SABINA CHIKAODI MADU VS THE STATE

SABINA CHIKAODI MADU VS THE STATE

(2012) LCN/4004(SC)

In the Supreme Court of Nigeria

Friday, June 1, 2012

 

Case Number: SC.12/2009

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT

OLUFUNLOLA OYELOLA ADEKEYE JUSTICE, SUPREME COURT

MARY UKAEGO PETER-ODILI JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT

 

APPELLANT:

SABINA CHIKAODI MADU

 

RESPONDENTS:

THE STATE

 

RATIO:

SUMMARY OF FACTS:

The appeal was brought to the Supreme Court against the decision of the Court of Appeal, affirming the conviction and sentence of the Appellant to death for the murder of the deceased Nnenna Nwosu by the High Court. The appeal was dismissed. The decisions of the lower courts were affirmed.

ISSUES OF DETERMINATION:

Whether the lower court was right when it upheld the conviction and sentence of the Appellant by the trial High Court, when the arraignment of the Appellant did not comply with the mandatory provisions of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 and Section 215 of the Criminal Procedure Laws of Eastern Nigeria, 1963 as applicable to Abia State.2. Whether the Appellant was given fair hearing.

THE DOCTRINE OF “LAST SEEN”:

“The law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead.” Per Olu Ariwoola, JSC

BURDEN OF PROOF ON THE PROSECUTION:

“In a charge of murder, the burden is on the prosecution to prove that the deceased died, that the death was caused by the accused; that the accused intended to either kill the victim or grievously harm him.” Per Olu Ariwoola, JSC

STATUTES REFERRED TO:

NONE

 

OLU ARIWOOLA, J.S.C. (Delivering the Judgment by the Court): This appeal is against the decision of the Court of Appeal, Port Harcourt Division delivered on the 30th November, 2006 affirming the conviction and sentence of the Appellant to death for the murder of the deceased Nnenna Nwosu by the Abia State High Court presided over by Uzokwe, J.

The deceased Nnenna was discovered dead inside the septic tank in the premises where the Appellant and the 2nd Accused who is now deceased resided at No.17 1st Powerline. The deceased Nnenna was living with her family at No.16 Power line Abayi Ariaria.

The Appellant was charged with the murder of Nnenna Nwosu as follows:

‘That you Sabina Madu (f) on the 30th day of August, 2002 at No. 17 First Powerline Aba in the Osisioma Ngwa Magisterial District, did conspire with others now at large to commit felony to wit: Murder and thereby committed an offence punishable under Section 324 of the Criminal Code Cap.30 Vol. II Laws of Eastern Nigeria 1963 as applicable in Abia State.’

Count Two:

‘That you Sabina Madu (f) and others now at large on the same date and place and in the aforesaid Magisterial District, did kill one Nnenna Nwosu (f) and threw the corpse into a soak-away pit and thereby committed an offence punishable under Section 319 (1) of the Criminal Code Cap.30 Vol.11, Laws of Eastern Nigeria 1963 as applicable in Abia State.’

The case proceeded to trial. At the end, the court convicted the Appellant and the deceased, 2nd Accused person for the murder of Nnenna Nwosu and consequently sentenced them to death.

The Appellant was dissatisfied with the judgment of the trial court hence appealed to the court below. The 2nd convict had died shortly after he was convicted and sentenced.

The Court of Appeal, Port Harcourt Division after hearing the arguments of Counsel dismissed the appeal and affirmed the conviction and sentence of the Appellant to death by the trial court.

The Appellants dissatisfaction led to the further appeal to this court which was initiated with the Notice of Appeal dated 16/12/2006 but filed on 26/01/2007. The said Notice of Appeal has seven (7) Grounds of Appeal.

Parties filed and exchanged their briefs of arguments.

When the appeal came up for hearing, Mr. Kemasuode Wodu of Counsel to the appellant referred to the appellants brief of argument dated 26/04/2010 but filed on 8/5/2010. Having been filed out of time, sequel to an order of this court duly sought and obtained, the said brief of argument was deemed properly filed and served on 03/11/2010. Learned Counsel adopted and relied on the said brief of argument as their submissions in urging the court to allow the appeal to discharge and acquit the appellant.

Chief Umeh Kalu, the Hon. Attorney General of Abia State, argued the appeal for the State. He referred to the Respondents brief of argument filed on 12/10/2011 but deemed as properly filed and served on 13/10/2011. He referred to the four issues formulated by the Respondent from the Grounds of Appeal filed by the Appellant. He adopted and relied on the said Respondents brief of argument to urge the court to uphold the concurrent decisions of the two courts below in affirming the conviction and sentence of the appellant and dismiss the appeal.

In her brief of argument, the appellant formulated the following five (5) Issues for determination.

Issues of Determination:

‘1.    Whether the lower court was right when it upheld the conviction and sentence of the Appellant by the trial High Court, when the arraignment of the Appellant did not comply with the mandatory provisions of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 and Section 215 of the Criminal Procedure Laws of Eastern Nigeria, 1963 as applicable to Abia State. (Distilled from Grounds 1 & 2)

2. Whether the lower court was right when it relied on the evidence of the PW1, PW2, DW1 and DW2 in affirming the judgment of the trial court convicting and sentencing the Appellant to death for the alleged murder of the deceased. (Distilled from Ground

3. Whether the Appellant was given fair hearing. (Distilled from Ground 4).

4.Whether the lower court was right when in affirming the conviction and sentence of the Appellant to death by the trial court, it relied on the alleged piece of evidence that the Appellant was the person with whom the deceased was last seen alive. (Distilled from Ground 5)

5. Whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the Appellant to death for the Murder of the deceased Nnenna Nwosu. (Distilled from Grounds 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15).

The Appellant in her brief of argument argued the above Issues seriatim.

Issue No.l

The appellant referred to the record of the trial court on the day she was arraigned and her plea taken on 2/3/2004. She contended that the record did not indicate or state the language in which the charge was read and explained to the appellant. Reference was made to Section 215 of the Criminal Procedure Laws of Eastern Nigeria, 1963 as applicable to Abia State. It was contended that before there could be a valid arraignment of an accused person, the following conditions must be met:

  1. The accused person must be placed before the court unfettered, unless the court otherwise orders.
  2. The charge or information must be read over and explained to the accused person to the satisfaction of the court and thereafter.
  3. The accused person must be instantly called upon to plead to the said charge.

He relied on the following cases; Udeh Vs. State (1999) 7 NWLR (Pt.609) 1 at 20 & 22 Ogunye Vs State (1999) 5 NWLR (Pt.604) 548 at 565, Ideomudia Vs State (1999) 7 NWLR (Pt.610) 202 at 214.

Learned appellants counsel referred to Section 36 (6) of the 1999 Constitution and submitted that the trial of the appellant did not comply with the requirement of the Law hence it was in breach of the appellants right to fair hearing rendering the proceedings null and void.

He cited several cases, including Ogunye Vs State (supra) Sunday Kajubo Vs State (1988) NWLR (Pt.73) 721 at 732, Ere Kanure Vs State (1993) 5 NWLR (Pt.294) 385, Anyakora Vs Obiakor (2005) 5 NWLR Pt.919) 507 at 532-533.

Learned Counsel submitted that the trial court did not comply with the mandatory requirement of the constitution. He contended that it can be reasonably presumed that the charge was read and interpreted to the appellant in English Language being the official language of the court, but not her native language which is Igbo. He submitted that failure to record the language in which the charge was read and interpreted has vitiated the entire trial and conviction of the appellant by the trial court.

Learned counsel further submitted that the appellant was not validly arraigned before the trial court hence the appellants trial, conviction and sentence by the trial court are null and void. He urged the court to hold that the court below ought not to have affirmed the judgment of the trial court. He urged the court to resolve the issue in favour of the appellant.

Issue No.2

The appellant contended that the court below, in affirming the judgment of the trial court relied on the evidence of PW1, PW2, DW1 and DW2. He relied on the 12 species of evidence. The appellant contended further that all the said 12 species of evidence except the 9th and 10th species were based on the evidence of the said PW1, PW2, DW1 and DW2. The 9th and 10th species of evidence dealt with the evidence of the Medical Doctor (DW4) as to the cause of death of the deceased.

The appellant referred to the testimony of the PW1, PW2, DW1 and DW2 and contended that having testified in their native Igbo language, there is nothing on record to show that the testimony was interpreted to the trial court in the language of the court.

Learned counsel submitted that the evidence of those witnesses was not admissible before the trial court hence the trial court was wrong to have admitted the evidence and relied on it to convict the appellant. He urged the court to expunge the evidence of the witnesses which were not admissible but admitted wrongly and relied on by the trial court and the court below. He cited Owonyin Vs. Omotosho (1961) 2 SCNLR 57 at 61, Shanu V. AFribank (Nig Plc (2002) 17 NWLR (Pt….) 221 at Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 561 at 577-578.

Learned counsel submitted that the effect of expunging or excluding the aforesaid piece of evidence from the record is that there would no longer be any basis or foundation for the decision of the court, below in affirming the conviction and sentence of the appellant to death by the trial court. He urged the court to resolve this Issue No.2 in favour of the appellant.

Issue No.3

This is whether the Appellant was given fair hearing. Learned counsel to the appellant submitted that it is mandatory for any person charged with a criminal offence to be heard in his defence before he is convicted for the commission of any such offence. He referred to the principle of Audi alteram partem, and submitted that whenever there is any breach of that principle, the entire proceedings wherein the breach occurred are rendered null and void. He cited, Okafor Vs. A.G. Anambra State (1991) 6 NWLR (Pt.200) 649 at 678.

Learned counsel submitted that the appellants right to fair hearing was grossly violated in the proceedings before the trial court as she was not heard in her defence. He referred to the evidence on record where the appellant testified as DW1 and spoke in her native language of Igbo but her testimony was not interpreted to the court in the language of court. He urged the court to hold that the testimony of the Appellant before the trial court was not interpreted to the court which he said meant that the appellant was not heard in her defence. may have ascribed to the Appellant as her evidence before the court at best can only be matters of conjecture or speculation and courts of law do not embark on speculation.

He relied on ACB Plc Vs N.T.S (Nig) Ltd (2007) 1 NWLR (Pt.1016) 596 at 628. He urged the court to hold that in the peculiar circumstances of this case, the trial court breached the Appellants fundamental human right to fair hearing when it went on to convict and sentence the appellant to death for alleged murder without hearing from the appellant.

Learned counsel submitted that the consequence of such a finding by the court is that the entire trial, conviction and sentence of the appellant by the trial court is null and void. He went further to say that if the appellants trial, conviction and sentence to death by the trial court is null and void, then the court below could not have rightly affirmed or upheld the appellants conviction and sentence. He urged the court to resolve Issue No.3 in favour of the appellant.

Issue No.4

This is whether the lower court was right when in affirming the conviction and sentence of the appellant to death by the trial court, it relied on the alleged piece of evidence that the appellant was the person with whom the deceased was last seen alive.

The appellant referred to the findings of the court below in upholding the conviction and sentence of the appellant with the reliance on the alleged fact that the appellant was the last person whom the deceased was seen alive and the principle that that person is the one that killed the deceased. Reference was made to several decided cases where this court had relied on the above principle to uphold conviction and sentence such as; Nwaeze Vs State (1996) 2 NWLR (Pt.428) 1 at 16, Igho Vs The State (1978) NSCC Vol.11 166 at 108, Emeka Vs State (2001) 14 NWLR (Pt.734) 666 at 685, lgabele Vs State (2006) 6 NWLR (Pt.975) 100 at 121.

Learned counsel contended that the above principle is not rooted in law but in common sense. He submitted that the upholding of the conviction and sentence of the appellant by the court below in reliance on the principle that she was the last with whom the deceased was seen alive, constitute a grave violation of the appellants fundamental human right to the presumption of innocence preserved in Section 36 (5) of the 1999 Constitution. He cited; Ubanatu Vs COP (1999) 7 NWLR (Pt.611) 512 at 522. He submitted further that a breach of that presumption completely nullifies the proceedings in which the breach occurred. He relied on Adeyemi Vs State (1991) 6 NWLR (Pt.195) 1 at 29.

Learned counsel contended that if an accused person is deemed to be innocent until proven guilty, such an accused person cannot be made to prove his innocence by offering some explanations simply because the deceased was last seen alive in his company and where he fails to offer any acceptable explanation then he would be presumed to be the killer of the deceased.

Learned counsel contended further that the law has always been static that it is the prosecution that must prove the guilt of the accused person beyond reasonable doubt and not the other way round, that is, the Accused person proving his innocence. He cited Ahmed Vs State (1999) 7 NWLR (Pt.612) 641 at 669, Section 138 (1) & (2) Evidence Act.

Learned counsel contended that if at the close of the case of the prosecution, the only evidence adduced by the prosecution is that the deceased was last seen alive in company of the Accused person, there is obviously no case made out against an accused person to require him to enter into his defence. He submitted that the court ought to accordingly discharge the accused person under Section 286 of the Criminal Procedure Law.

Learned counsel referred to couple of decisions of this court where the principle of person with whom the deceased was last seen alive being the one to explain what killed the deceased. And some cases where the court had held otherwise. He contended that this court has the power to overrule itself on its decisions previously held and now hold that it is not a correct law to hold the person with whom a deceased was last seen alive, responsible for the death of the deceased or at least an explanation of what killed him.

He urged the court to resolve the issue in favour of the appellant and accordingly overrule all the decisions of this court where the said principle was applied, that the person in whose company a deceased was last seen alive is the person who killed the deceased.

Issues No.5

This is whether the prosecution proved its case against the appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the appellant to death for the murder of the deceased Nnenna Nwosu.

Learned counsel submitted that for an accused person to be convicted for the commission of any offence, the prosecution must prove the guilt of the Accused beyond reasonable doubt. He referred to Section 138 of the Evidence Act and Ajisogun Vs State (1998) 13 NWLR (Pt.581) 230 at 256-260.

He submitted that where there is any doubt in the case of the prosecution, such doubt must be resolved in favour of the Accused person. He relied on Onyejiaka Vs State (197) 11 NWLR (Pt.530) 645 at 651.

Learned counsel contended that in the case in hand, the prosecution which relied on circumstantial evidence woefully failed to prove its case against the appellant, who was the 1st Accused person in the trial court, beyond reasonable doubt.

Reference was made to the record of proceedings at several pages for the facts relied on by the prosecution, the findings of the trial court and the reason why the court below upheld the decision of the trial court and affirmed the conviction and sentence of the appellant.

Learned counsel contended that the appellant, by her testimony under cross examination denied knowledge of the pregnancy of the deceased. That there was no other evidence before the trial court that the appellant knew that the deceased was pregnant or that the appellant carried out abortion on her or advised her to carry out abortion.

Learned counsel submitted that in view of the fact that the appellant could not be linked with the commission of abortion on the deceased which allegedly led to her death, it was wrong for the trial court and the court below to have held that it was the appellant that caused the death of the deceased by abortion.

He referred to the findings of the trial court and urged the court to hold that there was no evidence before the trial court to justify such finding that the appellant was responsible for the alleged abortion or murder of the deceased.

It was contended that the circumstantial evidence relied upon by the prosecution does not exclude the possibility of the alleged abortion to have been committed by someone else such as a quack doctor who may have unsuccessfully carried out an abortion of the alleged pregnancy of the deceased.

Learned counsel submitted that the circumstantial evidence to be sufficient to find the conviction of an accused person, it must exclude the possibility of any other person committing the offence in question. He relied on; Anekwe Vs. The State (1976) NSCC Vol.10 page 558 at 562.

Learned Counsel referred to the evidence of PW4 which attributed the cause of the death of the deceased to laceration in the womb which could have been caused by a sharp object application from a long or short sharp object. He submitted that where the prosecution in a case of murder with an object such as machete or other sharp objects, relies on circumstantial evidence, for such circumstantial evidence to lead to a conviction for murder, the accused person must have been seen with the said object, possibly bloodstained shortly after the commission of the offence or same recovered from the said accused person. He cited, State Vs Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 at 591 Ukorah Vs The State (1977) NSCC Vol.11 218/223 Okafor Vs State (1990) 1 NWLR (Pt.128) 614 at 626.

It was contended that in this case there was no evidence before the trial court to the effect that the appellant was seen with a sharp object shortly after the death of the deceased or any sharp object recovered from the appellants house. He submitted that the conviction and sentence of the appellant to death by the trial court and the upholding of same by the court below are against the weight of evidence adduced before the court.

The appellant further contended that other areas where the prosecution left with grave doubts exclude the evidence of the date and time of death of the deceased. He submitted that this court had had cause to set aside the conviction of an accused person for murder, inter alia, on account of failure of the prosecution to prove the time of the death of the deceased in question. Cited Aigbadion Vs. State (2000) 7 NWLR (Pt.666) 686 701-702.

He submitted that where an accused person pleads an alibi and the alibi was not investigated by the prosecution, the court is bound to discharge and acquit such an accused person. He cited Mustapha Vs. State (2007) 12 NWLR (Pt.1049) 637 at 658, Isiekwe Vs. State (1999) 9 NWLR (Pt.617) 43 at 65.

Learned counsel urged the court to hold that the lower court erred when it held that the appellant caused the death of the deceased and affirmed the appellants conviction and sentence to death by the trial court when the prosecution failed to prove its case beyond reasonable doubt.

He urged the court to resolve Issue No.5 in favour of the appellant and thereby allow the appeal, set aside the judgment of the trial court which convicted and sentenced the appellant to death for the murder of the deceased Nnenna Nwosu and the affirmation of same by the court below.

The Respondent in its brief of argument also formulated four (4) Issues from the Grounds of Appeal filed by the Appellant, for determination of the appeal by the court. The said issues are as follows:

‘1.    Whether the absence of evidence or note by the trial Judge showing that the charge was read and explained to appellant in a language she understands and that the proceedings were interpreted rendered the trial of appellant a nullity.

2. Whether the appellant was denied a fair hearing by the mere fact that PW1, PW2, DW1 and DW2 testified in Igbo language at the trial court.

3. Whether the circumstantial evidence relied upon by the learned trial Judge in convicting the appellant (which said conviction was affirmed by the court below) was cogent, positive and compelling enough.

3.Whether the court below was not right in affirming the conviction and sentence of the appellant as the case of the prosecution was proved beyond reasonable doubt.

The brief of argument was settled by the Hon. Attorney General of Abia State, Chief Umeh Kalu who also argued same. He took the issues seriatim.

Issue No.l,

Learned Attorney General referred to the proceedings of the trial court on 2nd March, 2003 when the plea of the appellant was taken upon her arraignment with the 2nd accused person. He indicated that the record shows that the charge on information was read and explained to both accused and each of them pleaded NOT GUILTY respectively.

Learned counsel referred to Section 215 of the Criminal Procedure Law of Eastern Nigeria, 1963, applicable in Abia State and Section 36 (6) (a) and (e) of the 1999 Constitution. He referred in particular to the three requirements of Section 215 of the CPL which must coexist and submitted that the three requirements coexisted in the instant case. He contended that the complaint of the appellant is not that she was placed before the trial court fettered, neither is it that he was not called upon to plead instantly thereto, rather her complaint was that it appears that the charge or information was not read over and explained to the accused in the language she understands.

He referred to page 40 of the record of proceedings to show that the trial Judge recorded that the charge on the information was read and explained to the two accused persons. He submitted that the mandatory requirement was complied with by the trial court.

Learned Attorney General contended that when the learned trial judge recorded that charge was read and explained to the accused persons, it means that the said count or information was read in English language and explained/translated to Igbo language to the accused persons who testified in Igbo language at the trial.

He submitted that in the Southern States there is no compulsion on trial Judges to record the fact of interpretation, whereas in the Northern States, there is such a provision to record the issue of interpretation vide-section 241 of the Criminal Procedure Code. The only requirement in the Criminal Procedure Law for interpretation is Section 36(6) (a) and (e) of the 1999 Constitution.  He relied on Edwin Ogba Vs. The State (1992) 8 LRCN 362 at 399, Per Belgore, JSC (as he then was). Queen Vs Equabor (1962) 1 All NLR 286, per Brett, F.J at pp. 290-291 Godwin Anyanwu Vs. The State (2002) 13 NWLR (Pt.703) 107, Peter Locknan & Anor Vs The State (1972) All NLR 498; State V. Salih Mohammed Gwonto (1983) All NL%R 109. Nwachukwu Vs. The State (2007) 17 NWLR (Pt.1062) 31 Pele Ogunye & Ors V. The State (1999) 88 LRCN 699.

Learned Attorney General submitted that the appellant and the co-accused were represented by their respective counsel before the trial Judge. Both counsel participated in the trial from the beginning to the end without any complaint or objection from either of the counsel. Whereas, it is the appellants duty or that of her counsel to have objected to the proceedings if she had any complaint. Not having done so at the trial court, it is too late now so to do.

He cited; Francis Durwode V. The State (1997) 1 NWLR (Pt.482) 306 at 402.

Learned Attorney General submitted further that there was no breach of the mandatory provisions of the Constitution and the Procedural Law. The appellant understood the charge read out to her and the fact that she was standing trial for murder. He said there was no procedural irregularity in the trial.

He urged the court to resolve the issue in favour of the Respondent.

On Issue No.2, whether the appellant was denied fair hearing by the fact that the PW1, PW2, DW1 and DW2 testified in Igbo Language at the trial court learned Attorney alluded to various decisions of this court and court below on the meaning of ‘fair hearing’. They include Oloruntoba-Oju Vs Abdulraheem (2009) 13 NWLR (Pt.1157) 83 at 142. Amamchukwu Vs. FRN (2009) 8 NWLR (Pt.1144) 475 at 486-487 A-G of Kwara State Vs. Abolaji (2000) 7 NWLR (Pt. 1139) 199.

He submitted that in the instant case, the appellant was afforded an opportunity to be heard at the trial court. She took her plea after the charge was read and explained to her. She cross examined the prosecution witnesses through her counsel. She defended herself in a language she understands, that is Igbo language. She was present on all day(s) the matter came up.

Learned Attorney submitted further that there is no evidence on record that the appellant did not understand Igbo or English Language, as the case may be. Therefore, if neither the accused person (Appellant) nor her counsel demanded the formers right to interpretation nor objected to the absence of an Interpreter, the right is lost for all time and cannot be invoked on appeal. No right of the appellant was breached at the trial court. The appellant was given fair hearing. He urged the court to resolve Issue No.2 in the negative and in favour of the Respondent.

Issue No.3 is whether the circumstantial evidence relied upon by the learned trial Judge in convicting the appellant, which said conviction was affirmed by the court below was cogent, positive and compelling enough.

Learned Attorney General contended that the fact that the appellant was the person with whom the deceased was last seen alive, is just one of the many species of evidence from which the learned trial Judge drew the inference that the appellant and her co-accused killed the deceased. The conviction and sentence was affirmed by the court below.

He submitted that even though there is no direct evidence of someone who saw the appellant committed the offence of murder of the deceased, there were enough circumstances that warranted the learned trial Judge to draw the inference. He cited Ude-Dibie & Ors Vs The State (1976) 1 SC 133.

Learned counsel referred to the circumstantial evidence relied upon by the prosecution at pages 103-105 of the record of proceedings which was accepted by the court below and reproduced by the court at pages 193-195 of the record. He submitted that the court below was right in affirming the conviction and sentence of the appellant, as this court has maintained that where direct eye witness account is not available, the court may infer from the facts proved, the existence of other facts that may logically tend to prove the guilt of the accused person. He relied on Olusola Adepetu V. The State (1996) 61 LRCN 4519-4543, Chima Ejiofor V. The State (2001) 86 LRCN 1318 at 1344.

Learned Counsel referred to portions of the testimony of the appellant and her attitude, after she discovered the deceaseds body in the soakaway or septic tank. He submitted that there are no other co-existing circumstances which can weaken the inference of her guilt. Cited; Philip Omogodo Vs. The State (1981) SC 5 at 24.

On the doctrine of ‘last seen’ which means, in effect, that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. He relied on lgabele Vs. The State (2006) 139 LRCN 1831, Nwaeze Vs State (1996) 2 SCNJ 41-61. Gabriel Vs. State (1989) 3 NWLR (Pt.122) 457.

On whether this court should depart or overrule itself from its previous decisions, based on the doctrine of ‘last seen’ learned counsel contended that the request is untenable. He contended that the facts of the previous decisions of this court are in all fours with the case in hand. He urged the court to refuse the invitation to overrule itself on the age long doctrine of ‘last seen’. And resolve Issue No.3 against the appellant.

On Issue No.4 whether the court below was not right in affirming the conviction and sentence of the appellant as the case of the prosecution was proved beyond reasonable doubt, the learned Attorney General submitted that in a charge of murder, the duty on the prosecution is to establish –

(a)    That the deceased died;

(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 must have been intentional with knowledge that death or grievous bodily harm was its probable consequence.

He relied on; Alewo Abogede Vs. The State (1996) 37 LRCN 674, Godwin lgabele Vs The State (Supra) Idiok Vs. The State (2010) 8 LRCN 96.

He submitted that the guilt of an accused person can be proved or established by the confessional statement of the accused or by circumstantial evidence or by evidence of an eye witness of the crime. He cited; Emeka Vs The State (Supra). Adekunle Vs. The State (2006) 5 LRCN.

He submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable, the case has been proved beyond reasonable doubt.

He submitted that the prosecution proved his case against the appellant beyond reasonable doubt. The court below was right in affirming the conviction and sentence to death of the appellant by the trial court.

Learned counsel referred to the concurrent findings of facts by the two courts below. He submitted that as there is no perversion in this case, this court should not disturb the said concurrent findings of facts of the courts below, but upholds same to dismiss the appeal and affirm the judgment of the court below.

I have considered the respective issues for determination formulated and argued by both the appellant and Respondent. There is not much difference. This appeal will therefore be determined by the issues formulated by the appellant.

Issues 1, 2 & 3 formulated by the appellant shall be taken together. They all point at the same direction, that, if the plea was not properly taken when the appellant was arraigned before the trial court and the eviden

COUNSELS

 

Mr. Kemasuode Wodu appears for the Appellant.

Mr. Umeh Kalu, A-G Abia State with him Va. Offiah; N.N. Akinole, ADCL; Mrs. I.C. Omokwe CSL, Ministry of Justice, Abia State appear for the Respondent.

 

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