DENSON SAMPSON ETUK & ORS v. THE STATE
(2018)LCN/12406(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of April, 2018
CA/C/164C/2016
RATIO
CRIMINAL LAW: THE ACT OF CONSPIRACY
“It is trite that the offence of conspiracy is difficult to prove. This is so because it is often contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted in agreement or in concert.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CRIMINAL LAW: OFFENCE OF MURDER
“On the offence of murder, to succeed on a charge of murder, the prosecution must establish that the deceased is dead, that the act or omission of the accused which caused the death of the deceased was unlawful and that the act or omission must have been intentional with knowledge that death or grievous bodily harm was its probable consequence. See ABOGEDE V. STATE (1996) 5 NWLR (Pt. 448) 270.
THE STATE V. JOHN OGBUBUNJO (2001) 3 SCM 119 at 123. JAMES OBUBA KALU V. STATE (1993) 3 NWLR (Pt. 279) 20 at 30.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CRIMINAL LAW: WHEN TWO PEOPLE ARE INVOVLED IN THE COMMISSION OF A CRIME
“It is trite that when two or more persons actively participate in the commission of a crime in the execution of a common intention, each of them would be liable for the offence and it does not matter who did what in the commission of the offence or offences. Consequently, each and everyone of them is responsible for the acts which eventually resulted or led to the death of the deceased. See EMEKA V. STATE (2001) 14 NWLR (Pt. 734) PG. 666. IDIOK V. STATE (2006) 12 NWLR (Pt. 993) Pg. 1. NWANKWOALA V. STATE (2006) 14 NWLR (Pt. 1000) Pg. 663.”PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CRIMINAL LAW: THE NEED FOR MEDICAL REPORT
“As I mentioned earlier, where the cause of death is obvious as in this case, medical report of cause of death becomes superfluous and a mere surplusage. In SHAFFU ATIKU & ORS V. THE STATE (2010) 9 NWLR (Pt. 1199) 241 at 273 the Court held thus: “Medical report on cause of death in all cases is not a sine qua non once the cause can easily be established from other pieces of evidence before the Court. It can clearly be dispensed with in this case against the Appellants because the cause of death has been sufficiently proved through the evidence of witnesses. Therefore, the Court is entitled in law, to accept and rely on evidence of witnesses, that where a person was attacked or beaten and he sustained injuries from which he died immediately thereafter. In proof of the cause of death of such a person, the trial Court could do without the need to call for a medical evidence on such death.” The foregoing is on all fours with the extant case. On the need to do without medical report on the cause of death where cause of death has been sufficiently proved through the evidence of eye witnesses, see also AZABADA V. THE STATE (2014) 48 NSCQR 531. GALADIMA V. THE STATE ELC (2017) 2327 Page 1. NNAMAH V. STATE (2005) 9 NWLR (Pt. 929) 147; ADAVA V. THE STATE (2006) 9 NWLR (Pt. 984) 152 and ALARAPE V. THE STATE (2001) 5 NSCQLR PG.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“A defence of alibi by an accused is a combined defence of lack of ‘actus reus’ and ‘mens rea’ i.e that the accused was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See GACHI V. STATE (1965) NMLR 333. ODIDIKA V. STATE (1977) 2 SC. 21 and UKWUNNENYI V. STATE (1989) 4 NWLR (Pt. 114) 131 at 144.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. DENSON SAMPSON ETUK
2. NWUNTAK EDET CHARLES
3. IDARA NDARAKE UDO
4. MARSHALL ASUQUO WILLIAM
5. IME SAMPSON ETOK
6. JOSEPH MOSES AKPAN
7. IBANGA ELIJAH EFFIONG
8. GODWIN SAMPSON ETOK
9. EMMANUEL NDARAKE AKPAN
10. ANIEFIOK SAMPSON ETOK Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):
The Ten Appellants in this criminal appeal were arraigned before the High Court Itu Judicial Division in Charge No. HIT/2C/2015 presided over by Edem Akpan, J, on a Ten Count Charge of Conspiracy, Murder, Assault Occasioning harm, breach of peace, False Representation and Malicious damage.
The prosecution called five witnesses while the defence called three witnesses. DW1 and DW2 testified in defence for themselves and on behalf of the other accused persons.
At the conclusion of hearing, the learned trial Judge in his judgment believed the case of the prosecution and disbelieved the case presented by the Appellants. He then convicted the Appellants on counts 1, 2, 3, 4, 6, 7, 8, 9 and 10, who being dissatisfied with that judgment have brought the present appeal. Learned counsel for the Appellants, Ada Okonkwo Esq distilled Seven issues for determination as follows:
1. Whether the offence of conspiracy to commit Murder or to commit any offence was proved against the Appellants.
2. Whether the burden placed on the prosecution in establishing the offence of Murder against the Appellants was satisfactorily discharged in this case.
3. Whether or not the defence of Alibi put forward by the 5th, 7th, 9th & 10th Appellants was adequately considered and rightly rejected by the trial Court.
4. Whether or not the learned trial Judge was right when he convicted the Appellants for maliciously damaging the properties of New Jerusalem Church when there was no evidence to establish such damage.
5. Whether or not the trial Judge was right in convicting and sentencing the Appellants for the offence of breach of peace when the offence was not proved before the Court.
6. Whether or not the trial Court was right when he convicted and sentenced the Appellants for assault occasioning harm on Samuel Essien Udo and Samuel Joshua Udoisang when the essential ingredients of the offence were not proved.
7. Whether or not the trial Judge was right in convicting and sentencing the Appellants of malicious damage of the properties of Samuel Joshua Udoisang and Samuel Essien Udo and the dwelling house of Pius Enyi Akpan when the offences were not proved at the trial.?
Learned counsel for the Respondent and Hon. Attorney General and Commissioner for Justice, Akwa Ibom State, Uwemedimo Nwoko Esq, adopted the seven issues as formulated by counsel for the Appellants.
Taking the issues, counsel for the Appellants, Ada Okonkwo Esq argued, on the charge of conspiracy, that there was no common intention by the Appellants to commit any offence. That the 5th, 7th, 9th and 10th Appellants were not present when what he described as fight took place. He submitted that common intention to commit a crime is an important ingredient of the offence of conspiracy. He described the story of the prosecution as inconsistent.
On the offence of Murder, counsel contended that the evidence of the prosecution witnesses at the trial Court were contradictory and clearly not the same. He further argued that there was no direct or circumstantial evidence linking the Appellants with the death of the deceased. Rather, he argued, there was clear evidence of hate by PW2 and his boys against the Appellants.
Counsel posited that the Appellants got information that the deceased fell down from the palm tree while harvesting palm fruits. He referred specifically to the evidence of the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th Appellants as well as exhibits 5, 6, 7, 8, 9, 10 and 12. He cited OLATINWO V. STATE (2013) 8 NWLR (Pt. 1355) 126 at 148; SAIDU V. THE STATE (1987) 4 SC. 41; NJOKU V. STATE (2013) 2 NWLR (Pt. 1339) 548 at 578. He referred to the testimony of PW5, the Medical Doctor and reiterated that the prosecution failed to prove the necessary intention for the commission of the offence of Murder.
On the 3rd issue, counsel submitted that the 5th, 7th, 9th and 10th Appellants raised the defence of Alibi which he argued the police did not investigate and therefore it was erroneous for the trial Judge to convict the 5th, 7th, 9th and 10th Appellants with the offence of Murder. He cited ADISA V. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 508. ADIGUN V. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (Pt. 53) 678; OZAKI V. STATE (1990) 1 NWLR (Pt. 124) PG. 92 at 116, among others.
On maliciously damaging the properties of New Jerusalem Church, counsel argued that there was no evidence by the prosecution to prove malicious damage. He specifically referred to the evidence of PW2 and the mention of one Kuseme Mbakara who called him on the telephone to inform him that the Appellants went into New Jerusalem Church and destroyed properties therein. He then submitted that failure by the prosecution to call the said Kuseme Mbakara was fatal to their case and the trial Judge should not have convicted the Appellants on the said count.
On the 6th & 7th issues, bothering on assault occasioning harm on Samuel Essien Udo and Samuel Joshua and malicious damage of the properties of Samuel Udoisang and Samuel Essien Udo, counsel posited that the evidence of the prosecution witnesses were not reliable in proof of the offences. That PW1 who was said to have been assaulted and his property destroyed was a victim of the alleged crime and therefore a tainted witness. He argued that it was not safe to convict on the evidence of a victim of crime or that of their relation.
Reacting to the foregoing, learned counsel for the Respondent Hon. Attorney General of Akwa Ibom State, U. Nwoko Esq, highlighted the evidence of the prosecution witnesses on the issue of conspiracy and contended that PW1-PW3 were eye witnesses and used the words ‘they’ continuously in their description of all the Appellants. He submitted that the offence of conspiracy is not capable of direct prove. The offence lies in agreement to do an unlawful act forbidden by law. He cited IBOJI V. THE STATE (2016) 255 LRCN 173. BOUWOR V. THE STATE (2016) 25 LRCN PG.1 at 14. ASUQUO V. THE STATE (2016) 257 LRCN 16 at 45 among others.
On the second issue bothering on the offence of Murder, counsel enumerated the ingredients of the offence of Murder and posited that all the ingredients were proved beyond reasonable doubt as the key witnesses were eye witnesses pointing specifically to the testimony of PW1, he reiterated how PW1 saw the 8th Appellants strike the deceased with spike on his head and when the deceased fell down; other Appellants then descended on him. Counsel cited SHAFFU ATIKU & ORS. V. THE STATE (supra) and argued further that the Appellants knew that death was the probable consequence of their act considering the nature of the weapon used, the fact that they struck the deceased on his head and the nature of the injuries that resulted.
He described as ridiculous the evidence by the Appellants that the deceased fell from the palm tree during the harvest. This is so, he submitted because none of the Appellants participated in the harvest of the palm fruits and wondered where the speculation emanated from.
On the defence of alibi put up by the 5th, 7th, 9th and 10th Appellants, counsel cited the case ofEZEUKO V. THE STATE (2016) 253 LRCN PG. 1 at 47, gave the meaning of alibi, highlighted the statements put up by the said Appellants which they labeled alibi and argued that the defence of the 5th, 7th, 9th & 10th Appellants was anything but alibi. For the defence of alibi to be worthy of investigation, he argued, it must be specific in terms of where the Appellant was and the people with him at that time. He described the defence of alibi put up by the said Appellants as an afterthought and not worthy of being investigated. He described it as not only vague, but a ploy completely devoid of material facts. He described the entire evidence of the said Appellants as having fallen short of the required standard expected to breathe life into the defence of alibi.
On the issue of Maliciously damaging New Jerusalem Church and the properties of Samuel Joshua Udoisang, Samuel Essien Udo and Pius Eni Akpan, counsel cited OLADEJO V. THE STATE (1994) 6 NWLR (Pt. 348) PG. 101 and posited that the evidence of the I.P.O PW4 was clear on what he saw and discovered in the course of his investigation, this he argued is admissible in law. Counsel argued further that from the circumstances of the case, it could be inferred that the Appellants destroyed the New Jerusalem Church owned by PW2 their sworn enemy. Same applied to the properties of the aforementioned people.
On assault occasioning harm on Samuel Essien Udo and Samuel Joshua Udoisang, he enumerated the essential elements of the offence as well as the testimonies of PW1 – PW3 and opined that the evidence of how the Appellants emerged from their point of road block and attacked their victims with machetes, axes and spike were so cogent and convincing and left no one in doubt as to the magnitude of harm and assault occasioned by the Appellants on their victims.
Looking at the issues formulated by counsel for the Appellants which counsel for the Respondent adopted, I will make use of the issues as formulated by counsel for the Appellants to ensure that nothing is left unattended to in his disagreement with the judgment of the trial Court.
Let me start with conspiracy to commit murder before looking into the other offences the Appellants were charged with.
It is trite that the offence of conspiracy is difficult to prove. This is so because it is often contrived in secrecy. Circumstantial evidence is therefore often used to point to the fact that the conspirators had agreed on the plan to commit the crime. There must therefore be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted in agreement or in concert.
PW2 in his testimony in Court stated as follows:
“When we were approaching the main road at the village, I sighted the accused persons blocking the major roads with logs of wood. At that point, I asked all the youths that were with me to return to me all their machetes which they obliged. I hid them in the bush and led them into the village. When we arrived at the main road, the accused persons who were led by the 1st accused person emerged from the bush and armed with offensive weapons such as machetes, axes, bottles, clubs etc. They all attacked us and gave us several injuries. The accused persons hit Samuel Joshua’s head with an axe and he sustained serious injury on his head.”
See page 338 lines 5-14 of the Record of appeal.
The argument by learned counsel for the Appellants that there was no common intention by the Appellants to commit any offence does not hold water.
‘It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time.’ See ABACHA V. THE STATE (2003) 3 ACLER PG. 344.
Once common intention is proved, it becomes immaterial that the persons did not personally carry out the act. See AHMED V. THE STATE (1998) 7 SC (Pt.1) PG. 105 at 106.
On the offence of murder, to succeed on a charge of murder, the prosecution must establish that the deceased is dead, that the act or omission of the accused which caused the death of the deceased was unlawful and that the act or omission must have been intentional with knowledge that death or grievous bodily harm was its probable consequence. See ABOGEDE V. STATE (1996) 5 NWLR (Pt. 448) 270.
THE STATE V. JOHN OGBUBUNJO (2001) 3 SCM 119 at 123. JAMES OBUBA KALU V. STATE (1993) 3 NWLR (Pt. 279) 20 at 30.
The attack on the judgment of the learned trial Judge by counsel for the Appellants herein, is basically as to the evaluation of the evidence adduced at the trial.
According to ONNOGHEN JSC (now CJN): “It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial that saw, heard, and assessed the witnesses and that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the view of the trial Court. However, the Court of Appeal can intervene where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing witnesses or where the findings of fact of the trial cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by evidence before the Court.” See EDJEKPO & ORS. V. OSIA & ORS (2007) 29 NSCQR 842 at 885.
Counsel for the Appellants took exception to the credibility accorded the testimonies of PW1, PW2 and PW3 on the ground that they were interested parties in the case and their evidence showed the nature of interest they had. These witnesses gave eye witness testimonies at the trial. PW1 in his testimony at the trial Court stated as follows:
‘I heard the voice shouted kill him, kill him and I hid in my partly destroyed house and noticed the 8th accused person how he hit Nse Okon Umoren on the head and he fell down. When he attempted to rise up the 7th accused also hit him, and all the accused persons hit him. The 8th accused person stated that they were of age to kill somebody. When they saw me at my premises, they pursued me very violently and I ran into uncompleted building and escaped.’
In ASUQUO V. THE STATE (2016) 257 LRCN 16 at 45 UZ Rt. 8, KEKERE EKUN JSC stated as follows:
‘The fact that PW2 and PW1 are the wife and brother of the deceased is no basis for contending that they are tainted witnesses. The onus was on the appellant to show that they had an interest to serve by the evidence they gave beyond speaking the truth in an effort to ensure that justice is done.”
Learned counsel for the Appellants also made heavy weather on what he termed contradictions on the testimonies of the witnesses for the prosecution. The said witnesses for the prosecution at the trial Court were in full accord in identifying the Appellants, locating the Appellants at the scene of the murder and other offences and ascribing the deliberate act which killed the deceased to the Appellants. For testimonies to be contradictory, they must relate to material points and are said to contradict when one account asserts the opposite of the other and both cannot be said to be simultaneously correct. They must create doubts in the mind of the Court as to the guilt of the accused. Discrepancies however are bound to arise in the truthful accounts of witnesses to the same event as these accord with the normal course of human events. See AWOPEJO V. STATE (2001) 8 NSCQLR 312. NNOLIM V. STATE (1993) 3 NWLR (Pt. 283) 569.
Rhodes-Vivour, JSC in EMMANUEL EGWUMI V. THE STATE (2013) 53 3 NSCQR PG. 463 had this to say:
‘A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other evidence says or contains some differences in details.’
PW4 the I.P.O although not an eye witness to the murder and the other offences charged, gave corroborative testimony of vital portions of the testimonies of PW1, PW2; and PW3.
I had earlier in this judgment reproduced part of the testimony of PW1 showing how the 7th & 8th Appellants hit the deceased on the head with a spike. In SHAFFU ATIKU & ORS V. THE STATE (supra) at pages 275-276 the Court stated as follows:
‘A determination as to whether an accused person knew or had reason to know that death was the probable consequence of his act depends on facts which should be disclosed by the evidence adduced by the prosecution. Such facts include:
a. The type or nature of the weapon used in the commission of the crime;
b. The part of the body struck or attacked;
c. The nature of the injuries inflicted on the deceased;
d. Physical and health state of both the accused person and the deceased at the material time;
e. If the deceased was treated at a hospital and died on admission, a report or certificate by the medical officer on the treatment and death of the deceased.’
From the nature of the weapon used by the Appellants, a weapon as dangerous as the spike, their choice of part of the deceased body to attack, the head. The severity of the injuries inflicted upon the deceased which caused his sudden death even before he got to the hospital, are pointers to the fact that the Appellants knew that death would be the probable consequence of their act.
The Appellants tried to come up with a defence that the deceased fell down from the palm tree during the harvest. None of the Appellants mentioned the name of the person who gave them this information. On the other hand, it is in evidence that none of the Appellants participated in the harvest and therefore did not come near the palm plantation. On the contrary PW1, PW2 and PW3 all gave evidence that the Appellants who they knew very well since they all come from the same community laid ambush by blocking the major roads with logs of wood. PW2 at page 355 lines 2-3 of the record of appeal stated as follows:
“When we were approaching the main road at the village, I sighted the accused persons blocking the major roads with logs of wood.”
PW3 during cross-examination stated thus:
” God forbid, the deceased has never climbed oil palm tree, so he did not fall from the oil palm tree, but was murdered by the accused persons.”
(See page 344 lines 33-34 of the Record of Appeal).
PW2 on his part and also under cross-examination stated as follows:
”..the deceased was not engaged by me to harvest palm fruit, he came alone to buy the oil palm fruit.” (See page 340 lines 37-38 of the Records).
Learned counsel for the Appellants made heavy weather also about the evidence of PW5 Dr. John Frank, a Medical Doctor who conducted Post Mortem examination on the body of the deceased Nse Okon on 4/5/15. Testifying under cross examination he stated as follows:
“The most conspicuous injury was on the back of the head of the deceased. The injury appeared to have been caused by a sharp object. If the victim falls on a very sharp object from a palm tree he could have such injury.”
(See page 352 of the Records).
It is clear from the above that this was in answer to a question put to him under cross examination. The Doctor did not say that the deceased fell from the palm tree. In answer to a question during cross examination, he said that if the deceased fell on a sharp object from a palm tree he could sustain such injury.
The Doctor was not a magician to have known about the defence put up by the Appellants specifically mentioning palm tree. The most relevant of the Doctor’s opinion was when he said:
“The injury appeared to have been caused by a sharp object.”
PW1, PW2 & PW3 all gave evidence to the effect that the Appellants were armed with weapons like machetes, axes, bottles, clubs etc.
PW2 at page 338 of the Records stated:
“… The accused persons who were led by this 1st accused person emerged from the bush armed with offensive weapons such as Machetes, Axes, bottles etc.”
PW1 at page 332 line 18 of the record of appeal mention spikes in addition to other weapons.
They were also armed with Machetes, Small Axes and spikes
These were all very sharp objects and each one could cause the same injury described by the Medical Doctor PW5. There was therefore nothing magical in his echoing the words ‘palm tree’. PW1 who was an eye witness had clearly stated how the 8th Appellant hit the deceased with the spike on his head, and when he tried to get up, the 7th Appellant hit him again. All the other Appellants also hit him.
It is trite that where the cause of death is obvious, medical report becomes superflux, surplusage and unnecessary. The defence put up by the Appellants that the deceased fell from a palm tree is akin to tale by Moon light as there was no concrete, convincing and compelling evidence to believe that story. It is unsubstantiated and the learned trial Judge was well within the law to have rejected same.
The Investigating Police Officer (IPO) testified as PW4, he stated as follows:
‘During the course of investigation, I discovered that on the same date 19th February, 2014, the accused persons and others at large were attacking those who returned from harvesting the village oil palm fruit. In the process, one Nse Okon, male of Use Ikot Amama village was attacked by the accused persons. They were armed with machetes, sticks, spike and in the cause of beating Nse Okon, the 8th accused person used a spike on his head and caused him a deep injury which resulted in his death.
‘… They all volunteered statements which I recorded… Thereafter, I wrote the Investigating Police report to the Commissioner of Police.’
As I mentioned earlier, where the cause of death is obvious as in this case, medical report of cause of death becomes superfluous and a mere surplusage.
In SHAFFU ATIKU & ORS V. THE STATE (2010) 9 NWLR (Pt. 1199) 241 at 273 the Court held thus:
“Medical report on cause of death in all cases is not a sine qua non once the cause can easily be established from other pieces of evidence before the Court. It can clearly be dispensed with in this case against the Appellants because the cause of death has been sufficiently proved through the evidence of witnesses. Therefore, the Court is entitled in law, to accept and rely on evidence of witnesses, that where a person was attacked or beaten and he sustained injuries from which he died immediately thereafter. In proof of the cause of death of such a person, the trial Court could do without the need to call for a medical evidence on such death.”
The foregoing is on all fours with the extant case. On the need to do without medical report on the cause of death where cause of death has been sufficiently proved through the evidence of eye witnesses, see also AZABADA V. THE STATE (2014) 48 NSCQR 531. GALADIMA V. THE STATE ELC (2017) 2327 Page 1. NNAMAH V. STATE (2005) 9 NWLR (Pt. 929) 147; ADAVA V. THE STATE (2006) 9 NWLR (Pt. 984) 152 and ALARAPE V. THE STATE (2001) 5 NSCQLR PG.
On the defence of alibi raised by the 5th, 7th, 9th and 10th Appellants, it may be pertinent to reproduce the statements of the said appellants which they described as alibi. In Exhibit 9 the Extra Judicial statement of the 5th Appellant (5th accused at the trial Court) he stated as follows:
“… But in January, 2014, I left the village for Lagos because of the death of my sister and came back sometime in February, 2014. It was when I came back that I was told that on 19/02/2014, Mbakara Sampson Willie gathered some boys and harvested the village palm fruits.”
The 7th Appellant in his statement, Exhibit 11 at page 74 of the Record of appeal stated as follows:
“… That I am a native of Nsai Use Ikot Amama village in Ibiono Ibom Local Government Area. I am an apprentice in welding work at Oko Ita Junction, Ibiono Ibom LGA…It is not true that I joined in killing him if I am taking (sic) before my master at Oko Ita, he will confirm that I was at my duty post and not in the village.”
The 9th Appellant in his statement admitted as Exhibit 13 stated as follows:
“… I am a native of Nsai Use Ikot Amama village in Ibiono Ibom LGA and an apprentice on furniture works. On 09/02/2014, I was at No. 2 Afaha Ube Street, off Ikot Ekpene Road, Uyo where I lived and my furniture workshop is at No. 9 Nelson Mandela Road, Uyo. It was on 19/02/2014 in the evening as I closed from work that I travelled home for some foodstuff. When I got home, it was my sister Grace Ndarake Akpan, who told me that the complainant had taken some people to harvest the village palm fruits and along the line one of them fell down and died.”
The 10th Appellant in his statement admitted in evidence as Exhibit 14 stated thus:
But on that 19/2/2014, I was not in the village, but rather I was in my uncle’s place in Idu Uruan village in Uruan LGA. My uncle’s name is Edet Nse Akpan. He is a sawyer.
On the defence of alibi put forward by the 5th Appellant already reproduced, a look at the said statement reveals how vague that defence is. The 5th Appellant failed to state the area of Lagos where he was. He never stated the date in February when he came back. The offence was committed on the 19th of February, 2014, a defence of alibi which simply stated that the 5th Appellant came back ‘sometime’ in February, is no defence at all. For a defence of alibi to be worthy of investigation, it should be precise and specific in terms of the place the accused was and the person or persons he was with and possibly what he was doing there at the material time. The police should not be involved on a wild goose chase for the whereabouts of an accused at the time the crime was committed. See OCHEMAJE V. STATE (2008) 15 NWLR (Pt. 1109) Pg. 63.
n the alibi presented by the 7th Appellant, it is nothing but making a mockery of the defence of alibi. The 7th Appellant neither stated where he was, the time or the person or persons who were with him nor did he supply the name of any body.
On the other hand, PW1 in his evidence at page 333 lines 15-16 of the records stated thus:
“I heard the voice shouted (sic) kill him, kill him, and I hid in my partly destroyed house and noticed the 8th accused person how he hit Nse Okon Umoren in the head and he fell down. When he attempted to rise up, the 7th accused also hit him and all the accused persons hit him.” (Underlining mine for emphasis).
The said 7th Appellant was therefore clearly identified by PW1. It is trite that once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstance. See ALIYU V. STATE (2013) 226 LRCN (Pt. 1) 123 at 149.
On the defence of alibi put up by the 9th Appellant, again it is another caricature of the defence of alibi. I say so because the 9th Appellant in Exhibit 13 never mentioned the name of a single person who was with him or who saw him on that fateful day. There can be no defence of alibi without mentioning a single person who was with the accused/Appellant at the time the offence was committed. The question then remains, who then should the police ask if the Appellant was at the place he mentioned at the time the offence was committed.
The 9th Appellant’s failure to mention anyone whose presence at his residence or workshop at the time material to the crime could be ascertained and authenticated has rendered impotent his defence of alibi. Exhibit 13 therefore failed woefully to meet the required test of a proper defence of alibi.
The defence of alibi as presented by the 10th Appellant is on Exhibit 14. The PW1 in his evidence at page 332 lines 38-39 stated thus:
the 10th accused person used the small axe to stab my head.
It should be noted that the Appellants and the victims come from the same community and therefore knew each other very well. PW1’s evidence was direct, positive and unequivocal. It is trite that where the prosecution supplies evidence fixing the accused/Appellant to the scene of crime, the defence of alibi is extinguished.
‘If the prosecution adduces sufficient and acceptable evidence to fix the accused person to the scene of crime at the material time, his alibi is thereby logically and physically demolished.’See OCHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) pg. 63 at 67.
A defence of alibi by an accused is a combined defence of lack of ‘actus reus’ and ‘mens rea’ i.e that the accused was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See GACHI V. STATE (1965) NMLR 333. ODIDIKA V. STATE (1977) 2 SC. 21 and UKWUNNENYI V. STATE (1989) 4 NWLR (Pt. 114) 131 at 144.
The evidence led by the prosecution was that the 5th, 7th, 9th & 10th Appellants on the 19th of February in company of the 1st, 2nd, 3rd, 4th, 6th and 8th Appellants murdered Nse Okon in addition to the other offences charged. The prosecution was therefore specific as to the date of the commission of the crime. The evidence of the victims PW1, PW2 & PW3 were detailed, direct and positive. PW1-PW3 knew the Appellants very well before the date of the incident.
Having led evidence fixing the Appellants with the time and date of the crime at the scene, the evidential burden of leading evidence on the Alibi on these points at least sufficient to cast doubt in the mind of the trial Judge was on the Appellants. But in contrast, although the 5th, 7th, 9th & 10th Appellants in their statements tried to put up what they described as alibi, their defence was worthless as each of them failed to meet the basic requirements of the defence of alibi. Where an accused sets up an alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime. See YANOR V. STATE (1965) 1 ALL NLR. 193. SALAMI V. STATE (1988) 3 NWLR (Pt. 85) 670 at 677.
I am on the same page with the learned trial Judge on his findings on the defence of alibi put up by counsel for the Appellants.
Issues 4 and 7 bother on malicious damage of New Jerusalem Church, as well as the properties of Samuel Joshua Udoisang, Samuel Essien Udo and Pius Eni Akpan. I therefore intend to take them together. It is on record that the Appellants opposed the harvesting of palm fruits from the village palm plot.
The harvest was eventually headed by PW2 Eteidung Mbakara Sampson Willie. Incidentally, the same PW2 was also the founder of New Jerusalem Church destroyed by the Appellants. The New Jerusalem Church was destroyed the very day of the incident. (See page 357 of the Records). The I.P.O, PW4 in his testimony stated as follows:
‘When I arrived at the village, I was taken to the New Jerusalem Church by the witnesses. I witnessed the destruction that had been done on the property. Plastic chairs, benches, flower pots and tables together with the church walls were damaged. I contacted a paid photographer with a digital camera and he took pictures of the damaged items and attached to the case file.'(See page 346 lines 26-30 of the Records).
It is therefore obvious that having openly opposed PW2 both as village head and in respect of harvesting of the village palm fruits and considering that the said New Jerusalem Church was founded by the same PW2 and the destruction of the said Church came the same day the Appellants laid ambush on their victims, racked havoc on the community killed Nse Okon, macheted and assaulted their victims. It is clear that even though there were no eye witnesses, circumstantial evidence in this case points accurately, positively and directly to the Appellants.
On malicious damage to the properties of Samuel Joshua Udoisang, Samuel Essien Udo, Pius Enyi Akpan, PW1 Samuel Joshua Udoisang in his testimony in Court stated as follows:
‘When they saw me at my premises, they pursued me very violently and I ran to an uncompleted building and escaped. They went to destroy my house the more. The zinc roof of my house were destroyed by the accused person.’
(See page 333 of the Record of Appeal).
Again, PW3, Samuel Essien Udo in his testimony stated his own unpleasant experience with the Appellants. Hear him: ‘When the police left, we returned from the palace of PW2 to our various houses. I had returned to my house. But the accused persons who were led by the 8th accused came to my house and attacked me, destroyed my goods (trading articles like yams, groundnut oil, ceiling fans and other items) in my trading store.’
PW4, the I.P.O. tendered photographs of damaged properties taken in the course of his investigation, they were tendered as Exhibits 3, 3A – 3F respectively. PW1 and PW3 gave evidence as eye witnesses. They were positive and clear concerning the damage done to the properties of Samuel Joshua Udoisng and Samuel Essien Udo.
On assault occasioning harm on Samuel Essien Udo and Samuel Joshua Udoisang, some of the ingredients of the offence are:
1. That there was a strike, touch or application of any kind of force by the accused person on another person.
2. That harm was caused to that person.
3. That the strike, touch or application of force was not authorized by law.
PW1 Samuel Joshua Udoisang gave a detailed account of how he was attacked brutally.
‘The accused persons emerged from their point of road block to attack us with the machete, axes and the spike that they were armed with. The 8th accused used the spike to hit the shoulder of the village head. The 10th accused used the small axe to stab my head.’ (See page 332 of the Records).
Continuing, PW1 stated:
‘… The village head used his camera phone to take picture of my wounded head.’
Under cross examination, PW1 stated:
‘At this time they had already cut my head with the axe…’ (See page 385 of the Records).
Apart from PW1, PW3 Samuel Essien Udo also narrated his own ordeal in the hands of the Appellants.
‘When we got to the road, the accused persons attacked us and assaulted me mercilessly…’ (See page 343 of the Records).
The police tendered Exhibits 1 and 2 which were photographs showing the wounded head of PW1 Samuel Joshua Udoisang.
Tying the aforesaid testimonies to the ingredients of the offence of assault occasioning harm, the learned trial Judge was well within the law to have believed the version of the prosecution generally on all the counts brought against the Appellants.
It is trite that when two or more persons actively participate in the commission of a crime in the execution of a common intention, each of them would be liable for the offence and it does not matter who did what in the commission of the offence or offences. Consequently, each and everyone of them is responsible for the acts which eventually resulted or led to the death of the deceased. See EMEKA V. STATE (2001) 14 NWLR (Pt. 734) PG. 666. IDIOK V. STATE (2006) 12 NWLR (Pt. 993) Pg. 1. NWANKWOALA V. STATE (2006) 14 NWLR (Pt. 1000) Pg. 663.
In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both sides and reach a conclusion on which side he believed. He did so extensively in relation to all the counts on the information and particularly in relation to the offence of murder at page 383 of the record of appeal where he found, inter alia, as follows:
‘It has been the unanimous chorus of the defence both in the extra judicial statements made to the police and the oral testimonies in Court that they were told that the deceased fell down from oil palm tree during the harvest. This piece of evidence sounds very ridiculous because there is no foundation to sustain it. None of the accused persons had participated in the harvest and there is no trace of any kind to link the evidence of falling from the oil palm tree with the deceased. That piece of evidence demonstrates the height of speculation on the part of the defence, and I do not believe it. Rather, evidence of the prosecution, which states how the accused persons attacked the deceased, is more plausible and reasonable and I believe it. I have found no material contradiction in the evidence of the witnesses to the prosecution as the defence attempted to suggest. Those flimsy variables in the evidence of the prosecution witnesses have rather sustained the evidence by making it look very credible and natural.’
The above is a clear and succinct finding of fact which this Court has no reason or justification to distort or reverse.
In the same manner, the learned trial Judge made impeccable findings on the matter of Conspiracy, Assault Occasioning harm, Malicious damage and the defence of Alibi. After reviewing and evaluating the evidence, he held that the evidence of eye witnesses and the circumstantial evidence were enough to ground the charges against all the Appellants.
In the premise, all the issues are resolved against all the Appellants in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed in its entirety. The judgment of Edem Akpan, J, of the Itu Judicial Division of the High Court of Akwa Ibom State in Charge No. HIT/2C/2015 delivered on the 29th of February, 2016, the conviction and sentencing of all the Appellants including the death sentence by hanging on all the Appellants are hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I was availed the benefit of reading in draft the lead judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA, and I totally endorse the reasoning and conclusion therein. I too, do hold that the appeal is lacking in merit and will dismiss it.
The duty of prosecution in a criminal trial is to prove its case beyond reasonable doubt. See LADO VS. THE STATE (1999) 9 NWLR (PT. 619) 369; NAMSOH VS. THE STATE (1993) 5 NWLR (PT. 292) 129; OBIAKOR & ANOR. VS. THE STATE (2002) 10 NWLR (PT. 776) 612; OBIDIKE VS. THE STATE (2014) 10 NWL R (PT. 1414) 53.
In a charge of murder the cause of death of the deceased must be established unequivocally and the onus of proof is on the prosecution. It is the law that the death of the victim must be caused by the act of the accused. See OGUNTOLU VS. THE STATE (1996) 2 NWLR (PT. 432) 503. This means that there should be evidence of some positive act or negative omission of the Appellant which caused injury to the deceased and that the death of the deceased was the direct result of that injury or those injuries. See ONAH VS. THE STATE (1985) 3 NWLR (PT. 12) 236.
The responsibility of finding out whether the essential ingredients of the offence have been proved is that of the trial Court. Once the trial Court has unquestionably and conscientiously through the evaluation of the evidence before it resolved the issue of proof of guilt of the Appellant, it would require some extra efforts of the Appellant to justify that his conviction and sentence were without merit.
In the instant case the trial Court had found that the Appellants attacked the deceased with spikes, etc and the deceased died of the injuries therefrom before reaching hospital. A look at the evidence before the lower Court shows that the findings of the lower Court were not perverse.
The prosecution did discharge its burden of proving the charge beyond reasonable doubt against the Appellants. It is trite law that a person is taken to intend the natural and probable consequences of his act. See EDAMINE VS. THE STATE (1996) 3 NWLR (PT. 438) 530; NJOKU & ORS. VS. THE STATE (2013) 2 NWLR (PT. 1339) 548; THE STATE VS. JOHN (2013) LPELR-20590 (SC). In the instant case the use of spikes to hit the deceased on the head is intended to end the life of the deceased.
My learned brother in the lead judgment gave an in-depth reasoning for the conclusion to dismiss the appeal. I adopt these reasons as mine and for which I hold that this appeal is lacking in merit. It is accordingly dismissed by me. I also affirm the conviction and sentences of the Appellants as handed down by the lower Court.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the reasoning and conclusion therein.
Proof of a criminal allegation is achieved once sufficient evidence is adduced establishing the essential ingredients thereof beyond reasonable doubts. This was done by the Respondent in this instance.
For the more detailed reasoning contained in the lead judgment I equally find no merit in the appeal and I accordingly dismiss it.
Appearances:
Ada Okonkwo Esq.For Appellant(s)
Uwemedimo Nwoko Esq., Attorney-General of Akwa Ibom State, with him G. Udom Esq.
For Respondent(s)
