT 383, SANMI V. STATE (2019) 13 NWLR (PT.1690) 551 AT 579 (A-E). PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE WEIGHT OF EVIDENCE TO THE CREDIBILITY OF A WITNESS

WHETHER OR NOT AN OFFENCE OF MURDER CAN BE PROVED WITHOUT THE WEAPON USED IN THE COMMISSION OF THE OFFENCE

The law is that an offence of murder can be proved without the weapon used in the commission of the offence. See REV. KING V. THE STATE (2016) LPELR-40046 (SC) AT 64-65 (C-A). Once there is sufficient and compelling evidence of the type of weapon used to kill the deceased and consistent with the injury found on the deceased, failure to tender the murder weapon is not fatal to the prosecution’s case. PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgement of the High Court of Ebonyi State delivered in charge no. HAE/1C/2017 on 30/4/2018. The appellant was charged and tried along with Samuel Udeh on a one count charge of murder of Philip Ugwu. The prosecution alleged that the deceased and one pastor Azubuike Okoro whose church was beside the deceased’s house had a boundary dispute. It was alleged that members of the appellant’s church used to throw charms on the roof of the deceased. On 30/9/2016, the deceased went out and when he returned, he was asking his wife who was in the compound whether members of the church had thrown charms on his roof as they used to do. Some members of the church including Azubuike Okoro over head the discussion between the deceased and his wife. Azubuike Okoro hurled stones at the deceased and disappeared. Then the appellant and his co accused continued to hurl stones which hit the deceased on his chest. He fell down immediately and his wife shouted for help. Neighbours came out and the deceased was rushed to the hospital where he was pronounced dead.

The case of the defence was that it was the deceased that first threw stones on the roof of their church. The appellant and his co accused then carried some gravels from the compound of their church and threw it on the roof of the deceased’s house in retaliation and left. It was on their way out that they heard that the deceased’s wife was claiming that they had killed her husband. When they returned to the scene, they saw the deceased and his wife being carried on a motorcycle. They denied harming the deceased.

The prosecution called 5 witness and tendered documents to establish their case against the appellant. The appellant and his co-accused testified in their own defence and called no other witness. The Court below in its considered judgment found each of the accused persons guilty of murder and sentenced them to death.

Being aggrieved by the judgement, the appellant filed a notice of appeal containing nine grounds of appeal against the judgment on 21/5/2018. The grounds of appeal without their particulars are as follows:
GROUND 1
“The learned trial judge erred in law when he convicted the appellant based on an unsubstantiated evidence of the prosecution who failed to prove their case beyond reasonable doubt.
GROUND 2
The decision of the trial Court is unwarranted, unreasonable and cannot be substantiated having regard to the evidence
GROUND 3: ERROR IN LAW
The learned trial judge erred in law when he failed, neglected and refused to resolve the doubts created by the inconsistencies in the evidence of PW1 (Mrs. Cecilia Abani), in favour of the appellant.
GROUND 4: ERROR IN LAW
The learned trial judge erred in law when he held that even if the evidence of the PW1 were disbelieved, as canvassed by the defence, the appellant would have still been convicted based on other surrounding circumstances.
GROUND 5: ERROR IN LAW
The learned trial judge erred in law when he failed, neglected and never adverted his mind to the legal defences available to the appellant before arriving at his judgment/decision.
GROUND 6: ERROR IN LAW
The learned trial judge erred in law when he failed, neglected and never adverted his mind to the inconsistencies in the names of the alleged murderers contained in the extra-judicial statements of the PW1 (Mrs. Cecilia Abani) and her testimony in Court.
GROUND 7: ERROR IN LAW
The learned trial judge erred in law when he failed, neglected and never considered the deficiencies and absurd findings contained in the evidence of PW3 (Dr. Felix Edegbe) and especially his autopsy report admitted as Exhibits P4, P5 and P6 and yet relied heavily on the said evidence and Exhibits to convict and sentence the appellant.
GROUND 8: ERROR IN LAW
The learned trial judge erred in law when he failed, neglected and did not advert his mind to and rejected the evidence of the appellant that he was made by the police to make several statements to the police on 7/10/2016, 9/10/2016, 10/10/2016 and 12/10/2016 which were withheld by the prosecution.
GROUND 9: ERROR IN LAW
The learned trial judge erred in law when he failed and neglected to resolve in favour of the appellant the doubt created by the PW1 (Mrs. Cecilia Abani) in tendering Exhibits P13A, P13B, P13C, P13D which are stones and P14 which is a piece of plank when in fact, plank was never mentioned anywhere in the evidence of the prosecution as part of the weapon used.”
The appellant’s brief of argument was filed on 21/12/2018 and deemed as properly filed and served on 25/2/2019. The respondent’s brief was filed 26/3/2020.

The appellant presented the following issues for the determination of this appeal:
1. “Whether the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt?
2. Whether the evidence of the appellant that he was not the maker of the statement dated 4/10/2016 amounted to retraction/plea of non est factum?
3. Whether the failure of the respondents to produce all the statements of the appellant and the decision of the elders in the boundary dispute amounts to withholding of evidence.”

The respondent presented the following issue for the determination of this appeal:
“Whether the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt, convicted and sentenced the appellant accordingly.”

I find the appellant’s issue 1 which is the same as the sole issue formulated by the respondent apt for the determination of this appeal.
The appellant’s counsel submitted that in every criminal case, the prosecution must prove its case beyond reasonable doubt and failure to prove an element of the offence for which the accused person is charged is fatal to the prosecution’s case. He referred to ADAMU V. STATE (2014) 10 NWLR (PT.1416) 446, ILIYASU V. STATE (2014) 15 NWLR (PT. 1430) 248 CA, OBIDIKE V. STATE (2014) 10 NWLR (PT.1414) PAGE 59, AMAREMOR V. STATE (2014) 10 NWLR (PT.1414) PAGE 10, JIMOH V. STATE 10 NWLR (PT.1414) PAGE 110, UMAR V. STATE (2014) 13 NWLR (PT.1425) PAGE 505.

It is contended that the testimony of PW1 on which the Court relied to convict the appellant is full of bias and inconsistencies on material facts making it unsafe for the Court to rely on it for conviction. Counsel referred to EMEKA V. STATE (2014) 13 NWLR (PT.1425) PAGE 617, ONONUJU V. STATE (2014) 8 NWLR (PT.1409) 345 (SC). He highlighted what he considered to be inconsistencies in PW1’s evidence and urged the Court to hold that the Court below erred when it disregarded the inconsistencies and contradictions in the evidence of the prosecution and convicted the appellant. It is also the contention of the appellant that Exhibits P13A – P14 being the stones admitted as the weapon used to commit the crime were manufactured by PW1 because they were not recovered by PW4 and his team of investigators who visited the scene of the crime and PW4 never investigated the source of the said exhibits. The Court is urged to invoke the provisions of Section 167(d) of the Evidence Act against the respondent for failure to produce the statements alleged to have been made to the police by the appellant on 7/10/2016, 9/10/2016, 10/10/2016 and 12/10/206 as the presumption is that the respondent failed to produce them because they would go against the prosecution.

In response to the above submissions, the respondent submitted that there is no contradiction or inconsistency in the case of the prosecution as PW1 maintained in her evidence in Court and in her extra-judicial statement that it was one Pastor Azubuike Okoro who first provoked the attack while the appellant and his co-accused person killed the deceased with stones. On the invitation to the Court to invoke the provisions of Section 167(d) of Evidence Act against the respondent, counsel submitted that one cannot be accused of failure to tender a document that he is not aware of and not in his possession. He referred to AMRITIA HOLDING LTD. V. BITASK VOA LTD (2015) ALL FWLR (PT.774) 78 CA AT 80 (G-H). He also referred to the evidence of PW5 that the appellant made only one statement on 4/10/19 (Exhibit P11) at State CID. It is further submitted that the appellant having admitted that he and his co-accused hurled gravels into the compound of the deceased, the death of the deceased was a natural consequence of the act. He urged the Court to hold that the prosecution proved its case beyond reasonable doubt.

RESOLUTION:
As rightly stated by counsel, the law is trite that in criminal cases, the burden is on the prosecution to prove all the elements of the offence under consideration beyond reasonable by cogent and credible evidence.

In the instant case, the Court below rightly held at page 179 of the record of appeal that the prosecution relied on direct eye witness of PW1, the wife of the deceased and the confession of the appellant, Exhibit P11. The Court carried out detailed analysis and evaluation of the evidence led by the prosecution and the defence. Below is what the Court said at pages 197-199 of record:
“There was evidence of casual link between the acts of the accused persons and the death of the deceased in this case. Apart from the direct eye witness account of the PW1 that it was the accused persons and another that stoned the deceased to death, evidence before the Court abounds that it was the accused person and Pastor Azubuike Okoro that had the last commotion with the deceased, and the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. Deadly injuries were found in the chest bone, ribs and the left lung of the deceased immediately after the commotion in which the accused persons admitted that they threw gravel stones, but the uncontradicted medical evidence adduced in the case proved that those injuries in the deceased were caused by the impact of heavy blunt objects like stones. Therefore, there was no any other reasonable hypothesis created by the peculiar facts and circumstances of this case than that the accused persons are responsible for the infliction of the injuries that caused the death of the deceased Philip Ugwu Abani in this case.
Based on the direct eye witness evidence by the PW1, the circumstantial evidence disclosed in this case and even the admission of the accused persons by their conduct of throwing stones, this Court is not in any medium of doubt that the prosecution had proved its case against the two accused person beyond reasonable doubt. It was proved beyond reasonable doubt that the deceased, Mr. Philip Ugwu Abani had died. It was also proved beyond reasonable doubt that it was the act of pelting stones by the accused persons and another that caused the injures in the deceased that caused his death and finally, it was proved beyond reasonable doubt that the accused person knew that the natural consequence of their respective hurling of stones, Exhibits P13A, P13B, P13C, and P13D at the body of the deceased when he was alive as proved in this case would have caused the injuries that caused the death of the deceased.”

I have perused the entire evidence led including the documentary evidence tendered by the prosecution, I am in full agreement with the Court below that the death of the deceased was proved beyond reasonable doubt by cogent and credible evidence. The appellant is not disputing the fact that the deceased died. The controversy in this appeal centres on whether it was the act of the appellant that caused the death of the deceased. The appellant’s counsel attacked the evidence of PW1, the deceased’s wife and the only eye witness as to how the deceased died as being unreliable and inconsistent. A community reading of the entire evidence of PW1 and her statements to the police Exhibits P1 and P2 shows the contrary. On 30/9/2016, when the incident was very fresh and again on 4/10/16 when Exhibits P1 and P2 were made, PW1 was unequivocal that the appellant was one of the persons who hurled stones at the deceased. In her statement, Exhibit P1, she mentioned Pastor Azubuike Okoro, Oko Tochukwu, Emmanuel Ude and Uche Nna. She stated that it was Azubuike Okoro that first hurled his own stone at the deceased and ran away. She confirmed the names when she was confronted with the statement under cross-examination. A thorough reading of the evidence of PW1 shows that PW1 was clear, unequivocal and consistent in her narration of how the incident occurred. The Court below had no reason to doubt the truthfulness, credibility and cogency of her evidence. The contention of the appellant’s counsel that PW1’s evidence was aimed at ensuring that the enemies of her late husband are roped in for his death is unfounded. The appellant in his evidence in chief confirmed that he made a statement to the police on 30/9/2016 (Exhibit P7). He also confirmed that he made another statement at the State CID on 4/10/2016 (Exhibit P11). Later in his evidence in chief, he alleged that he made Exhibit P11 on 12/10/2016 but he was forced to back date it to 4/10/16. When the prosecution sought tender Exhibit P11 through PW5, there was no objection to its admission on ground of involuntariness or any other ground. The law is settled that the appropriate time to raise objection to the admission of an extra-judicial statement is at the time it is sought to be tendered in evidence at the trial. See OGHENEOVU V. F.R.N (2019) 13 NWLR (PT.1689) 235 AT 255 (E-G). If the appellant was truly threatened and tortured to sign Exhibit P11, an objection to its admission on ground of involuntariness would have been raised at the time the prosecution sought to tender it in evidence. The appellant was represented by counsel and had the opportunity to raise the objection but chose not do so. The evidence or allegation of torture and involuntariness trumped up by the appellant in his evidence after the prosecution had closed its case is belated and afterthought. See USMAN V. STATE (2019) 15 NWLR (PT.1696) 411 AT 440 (C-F). The appellant’s counsel submitted that the weight attached to Exhibit P11 by the Court below occasioned a miscarriage of justice because the appellant denied making the statement. The law is settled that where an accused person denied ever making a statement, it is the duty of the Court to determine at the end of trial whether the statement was actually made by the accused person. See AIGUOREGHIAN V. STATE (2004) 3 NWLR (PT. 860) 367 AT 383, SANMI V. STATE (2019) 13 NWLR (PT.1690) 551 AT 579 (A-E). The Court below in compliance with the guiding principle of law evaluated the evidence of the appellant in relation to his allegation that Exhibit P11 was not made by him. The Court at pages 185-186 of the record had this to say:
“The DW1 would not have claimed that Exhibit P11 was made on 12/10/16, when he had given evidence that he was not the maker of Exhibit P11 and that he was merely asked to insert the date of 4/10/16 in it instead of 12/10/16 when it was actually made. Furthermore, since the DW1 had accepted that he made a statement on 4/10/16, but it was not Exhibit P11 which was dated 4/10/16, where is the actual statement which the DW1 made on 4/10/16 if it was not Exhibit P11? In addition, the DW1 could have given oral contents of the alleged statement he claimed he made to the police on 4/10/16 if it were not Exhibit P11.
It is very clear from the evidence of the DW1 about his claim of having made several statements to the police at the State CID, Abakaliki that he never gave oral account of the content of these statements particularly, the evidence about any defence of the 1st accused contained therein.
Therefore, in the absence of such evidence, the Court will infer from the available material as evaluated above that Exhibit P11 which was signed and dated 4/10/16 by the DW1 was actually his statement made on that 4/10/16. This is more particularly so, when by the admission of the DW1, there was a statement he made to the police at the state CID, Abakaliki on 4/10/16.
The Court will presume the existence of one or more facts if such a presumption is irresistible, or that there is no other reasonable presumption which fits into the proved or admitted facts. See Anyanwu & Ors v. Uzowuaka & Ors Supra.
Therefore, based on the admission by the DW1 that he made a statement to the police on 4/10/16 and he said Exhibit P11 is dated 4/10/16 and signed by the same DW1, no other presumption can reasonably fit into the proved facts that Exhibit P11 is that statement of the DW1 on 4/10/2016.”

The law is settled that evaluation and ascription of weight to the evidence led is a primary duty of the trial Court particularly when it concerns the credibility of a witness vis a vis oral evidence. When the trial Court has properly performed its duty and made a correct finding on the evidence led, the appellate Court must refrain from interfering with the finding or embarking on its own evaluation. The Court below admirably and correctly evaluated the evidence and came to the right conclusion that the appellant made Exhibit P11. The appellant’s evidence before the Court as recorded on page 147 of the record of appeal is that the deceased threw stones on the roof of their church and this made them to carry gravels from the church compound and threw it on his own roof. The same fact is contained in Exhibit P11. The contention that the Court did not ascribe the right weight to Exhibit P11 is not supported by the evidence on record.

Apart from the consistent and straight forward evidence of PW1 who was an eye witness to the murder of the deceased, the statement of the appellant in Exhibit P11 erased any doubt about the fact that the appellant was at the scene of the crime and fully participated in the hurling of stones at the deceased. Outside Exhibit P11, there was the evidence of PW3, the medical doctor who tendered Exhibit P4, the result of the post-mortem examination conducted on the deceased. In his evidence before the Court, he described in detail the injuries he discovered on the body of the deceased. He concluded by stating that the injuries discovered on the deceased could be inflicted by blunt object including chair, stone, pestle. Under cross-examination he said a boxing punch could cause such an injury if the punch is heavy. The evidence of the appellant was that the deceased claimed to be a boxing coach. There was no evidence before the Court below that the deceased engaged in boxing with anyone shortly before he was attacked by the appellant and others. From the entire evidence on record particularly the evidence of PW1, there is no doubt that the injuries found on the deceased were caused by the stones hurled at him by the appellant and his co-accused. In the face of PW1 and PW3’s evidence, which were not debunked or discredited, no Court would believe the appellant that he did not hurl stones at the deceased but only threw gravels on the deceased’s roof. The Court below ascribed the right weight to the statement. It is therefore not surprising that the Court below held at page 181 of record that:
“The evidence by the PW1 that the deceased died of stoning appeared to be in accord with the evidence of the PW3 who did the autopsy that the injuries found in the chest area of the deceased and in his lungs and ribs could be caused by blunt objects like stone, plank or even a fist punch, if the punch was heavy. There was no evidence of any fist punch or hit of plank on the deceased, but there was evidence of hit of stones on the chest and body of the deceased. The 1st accused gave evidence that the stones he threw were landing on the roof of the house of the deceased, and the specie of the stones he threw was gravel. It is further the law that the credibility of a witness may also depend upon his knowledge of the facts to which he/she testifies. And other factors to be considered before believing a witness are his disinterestedness, his integrity, his veracity and his being bound to speak the truth. See ADELUMOLA V. STATE SUPRA. In the instant case, these factors are found in the PW3, who was the medical doctor that conducted the autopsy in this case. By the same token, the evidence by this PW3 that the impact of stones could inflict the type of injuries that killed the deceased corroborated the oral evidence by the PW1 that her husband was stoned to death in her presence. There was no other evidence about the occurrence of any other act that could have caused the type of injuries found on the deceased. There was no exchange of fist punches between the deceased and the 1st accused or others.”

The appellant’s counsel raised issues on how the murder weapons, Exhibits P13A- P14 were recovered. The law is that an offence of murder can be proved without the weapon used in the commission of the offence. See REV. KING V. THE STATE (2016) LPELR-40046 (SC) AT 64-65 (C-A). Once there is sufficient and compelling evidence of the type of weapon used to kill the deceased and consistent with the injury found on the deceased, failure to tender the murder weapon is not fatal to the prosecution’s case. The evidence of PW1 and PW3 leaves no doubt on the fact that the injuries found on the deceased were caused by the stones hurled at him by the appellants and his co-accused. Even, if Exhibits P13A – P14 had not been tendered at all, the result would not have been different. The evidence of PW1 that the deceased fell down as a result of the stones hurled at him and he died shortly thereafter was not discredited. It was therefore reasonable for the Court below to hold that the injury inflicted on the deceased caused his death. The fact that the act of the appellant and his co-accused caused the death of the deceased was proved beyond reasonable doubt.

Certainly, the appellant knew that grievous bodily harm or even death as it happened in this case was a probable consequence of hurling stones of any size at the deceased. The fact that the appellant intentionally hurled the stones which caused the injuries that resulted in the death of the deceased is not in doubt. According to the appellant, his action was done in retaliation for the deceased’s action in throwing stones on the roof of their church. In CHUKWUNYERE V. THE STATE (2017) LPELR-43725 (SC) the Supreme Court Per OKORO, J.S.C AT 27-29(E-A) considered how intention is inferred in murder cases and held that:
“An intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in the death of or grievous bodily harm to the victim. Also, that if a man in full knowledge of danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to same extent as if he had actually intended the consequences to follow irrespective of whether he witnessed it. Now, taking into account the nature of the weapon used, in this case an axe – whether stainless or ordinary and the force applied on the head of the deceased as described by the PW1 and confirmed by PW3, the appellant cannot be heard to complain against his conviction for murder especially as the axe was used to hit the deceased on the head. There can be no doubt that a person delivering a violent brow with an axe on a vulnerable part of the body of the deceased such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his act .”
The cogent and credible evidence on record clearly and unequivocally point to the fact that the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence of his act. The prosecution proved all the elements of murder beyond reasonable doubt.

The Court below rightly convicted the appellant for the offence of murder. This appeal fails and it is hereby dismissed. The judgment of the High Court of Ebonyi State delivered in charge no HAF/1C/2017 on 30/4/2018 by Benson A.N. OGBU, J. is hereby affirmed. The conviction and the sentence passed on the appellant are hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA before now and he has characteristically dealt with the Issues raised in the Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court. I agree therefore with his reasoning and conclusion that the Appeal is unmeritorious and should fail. I too dismiss same. The Judgment of the High Court of Ebonyi State delivered in Charge No. HAF/1C/2017 on 30th April, 2018 by Benson A. N. OGBU J., is hereby affirmed. The conviction and the sentence passed on the Appellant are hereby affirmed.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment just delivered by learned Brother BOLAJI-YUSUFF – JCA in draft and I totally agree with his reasoning and conclusion that this appeal is unmeritorious. I equally dismiss same and affirm the decision of the lower Court in the Charge No. HAF/1C/2017 including the conviction and sentence of the Appellant.

Appearances:

Sir Ejike Ezenwa For Appellant(s)

J.E. Nwaonumah, Deputy Director, Ministry of Justice, Ebonyi State For Respondent(s)