PRINCE OTISI OKON v. THE STATE (2014)

PRINCE OTISI OKON v. THE STATE

(2014)LCN/7470(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of October, 2014

CA/OW/335AC/2011

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF THE OFFENCE OF MURDER

The ingredients of the offence of murder has been, repeatedly, stated by this court and the apex court in several authorities, that:
1. There must be evidence of death of the deceased
2. The dead resulted from the act/omission of the accused person
3. The accused person caused the death intentionally, or with knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See the case of Sule vs State (2009) 19 NWLR (pt. 1169) 33; Nkebisi vs State (2010) 5 NWLR (pt. 1188) 471; Mbang vs State (2010) 7 NWLR (pt. 1194) 431; Usman vs State (2011) 4 NWLR (pt. 1233) 1; Akpa vs State (2008) 14 NWLR (pt. 1106) 72; Musa vs. The State (2014) LPELR – 22912 (CA); Alewo Abogede vs The State (1997) 37 LRCN 674; Igabele vs The State (2006) NWLR (pt. 975) 100; Idiok vs The State (2010) LRCNCC 96. per. ITA GEORGE MBABA, J.C.A.

EVIDENCE: PROVING THE OFFENCE OF MURDER; WAYS OF PROVING MURDER

Of course, the above ingredients can be established by either of 3 ways:
i. By positive and direct eye witness account(s) of the killing, when it occurred, Blessing vs. FRN (2013) 12 WRN 36;
ii. By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred, Nasiru vs The State (1999) 2 NWLR (pt. 589) 82; Chiokwe vs The State (2005) NWLR (pt. 918) 424 or
iii. Confessional statement of accused person, adjudged voluntary, even when it is retracted, where the court is satisfied that it accords with the other pieces of evidence before it. See Haruna vs A.G. of the Federation (2012) 2009 LRCN 70 at 96; (2012) 32 WRN1; (2012) 9 NWLR (pt. 1306) 419; Oseni vs The State (2012) LPELR 7833 (SC); (2012) 268 LRCN 151; Blessing vs FRN (2013) 12 WRN 36. per. ITA GEORGE MBABA, J.C.A.

CRIMINAL LAW: CO-ACCUSED; THE PERSONS DEEMED TO HAVE TAKEN PART IN THE COMMISSION AND IS GUILTY OF THE SAME OFFENCE
It was not therefore mandatory for the prosecution to establish the precise act of each of the accused persons (or other assailants) that directly caused the death of the deceased, as they all acted in unison in causing the death of the deceased. After all, in law, when there is an agreement by two or more persons to commit an unlawful act, coupled with intent to achieve that objective, evidence of conspiracy is established and non of the accused can disown the act of the other in accomplishing their mutual or common objective. See the case of Galadima vs The State (2013) LPELR – 20402 (CA); POSU vs State (2013) 3 NWLR (pt. 1234) 393; Adejobi vs State (2011) 12 NWLR (pt. 1261) 347.
See also section 7 of the Criminal Code Law which states that, when an offence is committed each of the following persons is deemed to have taken part in the commission and is guilty of the same offence:
a) Every person who actually does that act or makes that omission which constitutes the offence
b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence
c) Every person who aids another person in committing the offence;
d) Any person who counsels or procures any other person to commit the offence.” See also POSU vs State (2011) 2 NWLR (pt. 1234) 393 ratio 15 per. ITA GEORGE MBABA, J.C.A.

PRACTICE AND PROCEDURE: TRIAL-WITHIN-TRIAL; WHEN CAN TRIAL-WITHIN-TRIAL BE CONDUCTED
The position of the law is that, accused person who alleges that his confessional statement was obtained fraudently or involuntarily, has a duty to raise objection to the tendering of the same, timeously, at the point of tendering the same, and to call for trial-within-trial, to determine the voluntariness of the same. See Oseni vs State (2012) LPELR -7833 (SC); Alarape vs The State (2001) FWLR (pt. 41) 1872; and Oji vs FRN (2013) ALL FWLR (pt. 668) 920, ratio 3, where this court held that:
“. . . where an accused person is defended by Counsel, it is the duty of such Counsel to object to the tendering of a statement purportedly made by the accused on the ground that the statement was not voluntary, before a mini trial becomes necessary. Where such Counsel failed to play his part and the Statement was admitted, he cannot properly raise absence of mini trial on appeal . . .” See also the case of Egbedu vs State (1991) 11-12 SC 98; Okoroh vs State (1990) NWLR (pt. 125) 128 per. ITA GEORGE MBABA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A COURT CAN CONVICT ON THE RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON AND THE CONDITIONS THE COURT MUST CONSIDER BEFORE DOING SO AND WHETHER A CONFESSIONAL STATEMENT IS THE BEST AND STRONGEST EVIDENCE OF GUILT

Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the court from using it to convict the Accused person, if the court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70:
“A court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial judge should evaluate the confession and the testimony of the accuse person and all the evidence available. These entail the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions:
a. Is there anything outside the confession to show it is true?
b. Is it corroborated?
c. Are the relevant statements made in it, of facts true as far as they can be tested?
d. Did the accused person have the opportunity of committing the offence?
e. Is the confession possible?
f. Is the confession consistent with the other facts which have been ascertained and have been proved?”

In the case of Salahudeen vs The State (2013) LPELR – 21851 (CA) this Court reiterated:
“It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself.” See Yusuf vs The State (2012) LPELR – 7878 (CA); Akpa vs State (2008) ALL FWLR (pt. 420) 644. per. ITA GEORGE MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

PRINCE OTISI OKON Appellant(s)

AND

THE STATE Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Abia State High Court in charge No.HOH/2C/2004, delivered on 14/1/2011 by Hon. Justice K.C. Nwankpa, wherein the trial Court convicted the Appellant and one other of the offence of murder, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol.11, Laws of Eastern Nigeria, 1963, applicable to Abia State. Appellant was sentenced to death by hanging.

At the Court below, Appellant was charged, along with one other; for killing one Agbaeze Kalu Ukariwo and one Itum Kalu Okoroafor on 22nd September, 2003, at Amogudu Abiriba Ohafia Judicial Division, all contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable in Abia State. They were also charged for conspiracy to commit the murder contrary to Section 516(A) of the said Criminal Code, which was later withdrawn.

Appellant (as accused person) pleaded not guilty to the charge on 24/1/2008, when the trial commenced, de-novo. The prosecution called four (4) witnesses to prove the charge. The Appellant testified on his behalf and called no witness. At the end of the trial, Counsel filed written addresses. The trial Court, in a considered judgment, convicted the Appellant and his co-accused for the murder of Agbaeze Kalu Ukariwo, but discharged and acquitted them in respect of Itum Kalu Okoroafor.

Appellant filed Notice of Appeal on 14/2/11 and disclosed 4 grounds of appeal, as per pages 219 to 223 of the Records of Appeal. Appellant filed his brief of argument on 6/6/2013 and disclosed three (3) issues for determination as follows:
“(1) Was the Learned trial judge right in convicting the appellant based on the evidence of PW3 and circumstantial evidence of PW1 and PW2? (Ground 1).
(2) Whether the trial Judge was right when he attached probative value to Exhibits A B and C in convicting the Appellant (Ground 2).
(3) Whether the trial judge was right when he held that the defence of the Appellant was unreliable and relied on Exhibits G as establishing the guilt of the Appellant – Grounds 3 and 4.”

The Respondent filed their brief on 9/10/13, which was deemed duly filed on 12/2/14. A lone issue was distilled by the Respondent for determination, as follows:
“Whether the Learned trial judge was right in convicting the appellant of the offence of murder based on the evidence before him.”

When the appeal was heard on 22/9/14, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.

Arguing the appeal, Anaga Kalu Anaga Esq, who settled the Appellant’s brief, on issue one, submitted that the trial Court was wrong to have convicted the Appellant, based on the evidence of PW3 and the circumstantial evidence of PW1 and PW2. He said that it is trite under our jurisprudence and under section 135 of the Evidence Act 2011, that the burden of proof rests on the person who asserts a particular fact, and in criminal cases, proof is beyond reasonable doubt. He listed the ingredients of offence of murder that must be proved by the Prosecution, relying on the case of Idowu Vs State (2000) 12 NWLR (pt. 680 and Oludamilola Vs The State (2010) 8 NWLR (pt.1197) 565.

Counsel submitted that the allegation against the Appellant of killing Agbaeze Kalu Ukariwo is founded on circumstantial evidence, which are even contradictory. He referred us to the evidence of PW1, saying that while PW1 narrated the incident said that she saw some Abiriba Youths chasing Agbaeze Ukariwo and that she was standing at about 3 poles observing the incident and saw when Appellant shot Agbaeze Ukariwo on the shoulder. But that under cross examination, she said:
“The Youth were chasing Ukariwo Agbaeze from towards where I was standing. I was only seeing the back of the people that were chasing him. It was the noise that attracted me outside otherwise I would not have come out. The noise that attracted me outside was a gun shot. The gun had been shot before my coming out.” See page 91 of the Records.

Counsel also referred us to the evidence of PW2 on Page 95 of the Records of Appeal, where she said:
“While at the Police Station, somebody came and told the brother of Agbaeze that the Youths had killed Agbaeze. I later left the Police Station and on my way I went to a retired doctor who treated me…”

He said that PW2 did not make any statement to the Police about the incident that she witnessed the killing of Agbaeze.

On the PW3’s evidence, Counsel said the same was founded on hear-say, that the accused persons were meeting at the Palace of Enachioken and planning to kill; that he later saw the accused persons and others holding guns, matchets and other dangerous weapons, chasing Agbaeze Ukariwo and, when the said Agbaeze Ukariwo tried to scale a wall, the accused persons and three others shot him at the back of the shoulder near the spinal cord and he fell down; Counsel said that the PW3 did not mention the names of the accused persons in his statement to the police, Exhibit C and no identification parade was conducted for PW3 to identify those he claimed were chasing Agbaeze Ukariwo as he did not state, pointedly, who shot him.

Counsel argued that the evidence of PW1, PW2 and PW3 did not fix any of the accused persons as one who killed Agbaeze, yet the trial Court relied on their evidence in convicting the Appellant; that that was contrary to the principles of Law laid down in Jua Vs The State (2010) 4 NWLR (pt.1184) 217 at 255; Nwaeze Vs The State (1996) 2 NWLR (pt.428) 1.

Counsel also referred us to the findings of the trial Court on the PW1’s evidence (page 179 – 181 of the Records) where he said the Court had discredited the evidence of the PW1, as his evidence in Chief had sharply contradicted what he said under cross examination on the same issue. He submitted that the trial Court was therefore wrong to turn back to rely on the same discredited evidence of PW1 to convict the Appellant as the Court did on page 209 of the Records.

On issue 2, whether the trial Court was right in attaching probative value to Exhibits A, B and C in convicting Appellant on count 1, Counsel answered in the negative. He said that Exhibits A and B were statement made to the Police by the PW1, while Exhibit C was the PW3’s statement to the police; that in evaluating the said exhibits, the trial court had observed that the PW1’s statement to the Police in Exhibits A and B:
” never made any statement near the evidence she gave (in court) on those she saw chasing or pursuing Agbaeze Ukariwo and how 1st accused (Appellant) shot Agbaeze Ukariwo on the shoulder.. (See pg 179 of the Records)
Notwithstanding the contradictions in the evidence in court and the statements of PW1 and PW3 (Exhibits A, B, & C), Counsel said, the trial Court still believed the evidence of PW1 and convicted the Appellant; that the said evidence should have been rejected. He relied on the case of Chukwu Vs The State (2007)13 NWLR (pt. 1052)430 at 465, where this Court held:
“Where the testimony of a witness is material contradictory with the previous extra-judicial statement made by the witness to the police, the Court or tribunal seised of the trial of the case is enjoined to disregard both the testimony and the extrajudicial statement, especially when it is impossible to determine which of the two statements represents the actual truth.”

Counsel further relied on the case of Olayinka Vs The State (2007) 9 NWLR (pt.1040) at 561 at 584, where the Supreme Court said:
“The effect of contradiction in the evidence of witnesses is that a witness or some of the witnesses told a lie and it is not safe to convict an accused person on such evidence and so the Court gives the benefit of the doubt to the accused person.”

On issue 3, whether the trial judge was right when he held that the defence of appellant was unreliable, and relied on Exhibits G as establishing the guilt of the appellant, Counsel also answered in the negative. Counsel referred us to the findings of the trial court (page 209 of the Records) on the Confessional statements of the Accused persons Exhibits D, F, & G (which the Court found to be safe to rely upon in establishing the guilt of the Accused persons) and submitted that in arriving at the above conclusion, the learned trial Court misdirected himself and came to a wrong conclusion, as the Appellant, at the trial, consistently maintained that he did not make Exhibit G or that he was threatened by the police to sign a prepared statement; that Exhibits G was made under the same circumstances as Exhibit E and should have been struck out, especially as the Investigating Police Officer (IPO), who conducted the investigation and took the statements, was not called as a witness, to debunk the evidence of the Appellant that he was forced to sign the statement prepared by the Police. He referred us to pages 105 to 106 to 116 of the Records.

Counsel further submitted that the trial court was wrong by failing to establish the voluntariness of Exhibits G, by conducting a trial- within-trial, upon the rejection of the statement by the Appellant. He relied on Olayinka vs The State (Supra).

Counsel further submitted that the trial court erred, when he said on page 210 of the Records
“The defense of the accused persons are not credible and could not dislodge the prima facie case made out against them in respect of court of the offence charged in the information.”

Counsel submitted that, at all times, in our criminal jurisprudence, it is the duty of the prosecution to prove the guilt of the accused person, and not for the accused to prove his innocence; that by the above findings of the trial court, he placed the burden of proof of innocence on the Appellant; that the prosecution did not prove the charge against Appellant, beyond reasonable doubt; that the failure to call a vital witness is fatal to the Prosecution’s case. He relied on Tijani vs C.O.P. (1994) 3 NWLR (pt. 335) 692.

Thus, Counsel submitted that the Prosecution did not prove the charge against the Appellant beyond reasonable doubt. He relied on Oche vs The State (2007) 5 NWLR (pt. 1027) 241 at 235, and urged us to resolve the issues for the Appellant and allow the appeal.

Responding, the learned Attorney General of Abia State, Chief Umeh Kalu, with him D. U. Ogumbuka Esq, submitted that the Appellant was convicted after the trial court had exhaustively reviewed the evidence of all the witnesses and the exhibits tendered and came to the conclusion that the Appellant had committed the offence of murder of Agbaeze Kalu Ukariwo, and sentenced him to death, while discharging him of the offence of murder of Itum Kalu Okoroafor. He submitted that the prosecution had discharged its burden of proof by establishing the necessary ingredients of offence of murder, namely:
a) That the deceased is dead.
b) That the act or omission of the accused which caused the death of the deceased was unlawful and
c) That the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. He relied on Alewo Abogade vs. The State (1997) 37 LRCN 674; Godwin Igbale vs The State (2006) 6 NWLR (pt. 975) 100; Idiole vs The State (2010) 8 LRCNCC 96.

Counsel submitted that the evidence of PW1, PW2 and PW3 left nobody in doubt that the accused person murdered the deceased; that PW3 saw the Appellant shoot the said Agbaeze Ukariwo. He referred us to pages 97 of the Records, lines 2 – 12, where PW3 said:
“When the accused persons got into our compound, it appeared they saw Agbaeze and noticed that Kalu Agbaeze was trying to escape from the compound through a dwarf wall he was climbing. But the accused and three others shot Kalu Agbaeze at the back of the shoulder near the spinal cord. The impact of the gun shot threw him out of the road and he fell down there. I saw the two accused persons and the three others when they came out of our compound to the spot where Kalu Agbaeze was lying and they beat some part of his body with their hammer before finally carrying the body and moved it away. But I do not know where they carried the body of Kalu Agbaeze to. . .”

Counsel said that the above piece of evidence was neither contradicted nor impugned and the trial court accepted it as true; that it was obvious the Accused persons did not only kill the deceased but made sure he was dead.

Counsel admitted that the actual accused that shot Agbaeze was not identified by the witnesses (a point which the defence sought to capitalize on, and insisted that there should have been an identification parade). Counsel submitted that there is no need for identification parade, where there is clear and uncontradicted eye witness account of the person(s) who committed the offence. He relied on Attah vs The State (2010) 10 NWLR (pt. 1201) 200; Awosika vs The State (2009) 17 NWLR (pt. 1169) 43; he said that in this case the trial court held that the witnesses recognised the Accused persons (see Ukpabi vs The State (2004) 1 NWLR (pt. 884) 39; Ndukwe v The State (2011) 9 LRCNCC 219; Abudu vs The State (1985) 1 NWLR (pt. 1) 55 R. vs Turnbull (1976) 3 ALL ER 549; Ibrahim vs The State (1991) SCNJ 129; Balogun vs AG. Oyob (2002) 6 NWLR (pt. 763) 512 at 534).

Counsel further submitted that the issue of the exact person who shot the deceased not being identified, was not of any consequence, because the trial court had held that “the act was done in furtherance of common intention to prosecute an unlawful purpose and in so doing, if the unlawful act is performed by any person within the group, each of the group is discerned to have committed the act” See page 208 of the Records.

Thus, Counsel submitted that it did not matter whether it was Appellant or the other accused, or any of the other persons who chased the deceased on their murderous mission, that shot the deceased, all the persons that acted in concert, joined in the unlawful assault which resulted in the death of their victim.; that it is not mandatory for the prosecution to establish the precise act of a particular accused person that directly caused the death of the deceased. He relied on the case of UBIERHO vs THE STATE (2005) 5 NWLR (pt. 919) 644; MUONWEM & ORS vs QUEEN (1963) ALL NLR 95; AHMED vs THE STATE (1998) 61 LRCN 4410; ALARAPE & ORS vs STATE (2001) 84 LRCN 600; RAPHAEL UDE vs THE STATE (unreported) judgment of this court delivered on 27/4/12.

On the Exhibits A,B and C, Counsel submitted that the Appellant’s Counsel seems to complain that the exhibits were admitted at all, whereas, there was no objection at the tendering of the documents and they were relevant to the case! Counsel said that the Appellant’s statement was confessional in nature, though at the trial he tried to resile from it; that the trial court, after all the considerations, relied on it to convict the Appellant; that that was proper in law. He relied on the Supreme Court case of SULE vs THE STATE (2009) 17 NWLR (pt. 1169) 33 at 60, and the case of Obosi vs The State (1965) NWLR 119; Ikemson vs The State (1989) 3 NWLR (pt. 110) 455; Ejinima vs. The State (1992) 7 NWLR (pt. 255) 525; Egboghomnome vs The State (1993) 7 NWLR (pt. 306) 383; Princewill vs The State (1994) 6 NWLR (pt 353) 703 and Aiguoreghian & Anor vs. The State (2004) 3 NWLR (pt. 860) 367.

Counsel also relied on Oseni vs The (2012) 268 LRCN 151 at 183-186 on the point that the Appellant did not object to the tendering of The Statements in evidence at the time of the tendering. See also Stephen Haruna vs. A.G. of the Federation (2012) 2009 LRCN 70 at 96, which he said is to the effect that the proper time to object to admissibility of a document, particularly confessional statement, is when the same is tendered in evidence.

Thus, Counsel submitted, it was too late in the day for the Appellant to complain about the admissibility of the confessional statement; he said that though Appellant resiled at the trial, when the statements are considered in the con of the test of confessional statements as set down in R vs Sykes (1913) CAR 13 (and approved by several local authorities), his denial pales to insignificance. He relied on Haruna vs. A.G. of the Federation (2012) 2009 LRCN 70, where the Supreme Court said:
“A court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial judge should evaluate the confession and the testimony of the accuse person and all the evidence available. These entail the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions:
a) Is there anything outside the confession to show it is true?
b) Is it corroborated?
c) Are the relevant statements made in it, of facts true as far as they can be tested?
d) Did the accused person have the opportunity of committing the offence?
e) Is the confession possible?
f) Is the confession consistent with the other facts which have been ascertained and have been proved?”
See also Alarape vs The State (2001) 14 WRN 1; Achuba vs. The State (1976) NSCC 74; Idowu vs The State (2000) 80 LRCN 2788; Nwokearu vs The State (2010) 15 NWLR (pt. 1215) 1 at 29 – 30; Obisi vs Chief of Naval Staff (2004) 5 SCNJ 99; Archibong vs The State (2006) 14 NWLR (pt. 1000) 349 at 377 – 378.

Counsel submitted that the trial court did just that in this case before coming to its conclusion.

On the point that the IPO who investigated the case and the officer who prepared the report were not called as witnesses to tender the statements and reports of the investigation, Counsel submitted that the case had been adjourned several times, because the IPO was not found, and so PW4 who had worked with them in the said department at the time of investigation, and knew the handwriting of the IPO and the other officer, had to come from Taraba State to testify and tender the documents. He relied on section 49 (a) and (b) of the Evidence Act 2011.

Counsel added that the conviction of Appellant was not based solely on the documents tendered by the PW4; that the evidence of one credible witness is even enough to establish conviction. He relied on the case of Eke vs The State (2011) 200 LRCN 143 at 156; Ofoke Nwambe vs The State (1995) 3 NWLR (pt. 384) 108; Odili vs The State (1997) 4 SC 1. He relied again on the evidence of PW3, which he said was enough to found the conviction of the Appellant.

He urged us to dismiss the appeal, adding that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. Nwaturuocha vs. The State (2011) 9 LRCNCC 1 at 13.

RESOLUTION OF ISSUES
A brief facts of this case shows that the Appellant and the other Accused person, operating under the auspices of Abiriba Youths, apparently at the instigation of the Enachioken (Chief) of Abiriba, on 22/9/2003, unleashed violence and mayhem on their perceived enemies or enemies of Enachioken, and such persons were termed ‘bad boys’ of the community. Apparently, the Enachioken had sent his civil and security aids including the Appellant, to fish out the ‘bad boys’ and deal with them. They (aids) met at the palace of the Enachioken to plan their action. They first searched for Agbaeze Kalu Ukariwo at the house of Itum Okoroafor, but could not find him and PW1 (the wife of Itum Okoroafor) told them Agbaeze was not there. They left and in the course of their search for Agbaeze, they assaulted and injured his mother, wife and sister. From the evidence of PW3, the assailants had planned to eliminate Agbaeze Ukariwo, Itum Kalu Okoroafor and Ekuma Ogbuagu, and PW3 (Kalu Oji) who was told of the plan tipped Ekuma Ogbuagu of the plot and he escaped. They caught Agbaeze and Okoroafor. PW3 saw when Appellant and his cohorts shot Agbaeze.

Investigations revealed that Agbaeze and Okoroafor were killed by the youth group. The police sought the assistance of the Enachioken to arrest the killers, without success. The 1st accused was later arrested by a vigilante group and brought to the police, while the Appellant was arrested subsequently and they made confessional statements to the police, which they later denied. Appellants’ statement was Exhibit G.

Was the trial judge right in relying on the evidence of PW1, PW2 and PW3 as well as on the confessional statement of the Appellant (Exhibit G) to convict the Appellant of murder?

I think the above constitutes the real issue for determination of this appeal, as also summarized by the lone issue, distilled by the Respondent. A close appraisal of the three issues by the Appellant can also resolve them into one, as stated above.

Appellant’s Counsel had picked holes in the evidence of PW1, and PW3, saying that their extra-judicial statements to the Police conflicted with their oral evidence in court and that they did not specifically identify the person who shot the said Agbaeze Ukariwo; that the court in its findings even acknowledged the sharp contradiction in what PW1 said in her statement to the police in Exhibits A and B, compared to her evidence in-chief and under cross examination on the same point – about those that chased Agbaeze and what she saw – and yet the trial court still relied on the said discredited evidence to convict the Appellant!

But the Respondent said the evidence linked the Appellant (and the other accused) to the crime, starting from their conspiracy to commit murder; that the murder of Agbaeze was well established by the prosecution; that there was evidence of eye witnesses of how the accused persons (including Appellant) chased the said Agbaeze and shot him on the back of his shoulder near the spinal cord, and when he fell down, they still hit him to ensure he was dead, and they carried the body away; that though no witness was sure of who, among the assailants, actually, shot the deceased, it was clear they acted in concert and achieved their end; that Appellant also admitted the offence in his confessional statement (Exhibit G), though he tried to resile later, and considering the facts that the documents were never objected to, when tendered, it was too late in the day for Appellant to object to its use, alleging that the confessional statement was not voluntary!

In this case, PW2 and PW3 were adjudged eye witnesses of how Agbaeze Kalu Ukariwo was chased by the Appellant and the other 4 youths (including the 1st accused) and finally shot and killed. The PW3 (Kalu Oji), in particular, gave some gory detail of what happened on page 96-97 of the Records of Appeal:
“On 22/9/2003 I was in the provision store of one Madam Ure. The store is located opposite my own house. . . I saw one pick-up van that was packed at the back of the provision store. . . While I was still at Ure’s provision store, I saw one Oji Ifigbo of Umueso Abiriba. He asked the whereabouts of the person that parked the pick-up vehicle there. . . I observed the way he was behaving and that made me to ask him whether something was wrong. He said there was something wrong and I wanted to know what was that; he told me that he met the accused persons and 3 others at the palace of Enachioken where they were holding meeting. That they dismissed and agreed to kill the following persons: (i) Kalu Agbaeze (ii) Itum Okoroafor and (iii) Ekuma Obuagu. He told me to convey the information to the owner of the pick-up van. No long after, the owner of the pick-up van appeared and he is Ekuma Obuagu. I accordingly conveyed the information to him. He got into his pick-up van and drove away. Thereafter, I bought what I went to buy from the provision store and went back to my house. I remained in my house up to 1:30pm and while carrying my baby, I saw the accused persons with three other persons together and they were holding guns and matches and cadges (sic). They tied red ribbon around their heads. It was then I got to know that they were pursuing Kalu Agbaeze and I did not know that Agbaeze had already run into our compound. When realised the information I was given about the plans of the accused persons, I rushed out of the compound to Ure’s provision store and stood . . . When the accused persons and three others got into our compound, it appeared they saw Kalu Agbaeze there and noticed that Kalu Agbaeze was trying to escape from the compound through a dwarf wall he was climbing. But the accused and three others shot Kalu Agbaeze at the back of the shoulder near the spinal cord. The impact of the gun shot threw him out off the road and he fell down there. I saw the two accused persons and the three others when they came out from our compound to the spot Kalu Agbaeze was lying and they beat some part of his body with their hammer before finally carrying the body and moved away. . . I made statement to the police. . .”

Under cross examination, PW3 said he knew the accused persons very well before the day of the incident; that all the five assailants were armed with guns, machetes and hammers at the time of the attack; that they were facing the direction he was standing, when they shot Kalu Agbaeze; that he did not run away when the gun shot went out, though some people ran away. Her statement to the Police was admitted as Exhibit C.

I think that evidence remained unassailed, even when PW3 admitted he did not mention the names of the accused persons to the Police at the time he made Exhibit C, and that was because he did not know their names then, though he knew them, physically.

PW1, Mrs Ugonma Itum was the wife of Itum Kalu Okoroafor who was also murdered, he said that Agbaeze was an apprentice trader under her husband. She said that the accused persons belonged to the group of Abiriba Youths who were acting as security organ for the Enachioken (Traditional Ruler) of Abiriba. She testified that on that date, 22/9/2003, she was in her house when Iro Ukoha came to ask about Agbaeze Ukariwo and she answered that Agbaeze was not in their house; that thereafter 5 youths including the Accused persons came to her compound through the backyard. The other youths were: Ezeikpe Jemico, Iro Ukoha and Iwenawe; that they retreated and went away when they saw her. Her husband later came home and she told him about the movement of the youths; her husband later went out to buy globe for lantern and was carried by a motor cyclist, one Okechukwu, who later returned to ask her about her husband, saying that the Youths of Abiriba invited the husband to the palace of Enachioken and he dropped him (husband) there. She went searching for her husband, and on her way saw one Nwanna Ukariwo whose wrist (left) had just been cut off and she said it was done by the Abiriba Youths; she went to the Enachioken palace and met the Enachioken and enquired about her husband and the Eze told her to go back home that her husband will return home; she went home and after a while went back to the palace and the Enachioken assured her, again, that her husband would return home by 6pm. She said that it was on her second return home that she saw 1st accused person shoot Agbaeze Ukariwo on the shoulder area and Agbaeze started shouting Abiriba Eh! Abiriba Eh! The Youths carried Agbaeze along and went on their way. By 6pm her husband did not return and she went back to the palace of Enachioken and on her way saw the 5 youths (including the accused persons) and followed them and one of them Iro Ukoha gave his gun to his colleague and took her to the palace of Enachioken, there he (Ukoha) made some sign language to the Enachioken and later went into a nearby bush. She then suspected that her husband may have been killed and started to cry; she then went to the police to report. Her statement to the police was Exhibits A and B. See page 88 to 89 of the Records.

Under cross examination, she said she saw when the Youths were chasing Agbaeze Ukariwo; she said that the Appellant and the Enachioken – Eze Kalu Kalu Ogbu are maternal relations of her late husband and that her husband and the Enachioken were in good relationship. Her evidence was not damaged except the part that said she saw when the 1st Accused shot the deceased or when the Youths chased the said Agbaeze (deceased).

PW2 was Mrs Nwanna Agbaeze, the wife of Agbaeze Ukariwo. On 22/9/2013, her husband left in the morning for job of moulding blocks. He returned at about 11 am and enquired whether Iro Ukoha came to look for him – Iro Ukoha was one of the members of Amaeze Abiriba Youths. When she told him Ukoha did not come, he decided to go and look for Ukoha in his house; she followed him and tried to discourage her husband from going, unsuccessfully; she returned home and at that point she said the Youths came to their house and seized the mother of Agbaeze and tied her two legs together; when the Youths saw her and her sister-in-law (Nneji), they left her mother-in-law and pursued them; Iro Ukoha caught up with her and gave her a matchet cut on her left palm; he ordered them to run and they did, following the direction that he (Ukoha) directed and that was to the bush. In the bush, she said that the 1st Accused removed the wrapper she used to cover her body and tore it into two and used grass to tie her mouth; they tied her legs and hands and those of her sister-in-law (Nneji) and left them in the bush, promising to go in search of Agbaeze and if they failed to see him, they would return to kill PW2 and her sister-in-law. When the assailants left, they were able to untie each other in turns; they ran to Enachioken and he (Eze Kalu Kalu Ogbu) delegated two men to take them to the hospital; on their way to the hospital, she said, she saw her husband, Agbaeze, who told his sister to go home and asked her (PW2) to go with him to the palace of Enachioken and when she insisted she was from there and must obey the Enachioken, who had directed her to go to the hospital, she left the husband but met Kalu, the husband’s brother, on the road who rather took her to the Police station, first, from there the police issued her with a medical form to go for treatment in the hospital; she went but did not see a doctor and so went back to the police station. It was at the police station that someone came to tell Kalu that Agbaeze had been killed! See pages 93-95 of the Records.

Again this gory evidence by PW2 of complete breakdown of law and order in the community, apparently, at the behest of a purported palace security of the Eze (the Enachioken of Abiriba), Eze Kalu Kalu Ogbu, was not denied, controverted or demolished, under cross examination. The Police Report Exhibit ‘H’ rather confirmed it:
“…that suspects . . .
1) Iroh Ukaoha (m)
2) Otusi Okon (m) (Appellant)
3) Agwu Emeka Eme
4) Ijekpa Obasi (m) alia ‘Jeje’
5) Amaobi ama alias ‘Iwelewe’ and
6) Jonah Ezeikpe, were the members of vigilantee gang loyal to HRH Eze Kalu Ogbu the Enachioken of Abiriba on whose instruction the above named suspects conspired among themselves on 22/9/2013 and killed the two mentioned deceased persons who opposed his rulership as the Enachioken of Abiriba…” See page 24 of the Records.

It is difficult to appreciate how and why such brutal and brutish show of primitive force/destruction was unleashed on the people of Abiriba on the said 22/9/2003 by agents of their traditional ruler, whose domain is subject to the control and supervision of the Local Government Authorities and the police and regulated by laws, yet the citizens and government apparatus appeared helpless, resulting in the death of people, massive violence, maiming assault and intimidation of people and subjucation of the entire community!

Where were the police, when the felons took the laws into their hands and acted or operated a republic of violence, killing and torturing people within Abia State of Nigeria?

What happened to the Enachioken, Eze Kalu Kalu Ogbu, upon charging the 2 Accused persons to court for the murders? Why was he (the Eze) not charged along with them and where are the other assailants, named in the Police Report (Exhibit H), other the two accused persons, charged? The report of the Police had specifically recommended the Eze Kalu Kalu Ogbu to be tried along with the Accused persons and other suspects for one murders. See page 30 of the Records.

I think, it is a grave assault on the law and justice system to leave out the Enachioken Eze Kalu Kalu Ogbu and the other named suspects from prosecution for murder of the decease, Agbaeze Kalu Ukariwo, and Itum Okoroafor, and for the conspiracy and assault/battery of the wife, mother and sister of the deceased Agbaeze! The Police and the State had a duty to check that affront to law and order, and I urge them to act.

Appellant had tried to spot contradictions in the evidence of the prosecution, saying that the extrajudicial statements of PW1 and PW3 (Exhibits A, B and C) did not tally with their oral testimonies in court; that in the circumstances, both their statements to the police and their evidence in the court should have been rejected as the court could not choose which one was true. I think the only point of difference was between the statements of Pw1 to the police and her oral evidence in court as to those she said, she saw chase and shot Agbaeze Ukariwo, which the learned trial court said should be taken with circumspect, and rejected, as they were not consistent, especially as she said in-chief, that she saw when the Appellant shot Agbaeze Ukariwo, but under cross examination said she was only seeing the back of the people who were chasing Agbaeze, and that it was the noise of the gun shot that attracted her to come outside; that the gun had been shot before she came outside, meaning that she did not see when the gun was shot and who did it! (See pages 87 and 91 of the Records).

Of course, the rejection of that piece of evidence by the trial court did not affect her other evidence on the criminal acts of the Accused persons and their cohorts and how her husband was summoned to the Eze’s palace and the role of the Eze in the disappearance (and murder) of her husband. That too did not disturb the credible evidence of PW3, which stood on its own, uncorrupted, as eye witness account of how the two accused persons (including Appellant) and the other 3 named youths, chased, shot and killed Agbaeze Kalu Ukariwo (who was also variously called Agbaeze Ukariwo or Kalu Agbaeze).

In the case of Galadima vs State (2013) LPELR – 26402 CA, it was held that the main interest of the court is the union; that witnesses are in unison as to the happening of the event, though they give different versions of the peripheral surrounding of the event, depending on their perspectives. See also Ochemaje vs. the State (2008) 5 NWLR (Pt. 1109) 57

On the issue that none of the witnesses clearly identified who, among the accused and the other 3 assailants actually shot the gun that stopped Agbaeze, I do not think that mattered, at all, as there was sufficient evidence that each of them was armed with gun, matchet and hammer and they had met to agree to kill Agbaeze and the other 2 persons and they were all chasing Agbaeze to kill and shot him, and when he fell, they all beat even the fallen body and carried it away! They acted in concert to attain their objective and each of them was jointly responsible for the cause of the act that snuff off the life of the deceased, Agbaeze, in the circumstances.
It was not therefore mandatory for the prosecution to establish the precise act of each of the accused persons (or other assailants) that directly caused the death of the deceased, as they all acted in unison in causing the death of the deceased. After all, in law, when there is an agreement by two or more persons to commit an unlawful act, coupled with intent to achieve that objective, evidence of conspiracy is established and non of the accused can disown the act of the other in accomplishing their mutual or common objective. See the case of Galadima vs The State (2013) LPELR – 20402 (CA); POSU vs State (2013) 3 NWLR (pt. 1234) 393; Adejobi vs State (2011) 12 NWLR (pt. 1261) 347.
See also section 7 of the Criminal Code Law which states that, when an offence is committed each of the following persons is deemed to have taken part in the commission and is guilty of the same offence:
a) Every person who actually does that act or makes that omission which constitutes the offence
b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence
c) Every person who aids another person in committing the offence;
d) Any person who counsels or procures any other person to commit the offence.” See also POSU vs State (2011) 2 NWLR (pt. 1234) 393 ratio 15

Appellant had tried to disown his confessional statement, blaming the trial court for not conducting trial-within-trial to determine the voluntariness of the said confessional statement, alleging that he was threatened to make it.
I think all that was wishful thinking, and after-thoughts, since Appellant, (or his Counsel) raised no objection or challenged the said confessional statements at the time it was tendered by the prosecution. See page 101, of the Records of Appeal, where the Appellant’s Counsel, A. A. Kalu Esq, at the time PW4 applied to tender the statement by the Appellant (Exhibit G), said he had no objection to its admissibility.
The position of the law is that, accused person who alleges that his confessional statement was obtained fraudently or involuntarily, has a duty to raise objection to the tendering of the same, timeously, at the point of tendering the same, and to call for trial-within-trial, to determine the voluntariness of the same. See Oseni vs State (2012) LPELR -7833 (SC); Alarape vs The State (2001) FWLR (pt. 41) 1872; and Oji vs FRN (2013) ALL FWLR (pt. 668) 920, ratio 3, where this court held that:
“. . . where an accused person is defended by Counsel, it is the duty of such Counsel to object to the tendering of a statement purportedly made by the accused on the ground that the statement was not voluntary, before a mini trial becomes necessary. Where such Counsel failed to play his part and the Statement was admitted, he cannot properly raise absence of mini trial on appeal . . .” See also the case of Egbedu vs State (1991) 11-12 SC 98; Okoroh vs State (1990) NWLR (pt. 125) 128

In his evidence in court, the Appellant denied the charge, but admitted being in the village on the said 22/9/03. He also admitted being a member of the Youth Organisation which worked for the Eze Kalu Kalu Ogbu, and terrorised the community. See the evidence of DW2 on pages 113 to 116 of the Records.
The statement of one Alex Ubong, DSP, attached to Divisional Police Headquarters, Abiriba, shown on pages 16-17 of the Records, appears very relevant and instructive here. He said:
“. . . I am the Divisional Crime Officer, Abiriba Police Division Abia State. I remember that on 29/09/2003, at about 7.30 hours I was on duty in my office at the Divisional Police HTQ, Abiriba. While there, one Joy Iroh Ukoha ‘f’ who is the wife to Iroh Ukoha – the leader of the Abiriba Youths, was brought to my office. She told me that she was assaulted by one Agbaeze Kalu Ukariwo ‘m’ who beat her up and caused her harm on her leg. On hearing this, I directed the CRO to incident the (sic) and refer to DCB for investigation. I also directed that three policemen be detained (sic) to go with Joy Iro Ukoha ‘f’ to arrest the suspect – Agbaeze Kalu Ukariwo ‘m’. but the woman complainant objected to go with the police to arrest the suspect, saying that her husband – Iro Ukoha and his Abiriba Youth are already inside town looking for the suspect to arrest, that her husband is of the opinion that the suspect would be arrested at Itum Okoroafor alias teacher’s house, where the suspect used to go and smoke indian hemp. I told Joy Iro to inform her Husband to come to meet me at the police station, so that we could turn up to search for the suspect and arrest him for the offence of assault occasioning harm reported against the suspect. The woman left my office to go to the hospital to treat herself and did not come back. . . At about 15.45 hours of the same date 22/09/03, one Kalu Ukariwo a senior brother to Agbaeze Ukariwo came to the Police Station and reported that his junior brother -Agbaeze Kalu was kidnapped by Abiriba Youth group i.e (1) Iroh Ukoha, (2) Prince Otisi Okon (3) Ijekpa Obasi alias Jeje ‘m’ (4) Amaobi Ama alias Iwolewe ‘m’ (5) Jonah Ezeikpe (6) Agwu Emeka Eme and (7) Igbanni Ekwuani, on the early hours of 22/09/03 and since then he did not see his said brother again, adding that he suspected that the named suspects have killed the said Agbaeze Kalu Ukariwo. While accepting this complaint at the counter, one Mrs Itum Kalu Okoroafor came to the police station in company of one Okoroafor who reported that his senior brother, Itum Kalu Okoroafor, alias teacher ‘m’ was kidnapped by the same Abiriba Youths named above along side Agbaeze Kalu Ukariwo and that the whereabout of the said Itum Kalu Okoroafor alias teacher is unknown . . .”

I think that reveals the volatile state of the community on that 22/09/03 and the way the Police worked/responded. It is very likely the killings would have been stopped, had the Police moved in, on time, to arrest the situation, when the first report of assault was made by Mrs Iroh Ukoha. They rather chose to be directed by the advice of the complainant, who told them (police) that her husband would do the job! The group had become the ‘Law’ makers and enforcers in the Community and the Police knew about it did nothing!

It is obvious that the said Iro Ukoha and his group of youths, including Appellant, in the circumstances, took ‘the law’ in their hands and handled the case of Agbaeze Kalu Ukariwo and others the way they wanted – killed him brutally. The meeting at the Palace of the Eze Kalu Kalu Ogbu had earlier decided to handle his case!

I cannot, therefore, disturb the findings of the trial court that the Appellant, in fact, with the 1st accused person, and other persons, caused the death of the said Agbaeze Kalu Ukariwo, on the said 22/09/03.

I resolve the issue against the Appellant and dismiss the appeal for lacking in merit.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the advantage of reading the draft judgment of my learned brother, I.G. MBABA, JCA in this appeal.

I only wish to add that the Appellant and his confederates deserve to be hanged for their dastardly act f murdering Agbaeze Kalu Ukariwo and Itum Okoroafor in such a gruesome manner so as to serve as a deterrent to others of their ilk who would dare take the Laws into their hands by unleashing such inhumanity and terror on innocent citizens of this country on the instigation of any person no matter how highly placed.

They deserve to die for their indiscretion n hearkening to the voice of the Enachioken (the Chief of Abriba) who unlashed them like barbarians on his perceived enemies in this 21st century. May God bless their souls!!

FREDERICK O. OHO, J.C.A.: I was opportuned to read in draft the judgment of my learned brother, Ita G. Mbaba, JCA just delivered. I agree with the reasoning and conclusions in the said judgment. I will also dismiss the Appeal. Appeal is accordingly dismissed.

Appearances

Anada Kalu Anaga Esq.For Appellant

AND

Chief Umeh Kalu (A.G. Abia State) with him D. Okwun – Kalu Esq SSC.For Respondent