STATE v. ADU
(2021)LCN/5155(SC)
In The Supreme Court
On Friday, December 10, 2021
SC.1146C/2019
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
THE STATE APPELANT(S)
And
INYA ADU RESPONDENT(S)
RATIO:
AN APPELLATE COURT CANNOT INTERFERE WITH THE FINDINGS OF FACTS BY A TRIAL COURT
The law is settled by an unending line of judicial decisions that an appellate Court cannot interfere with the findings of facts by a trial Court or its belief of witnesses that have not been shown to be perverse because it holds a different view of the evidence. The appellate Court cannot substitute its own views for those of the trial Court, especially where the issue turns on the credibility of witnesses. Once, as in the present case, there is sufficient evidence on record from which the trial Court made its findings of facts, the appellate Court cannot interfere. This is because the reception and evaluation of evidence are primarily the functions of the trial Court. See for example Efe V The State (1976)11 SC 75, Okonofua V The State (1981) 6-7 SC 1 @ 14, Bamgboye V University of Ilorin (1999) 6SC (Pt.ii) 72 and Fasikun V Oluronke (1999) 1 SC 16. EMMANUEL AKOMAYE AGIM, J.S.C
ALIBI
As this Court held in Obakpolor V The State “It is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence”. EMMANUEL AKOMAYE AGIM, J.S.C
ALIBI
That the defence of alibi put forward by the respondent was not sustainable as the evidence proffered by the prosecution placed him at the scene of crime and at all times material. He cited Agbiti v Nigerian Navy (2011) LPELR-2944 (SC) P.53; Hambe & Anor v. Hueze & Ors (2001) 4 NWLR (pt.703) 372 etc. Mary Ukaego Peter-Odili, J.S.C.
PROOF OF CONSPIRACY
That in the proof of conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprises need not be given as all that is necessary to be shown is a meeting of minds. He relied on Oladejo V State (2014) LPELR-22946 (SC) etc. Mary Ukaego Peter-Odili, J.S.C.
PROOF OF MURDER
They must also prove the cause of death which cause must be traceable to an act or omission of the accused person and they must prove that the said act or omission of the accused person was intentional knowing that death or grievous bodily harm was a consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270. See also Kada v State (1991) 22 NSCC (pt. ii) p. 592; State v. Danjummai(1996) 8 NWLR (pt. 469) p.660.” Mary Ukaego Peter-Odili, J.S.C.
BURDEN OF PROOF IN ACRIMINAL CASE
It is trite that in order to discharge the burden of proof in a criminal case the prosecution must prove the ingredients of the offence with which the accused is charged beyond reasonable doubt. This well-established principle of law was reiterated by this apex Court in NWATURUOCHA V. STATE (2011) LPELR- 8119(SC) where it was held as follows:-
“In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify at the proceedings- Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged, Amadi v. The State (1993) 8 NWLR pt. 314 pg. 644 at pg. 668; Alor v The State (1997) 4 NWLR pt. 501 pg. 511.” Mary Ukaego Peter-Odili, J.S.C.
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): The respondent was the Vice Chairman of the Task Force of the Youths Association of Amaorie Ozziza Community in Afikpo North L.G.A of Ebonyi State. On 18-9-2016, as such Vice chairman, he and other leaders of the taskforce directed and led members of the said Task Force of the Youths Association of the Amaorie Ozziza to go out and force youths in the community that had refused to attend the meeting of the Youths Association holding that day at the community playground, Armed with sticks, machetes and axe, singing war songs, they invaded the home of one Ali Agha to compel him to attend the said meeting. In the process of compelling him to follow them, they killed him by inflicting multiple machete cuts on his body resulting in acute loss of blood.
Nine members of the group, including the respondent, were arrested by the police in connection with the incident. They were arraigned before the High Court of Ebonyi State, at Afikpo in Afikpo Judicial Division in criminal case No. HAF/24C/2017 on an amended one count charge of murder of Ali Agha contrary to Section 319(1) of the Criminal Code Law Cap. 33 Vol. 1 Laws of Ebonyi. The respondent was the 3rd accused.
Following conclusion of evidence and addresses by the prosecution and the defence, the trial Court rendered its judgment on 15-10-2018, holding inter alia that-
“The firm view of this Court is that all the accused persons in this charge are caught up by Section 7 of the Criminal Code Law Cap 33, vol. 1, Laws of Ebonyi State of Nigeria, 2009. ANIGBOGU V. UCHE JIGBO (2002) 10 NWLR (Pt. 776) page 472 at page 477 on need for local associations not to violate citizen’s rights to freedom of association, Court of Appeal held thus:
“Desirable as development project in the community may be, there must be precaution to ensure that the fundamental rights of individuals are not trampled upon by popular enthusiasm. These rights have been enshrined in the legislation, that is the constitutions, enjoy superiority over local custom, freedom of association and religion are all constitutional rights which ought to be respected”.
See also the case of Agbai v. Okogbue (1991) 1 NWLR (Pt. 204) 391.
The above authorities, it is evident that the movement of the youths to the house of the deceased in the manner in which it was carried out, was unconstitutional and was in the … a breach of the fundamental right of freedom of association of the deceased as stated by Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
It is the law that where more than one person is accused of joint commission of crime as in the instant case, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The fact of the common intention manifesting in the execution of the common object is enough to render the accused persons guilty of the offence.
The Supreme Court in NWANKWOALA V. STATE (2006) 14 NWLR (pt. 1000) … at page 667 Ratio 3 – where on proof of common intention to commit crime, the Court intoned as follows: “where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance to the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. ”
The Supreme Court in the same case at page 667 ratio 4, on joint liability for common action to commit crime the Supreme Court intoned as follows:
“Where common intention is established, a fatal blow or gunshot though given by any of the parties is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is, in that case, no more than the hand by which others also struck.”
Consequently, the firm view of this Court that based on the pieces of evidence of PW3, PW4, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker.
The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple witness were on the lateral part of the deceased which are used for defence.
The view of this Court is that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiangwu alone while the other accused persons stood. Even if all the accused persons stood akimbo while Ejike Obiangwu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiangwu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra).
The further view of this Court is that even if it was only Ejike Obiangwu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v. State (supra), Ejike Obiangwu would only be the … which the other accused persons struck.
The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise”.
The trial Court convicted the respondent and his co-accuseds for the murder of Ali Agha and sentenced them to death by hanging.
Dissatisfied with this judgment, the respondent herein commenced appeal No. CA/E/131C/2018 to the Court of Appeal at Enugu by filing a notice of appeal on 21-11-2018 against the said judgment. On 1-8-2019, the Court of Appeal delivered its judgment. It concurred with the finding of the trial Court that the evidence adduced by the prosecution proved that the deceased, Alli Agha was murdered and then proceeded to decide inter alia that- “The appellant raised the defence of alibi at the earliest opportunity when he stated that he did not go with the other youths and task force members to compel other people to attend the meeting in his extra-judicial statement, see page 66 of the Records. The appellant subsequently stated that he was at the village square with the chairman where they waited for the others to join the meeting. This is further corroborated by the fact that none of the other Accused persons mentioned the appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial statements; neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the Prosecuting placing the appellant at the scene of the crime.
The defence of alibi, where raised presupposes that the Accused person was somewhere else other than the crime scene at the time crime was committed.
Appellant furnished the respondent with the information of about which left to the respondent to duly investigate it is the responsibility of the respondent to investigate, this rebut it or place the appellant at the scene of the crime which had to do. The police must investigate the defence of alibi at the … opportunity. That was not done in the instant case and the prosecution did not offer any explanation for the lapse. That was also a serious blunder on the part of the prosecution. See Ani v. State (2009) 16 NWLR (Pt. 1168) 443 S.C. The onus is not on the Accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi.
I am bound by this decision because the testimony of the PW5 was that “all these events happened in the presence of the youths president Augustine Ogbonnaya Egwu and his deputy, Inya Agu, Nkaa Egwu and others…” This to my mind does not elicit the appellant’s participation in the alleged crime; it only shows that he was present at the scene of the crime and nothing more. The evidence of PW5 is not credible as it is wrought with inconsistencies; his extra-judicial statement contradicts his testimony in Court. The PW5 explicitly stated on page 12 of the Supplementary Record that;
“As at the time I made my statement to the police, all about the incident was not fresh in my memory because as a result of the head injury that was inflicted on me, I had a mental problem… Before I signed my statement which was recorded for me by a policeman called Ojukwu because of the mental problem I had, it was not read to me. I stated to the police the name of Igwe Oko and Inspector Egwu Oku as those that encouraged the youths by buying them drinks from where they moved to go and kill my brother. The police made a mistake by including their names as part of those that killed my brother.”
Going by the mental state of PW5, it is risky to rely on his evidence and testimony as it is obviously unreliable. The respondent shot itself on the foot by presenting the evidence and testimony of PW5 instead of that of a vital witness as Uche AIi who had an encounter with Ejike Obiangwu (the one who allegedly dealt the blow that killed the deceased). Uche Ali had narrated in his extra-judicial statement on page 20 of the Records that when he heard there was a fight, he ran to the scene and found the deceased in a pool of his own blood where he was informed that it was Ejike Obiangwu that did it so he ran in the direction that he was told Ejike Obiangwu had followed and found Ejike Obiangwu still armed with a cutlass soaked with blood. The said Uche Ali received a machete cut too when he made enquiries as to why Ejike Obiangwu killed his brother. It is curious that the Respondent did not call such vital witness to testify in Court which raises the presumption in Section 167(d) of the Evidence Act, 2011 that his evidence would have been detrimental to the case of the prosecution.
The learned trial Court on page 44 of the Supplementary Records stated thus; “It is in view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D that the earliest opportunity referred to him as one of the masterminds of the killing of the deceased.”
In his extra-judicial statement, (Exhibit D), PW3 stated that:
“The people that killed my brother are (1) Ejike Obiangwu (2) Isu Ogbonnaya (3) Nka Egwu. The Youth President Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo”
This does not place the Appellant at the scene of the crime; rather it raises the allegation of a conspiracy. The concept of conspiracy as seen in MBANG V. STATE (SUPRA) presupposes that two or more persons came together to form the common intention to commit an offence. This means that for a charge of conspiracy to succeed, the prosecution has to show the meeting of the minds of the Accused persons and an agreement between them to commit an offence.
PW5 on page 18 of the Records in his extra-judicial statement insinuated that on the 16thof September, 2016, there was a meeting or regrouping of the youths at the instance of Inspector Oko Egwu PW5 further stated that:-
“The reason for the meeting that was called for that led to the killing of my elder brother was to discuss on the way for the youth to function again whether you agree or no”
The above statement does not connote any intention to harm or even kill anybody. It does not reveal any conspiracy to commit an offence neither does it reveal the names of the participants of the meeting. The PW5 did not mention that he was present at the meeting which could be reasonably inferred that the information he has on the said meeting of 16/09/16 is hearsay which is inadmissible. See OJO V GHARORO (2006) 10 NWLR (Pt. 987) 173 S.C OJUKWU V YARADUA (2009) 12 NWLR (Pt. 1154) 50 S.C and AROGUNDADE V STATE (2009) 6 NWLR (Pt. 1136) 165 S.C.
Furthermore, PW5 recanted this statement (Exhibit B) during his testimony in Court when he stated that the police made a mistake by including the names of Inspector Egwu and Igwe Oko. Therefore, there is no indication or evidence that any meeting took place before the date of the incident, and the meeting that was scheduled to take place never took place because of the incident. Where then is the evidence of conspiracy? None of the witness actually identified or specifically pin point what the Appellant did to kill the deceased nor did they state in clear terms the role the Appellant played in the killing of the deceased, if any. PW3 in his statement to the police which was given at the earliest opportunity did not mention the extent of the appellant’s involvement in the killing of the deceased, he only stated that the chairman of the youths and the appellant who was the vice chairman masterminded the killing of the deceased without adducing further evidence as to the alleged conspiracy. The witness is not allowed to just make a blanket statement without providing specific details to this alleged plot to kill the deceased. The statement of PW3 in this regard is a mere statement and not a statement of fact as evidence was not adduced to prove same and it is therefore not sufficient to implicate the appellant. The testimony given at the earliest opportunity is the best evidence, when the evidence and events are still fresh in the mind of the witness and not when the witness has had ample time and opportunity to implicate others.
It is a long established principle of law that to be held credible and acted upon, the name of a suspect must be mentioned at the very first opportunity.
During the cross-examination, PW3 stated that he does not know whether there was a meeting of the youths. See page 187 of the Record(s) If this is the case, how then did PW3 come to the conclusion that the appellant masterminded the killing of the deceased? There is no evidence to that effect. DW1 and DW2 as elders in the community gave evidence to the effect that the elders of the community had granted permission to the youths of the community to hold the meeting slated for the 18/09/16 to discuss the way forward on the completion of lock-up stall initiated by the youths. This evidence was not contradicted, rebutted nor refuted. Therefore, the purpose of the meeting slated for 18/09/16 was slated by DW1 and DW2 and not to conspire to kill the deceased.
The Respondent failed to prove that, it was the act of the appellant that caused the death of the deceased. The only ingredient of the offence of murder that was established by the respondent ease the first ingredient which is that the deceased had died. Since the second ingredient which relates to cause of death was not established, the third ingredient and conspiracy theory goes to no issue. Having a corpse as proof of death is not sufficient evidence to hang another man for the death of the deceased. The intention to kill as in the motive and the actual act of killing or ensuring the act is done, as in a conspiracy must be established beyond reasonable doubt.
The Prosecution failed to prove the 2nd & 3rd ingredients of the offence of murder beyond reasonable doubt. The absence of a clear intention and common intention in the circumstance of this case compels one to allow the appellant the benefit of the doubt.
This appeal is allowed. The decision of the learned trial Court is hereby quashed. The appellant is discharged and acquitted and shall be released from custody immediately”.
It is against the above judgment of the Court of Appeal that the appellant herein filed a notice of appeal on 6-8-2019 commencing this appeal No. SC. 1146c/2019. The notice of appeal contains three grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised two issues for determination as follows-
I. “Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased”. (Ground 1)
II. “Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Ground 2 and 3).”
I must start the consideration of the two issues raised for determination by the parties herein in their respective briefs by observing that the judgment of the Court of Appeal exposes that its review of the factual basis of the judgment of the trial Court did not follow the prescription in Section 135 of the Evidence Act thusly-
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of providing reasonable doubt is shifted onto the defendant.
By virtue of this provision, the Court of Appeal was bound to find out if the evidence of the prosecution on its own established a case against the respondent beyond reasonable doubt and if it finds that it did, then proceed to find out if the evidence of the defence proved reasonable doubt in the case established by the evidence of the prosecution. The judgment must prima facie reflect this approach in dealing with the evidential basis of the decision. The judgment of the Court of Appeal shows that the Court did not direct itself on the appropriate approach to adopt in its appellate review. It went straight to picking out what it adjudged as faults in the evidential basis of isolated parts of the judgment of the trial Court.
The judgment of the trial Court was based on findings of facts that were largely founded on the credibility of witness testimonies and the trial Court’s belief of the said witness. Therefore, an appellate review of the evidential basis of such findings of fact must be limited to finding out if the findings of facts were perverse in the sense that they were not supported by any evidence at all, or are contrary to the logic of the evidence or are unreasonable.
It is obvious from the terms of the judgment of the Court of Appeal that its decision that the prosecution failed to prove the case against the respondent beyond reasonable doubt is the result of its understanding of the evidence before it and the inferences and conclusions it drew from the said evidence and not the consideration of the validity of the findings of facts by the trial Court. The law is settled by an unending line of judicial decisions that an appellate Court cannot interfere with the findings of facts by a trial Court or its belief of witnesses that have not been shown to be perverse because it holds a different view of the evidence. The appellate Court cannot substitute its own views for those of the trial Court, especially where the issue turns on the credibility of witnesses. Once, as in the present case, there is sufficient evidence on record from which the trial Court made its findings of facts, the appellate Court cannot interfere. This is because the reception and evaluation of evidence are primarily the functions of the trial Court. See for example Efe V The State (1976)11 SC 75, Okonofua V The State (1981) 6-7 SC 1 @ 14, Bamgboye V University of Ilorin (1999) 6SC (Pt.ii) 72 and Fasikun V Oluronke (1999) 1 SC 16.
In the light of my foregoing holding, this appeal succeeds without the need to further into the issues raised and argued in the briefs herein. Be this as it is, let me still consider them for whatever such exercise is worth.
Learned Counsel for the appellant in his brief has argued extensively that the said inferences and conclusions by the Court of Appeal are not supported by the evidence. Learned Counsel for the respondent in his brief argued in support of the said inferences drawn by the Court of Appeal from the evidence before it.
Let me now consider the merits of these arguments.
Let me start with the finding of the Court of Appeal that:- “None of the other Accused persons mentioned the Appellant as one of those who went to compel the other youths to attend the meeting in their extra-judicial Statements, neither did they mention it in their testimonies before the learned trial Court. Furthermore, there is no evidence adduced by the prosecution placing the appellant at the scene of the crime.”
This finding by the Court of Appeal is contrary to the evidence. PW5 in Exhibit B, his extra-Judicial Statement made at the police station during investigation before trial, stated that the respondent was present amongst the youths at the scene of the crime when the deceased, his elder brother was attacked and killed by the youths and that Ejike Obiangwu inflicted the machete cuts that killed the deceased and Chukwu BenbeIla inflicted the machete cut on PW5’s head. The exact portion of the exhibit B that contains his statement reads thusly – “The deceased Ali Agha ‘m’ is my immediate elder brother. It was at about 8am of 18-9-2016, I was coming out from my father’s compound when I saw my younger brother Agha Pius crying, I asked him what the problem was that made him to be crying and he replied that he was flogged by the youths of our village by names (1) Umeh Agwu ‘m’ (2) Chukwu Benbella as I was still standing with my younger brother, the youth made up of the following people came; Umeh Agwu ‘m’, Chukwu Benbella Ogbonna Egwu ‘m’, Aka Esa, ‘m’, Ejike Obiangwu ‘m’, Eko Chukwu ‘m’, Moses Onyia ‘m’, Sunday Ogbonaya Oko Aka Dede ‘m’, Oko Akpu ‘m’ Irem Chukwu ‘m’, Inspector Egwu Oko ‘m’, Igwe Oko ‘m’ and others whose names I cannot remember but if I see them, I will recognize them. There came from same village with me. They were all armed with cutlasses and sticks. It was when they entered inside my father’s compound that the deceased, my elder brother, Ali Agha warned them that they should stop beating his younger brother again, at that point, Sunday Ogbonnaya, Oko Chukwu, Aka Dede and that my brother Ali Agha has insulted the youths, that he should either lied down to be given twenty strokes of cane or he will go to the village play ground to face the punishment but my brother refused and that was when they started cutting him with cutlass all over his body. The name of the person that actually cut him at his face and back that led to his death is one Ejike Obiangwu ‘m’.
The truth is that the people I saw that killed my elder brother are (1) Ejike Obiangwu and Chukwu Benbella ‘m’. It was even Chukwu Benbella that gave me a machete cut on my head. All this events happened in the presence of the youth president Augustine Ogbonannya Egwu and his deputy Inya Agu, Nkaaa Egwu and others. This is my statement.”
The PW5 testified in open Court in examination in chief thusly:
“I know one Ali Agha. He is my elder brother. He is dead now and in the mortuary. I know how he died. On 18/9/2016 in the morning hours which was a Sunday that people go to church. Then as I was coming out of my father’s compound, I saw my younger brother one Pius Okpara Agha, that is the PW3 as he was crying. I asked him why he was crying and he told me that these Accused persons in the dock and some who are on the run trooped into his shop and started beating him in his said shop. As we were still talking my elder brother late came out of the house and also asked him why he was crying and he started narrating the incident to him. As we were still asking him, I heard a noise and that noise was from a great crowd who were singing war song which does not tolerate the presence of women. In a short while I saw this crowd of people coming into our compound holding machetes and sticks. As they came in, the 1st Accused who is the chairman of the task force asked my brother the deceased to come to the village square. The deceased now stated that he had warned them not to come into our compound and beat my brother. At that point the 1st Accused person, stated that he had insulted the youths. As he asked my brother to come out, that the youths would give him 20 strokes of cane and my brother refused to come out. The 1st Accused person now ordered the youths to take hold of my brother. As the 1st Accused gave this order, that Nicholas Olughu the 5th Accused person came into our house and started dragging the deceased out of the house forcefully. (This Nicholas Olughu was wearing Jonathan Goodluck 2015 T. shirt.)”
When the deceased saw that the youths were serious about him coming out, he ran away. These Accused persons and others on the run pursued him. As I saw this and reasoned that the youths could kill my brother I ran after them. As I ran a little the 7th Accused person held me while the 4th Accused person inflicted a machete cut on my head. The scar still on my head, if the Court so desires, the Court can see it. (The Court actually observed the head of the PW5 and saw a scar reminiscent of a machete cut). As I looked up, I saw the youths had entangled my brother the deceased with their legs and he fell down. They now stated inflicting machete cuts on him as if he was a tree. When they saw that he had become weak and dead, they left him and ran away still chanting their war song to the village square. I started carrying the deceased thinking that he was still alive and I did this in conjunction with the PW3. As we were doing that I also saw that the PW3 was also given a machete cut. I also saw that PW4 had also been inflicted with machete cut on her face. I also saw that one Uche Ali had a machete cut. I now carried my brother the deceased on a motor bike and took him to Mater Hospital where a medical Doctor examined and confirmed him dead. I left that hospital and went to the Police Division in Afikpo and lodged a complaint. The police now accompanied me to the Mater Hospital. As we were going to the hospital, the police engaged the services of a photographer. As I saw that I was bleeding profusely, I left for Afikpo Medical Center for treatment. After, the treatment the following day I went to the police at Abakaliki and made a statement.
Under cross-examination he testified thusly –
Q – In your statement of 19/9/2016, that is Exhibit B, you stated: “The people that I saw that killed my elder brother are
(1) Ejike Obiangwu and (2) Chukwu BenbeIIa ‘m’?
A – The Accused persons and those still on the run are those that killed my brother, I even listed their names in a paper.
Q – You told police in this Exhibit “B” also: “The name of the person that actually cut him at his face and back that led to his death in one Ejike Obiangwu?
A – I was not myself when I made Exhibit B but I started that it was Ejike and others that killed my brother.
Q – Having mentioned Ejike as the person that killed your brother, you just started mentioning other persons that they were there in order to rope them
A – Ejike and the Accused persons came to the scene of crime together and it was Ejike and these Accused persons and others still on the run that killed my brother; if Ejike did not kill my brother why is he running away.
PW3, Pius Okpara Agha in exhibit D, his extra-judicial statement made at the police station during investigation mentioned the respondent as one of the masterminds of the attack and killing of the deceased. The exact text of exhibit D reads thusly-
“It was on the 18th of September, 2016 when I went to my shop at about 0700 hours and started work as a hair stylist. As I finished barbing the first person and was about to barb the second person, the youth of Amorie Ozizza led by one Oko Chukwu Dede M. came to me and asked if I had no heard the bell that was ranged calling us for a meeting, I told them that I did not hear any bell, that I slept at Amaike Ozizza. They then told me that I should come out and receive twelve strokes of cane, at that point, I told them that it is too early that people are going to church, they started beating me, after which they left me and went to Ogo. After sometime, they came back to me at my mother’s place Eziukwu Amorie Ozizza. On getting there, they saw me and late Ali Agha, one of the … the Ogo for the meeting, my brother late Ali Agha told them that we are going to church. They left us and went back. After some time, the youths came back now singing a war song popularly sang in the village when there is problem, they armed themselves with cutlasses and sticks and started destroying the roof of the house at one Ugo Euo and after that we ran for our dear lives and they pursued us and met my brother late Ali Agha and started cutting him with cutlasses all over his body in the process, I went to rescue late Ali Agha and was cut with a cutlass by Chukwu BembeIIa and Umeh Agwu M all of the same village with me. The people that killed my brother are (1) Ejike Obiahu M. (2) Isu Ogbonnaya ME and (3) Nka Egwu. The youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa M, he masterminded the whole thing with his vice Inya Adu Aringo. This is my statement”.
His testimony in examination in chief in Court reads thusly-
“It was on the 18th day of September, 2016 at about 7am on that Sunday, I and the deceased were living at Amikp in the house of my grandfather. On that Sunday morning, we came to Amaorie, that is, Eziukwu Amaorie. The deceased now decided to go and see our mother in that our compound to greet her. I went and opened my barbing salon as I opened the shop, the first customer came. I barbed his hair and went to the second customer. As I was barbing the second customer, these Accused persons who are youths of Amaorie and others still on the run came and surrounded me and said: are you hearing the traditional gong being sounded? I now said that I did not hear it because I live at Amikpo. They told me to come out that they would administer to me twelve strokes of the cane. I told them that today is Sunday and that after barbing the second person that I will start going to church. As I was still telling them that, they all started flogging me, all over my body with sticks. After flogging me, they now started going to the village square. I now closed my barbing salon and started going to my mother’s house because I was no longer myself. As I now was in my mother’s house, the deceased, myself and my mother were discussing in her house. As we were there discussing, all these Accused persons and others decided to come to my mother’s house and asked us what we were still doing there. The deceased now told them that what are you people doing here? That today is Sunday and that we were preparing to go to Church. They now went back to the village square. As they were going, I told the deceased that theses Accused persons and others had been to my barbing salon and beat me up. As we were still in my mother’s house, these Accused persons and others still on the run started advancing towards my mother’s house chanting war songs such that a female who hears must take to flight. They were holding sticks, machetes and axe. As they got to my mother’s house, they commanded the deceased to come out from the house for them to give twenty strokes of the cane for neglecting them. The deceased said that he will not come and that he was even a Counselor in Oziza and how come they have come to intimidate him. At this point they now rushed in to the said house to grab him and the deceased took to flight and I followed him in that flight. As both the deceased and I ran out of the house we ran toward different directions, with the deceased running towards where the elders of Amaorie perform the traditional rite while I hid myself. As I was in that hiding place, I started hearing the shouting of the deceased. As a result of the shouting emanating from the deceased, because he was my elder brother I decided to come out of my hiding place to know what was happening to him. As I came out, I saw these Accused persons and others on the run inflicting machete cuts on the deceased jointly. As I saw what the Accused persons were doing to the deceased, because the deceased was my elder brother, I could not bear what was happening to him, I braced up myself and rushed towards him, in a bid to rescue him from theses Accused persons and others still on the run, as I made this attempt, the 4th Accused person inflicted a machete cut on my arm. (The Court took a look at the said left arm and saw a scar that is reminiscent of a machete cut).
As I still attempted the rescue mission of the deceased one of the youths who was with the Accused persons and who is still on the run inflicted another machete cut on my hand, close to the wrist. They now jointly violently shoved me aside as a result of which I crash landed to the ground with my mouth and which inflicted injury on my lips which caused same to be stitched. Before I could get up, they had completely killed the deceased. I then stated shouting. As I was shouting another of my elder brother called Alum Agha Geoffrey started running towards where I was with injury on his head which the youths had also inflicted on him. The youths also inflicted a head injury on one Uche Ali. I now told these people whom I mentioned above who also had injuries on them, but whose injuries were lighter than that of the deceased and one Ugochukwu Evo who had also gotten to the scene to assist me in carrying the deceased so that we could take him to where he could get medical attention. They assisted me and we placed the deceased on motorcycle that took him to the Mater Misericordiae Hospital with the deceased foot daggling on the road.
As we got to the said Hospital people scampered for safety and I started pleading with the people I saw around to please call for any medical doctor, the medical doctor examined the deceased and confirmed him dead. I then moved from the said Hospital to the Afikpo Divisional Police Headquarters and reported the incident. They now followed me and also invited a photographer who accompanied them and we now got to the said hospital and the policemen then assisted in depositing the body of the deceased in the mortuary after taking his photographs.
The police after depositing the body of the deceased in the mortuary, asked me to follow them to their station. As we got to the said police Division, the police men now called all other police stations within including the Police Stations at Unwana and Akpoha and Area Command Afikpo. Policemen from the above mentioned stations gathered and told me to take them to Amaorie Oziza. As we got to the market square at Amaorie Oziza, these Accused persons and others still on the run used tyres to make burn fire on the roads as a result of which the said police men were compelled to park their vehicles at that market square and moved on foot to the Elu Amaorie where we all saw the Accused persons with the blood stained machete they were still holding and which they all held into air and were singing and dancing to the war song saying that nothing will happen. They now started hauling stones on the advancing policemen as a result of which the police retreated for the safety of them and me. As we were making retreat, the police now called the Police State Command and reported the incident on account of which Police from the Ebonyi State Command Headquarters used three vehicles and came to Amaorie Oziza.
Before the arrival of these police from Abakaliki, the Accused persons and others had dispersed. Since these Accused persons and others had dispersed, the police from Abakaliki now took me along with them to Abakaliki where I now made statement to them stating what happened”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
This testimony was not challenged or shaken in cross-examination, PW4, Regina Chukwu Evo, in her testimony in examination in chief, stated that
“I can recall the event of 18/9/2016. On that 18/9/2016, a Sunday in 2016, I was in my house carrying a baby when I heard the Youths of Amaorie with their sing song or war song marching towards the house of Mama Ali Agha the mother of the deceased carrying machetes, Axe and sticks and met the deceased in the house of his mother and chased him out of said house and he started running and these Accused persons obstructed his speed by using their feet to entangle his legs and he fell down and they started inflicting machete cuts on him. Then I started begging them not to kill him that he is a human being o, then one of them called Ejike used the machete he was holding and inflicted machete cut on my face and I started bleeding profusely. I now immediately rushed to a patent medicine store where I was treated with stitches on my face.
After this, as I was returning, I now saw the deceased Ali Agha as he was being conveyed to the hospital on a motor bike and I also saw Okpara and Alum who are the younger brothers of the deceased and one Uche Ali who were carrying various injuries on their bodies. It is Ogbolsu and Ejike who are still on the run and these Accused persons that collaboratively killed the deceased. I made statement to the police in Abakaliki, Ebonyi State.”
Under cross-examination she testified that
“Q- Between today and when you made your statement, when was the incident fresher in your memory?
A- I have stated what I know what happened. It was these Accused persons that killed the deceased. I have stated the whole thing I know. It is these Accused persons that killed the deceased and inflicted machete cut on my face and I became unconscious and fell down.
Q- You said in Exhibit E that it was Ejike Obiahu that used a cutlass and cut Ali Agha all over his body that caused his death?
A- It was not only Ejike Obiahu that inflicted machete cuts on the deceased. All the Accused persons and those still on the run inflicted machete cuts on the deceased and also inflicted machete cuts on my face. You see my face, it is stitched.
Q- I am putting it to you that you have come to tell the Court lies by departing from your statement to the police?
A- These people in the dock, if you want me to start mentioning their names, I will. They are the people that killed Ali Aghas I am not telling a lie. Is it because Ejike Obiahu is not on trial that they are now alleging that it was Ejike alone that killed the deceased my brother.
Q- Were you forced in the police station to mention only Ejike Obiahu?
A- I never stated that it was Ejike Obiahu alone that killed the deceased.
Q- Where precisely did his killing of the deceased take place?
A- It was at Obu Amaorie that the Accused persons killed the deceased.
Q- From your house to where the incident took place, can you give an idea as to the distance?
A- The distance between my house and the Obu where the deceased was killed is about 1 pole.
Q- At the time of the happening of this incident, you told the police that you were in your house?
A- I was in my house carrying a little child when the incident started. But when they chased after the deceased, I came out and started pleading with them to leave him alone and they refused.
Q- You observed that day that it was the deceased who first inflicted a machete cut on Ejike Obiahu who then over-powered him and took the machete from him and then inflicted a cut or cuts on the deceased?
A- It is a lie. They are now alleging as above because Ejike is not here in Court. They are the people who killed the deceased.
Q- How was the deceased related to you?
A- The deceased was a member of my maternal family.
Q- You are now telling the Court lies because of that relationship that you had with the deceased?
A- I have not come to this Court to tell this Court lies. It is these Accused persons that killed the deceased. The deceased that they killed was not holding any wood or stick including myself that they inflicted machete cuts on my face.
Q- In Amaorie Oziza, Youths had always been meeting for the good of the community before they stopped for a while?
A- I do not know.
Q- That meeting that was called on 18/9/2016 was not for the killing of Ali Agha but for the purpose of the development of Amaorie Oziza?
A- I do not know. But if it was for the development of the Community, why did they kill my brother on that day.
Q- Between what you told the police in your statement, that is, Exhibit E and what you have told this Court; which do you want the Court to believe?
A- It is these Accused persons that killed the deceased, inflicted machete cuts on the deceased’s brothers and myself.
Q- How many people were present in the house of Ali Agha’s mother’s house when the Amaorie Youths went to the house?
A- There were many people there in the Ali Agha’s mother’s house. But when the Youths came with their war song, they ran away”.
It is glaring that PW3, PW4 and PW5 stated that the respondent was present at the scene of crime as part of the youths that went to the deceased house to force him to attend the youth meeting at the village square.
The decision of the Court of Appeal that PW5’s testimony that the President of the youths and the respondent who was his deputy were present when crime was committed does not show that the respondent participated in the crime, as it only shows that he was present at the scene of crime and nothing more, is not correct in fact and in law considering the provisions of Section 8 of the Criminal Code Law and the facts that he was there as part of the joint action of the Youths task force for the unlawful purpose of forcing the deceased by flogging with cane to attend their meeting and the deceased was killed in the process.
The decision of the Court of Appeal that none of the witnesses actually identified or specifically pin point what the respondent did in killing of the deceased show that the Court did not address its mind to the law on joint responsibility for an offence committed during a joint enterprise to carry out an unlawful purpose. The basis of responsibility for the crime is participation in the joint enterprise with the common intention to carry out a purpose that is unlawful. The specific role played in the commission of the offence that occurred in the joint enterprise is not a relevant consideration for joint responsibility by all members of the group for the crime.
The decision of the Court of Appeal that PW3’s testimony did not give specific details of how the respondent masterminded the killing of the deceased disregards the admitted facts that it was the youths association and Youths Task Force that decided that the Youth Task Force should go out and force the deceased to attend the meeting of the association holding that day at the village square and that the youths went to the house of the deceased to force him to attend the meeting and that the respondent as Vice President or Chairman of the Youths Task Force and his President was at the house of the deceased that day for that purpose.
Their leadership of the Youths Task Force and their presence at the deceased’s house when the invasion of the house and the killing of the deceased took place relieves the prosecution of any duty to prove any other overt acts of their mastermind of the attack.
It is not disputed on the evidence of both sides that when the Youth Association meeting scheduled to hold that day was about to start, it was observed that some of the youths were not present. On the direction of the President Youths Association, the Youth Task Force went out to compel the absent youths to attend the meeting. The absent youths would be flogged 20 strokes of cane for failing to attend the meeting voluntarily before they are compelled to attend the meeting. It has never been in dispute that the youths, with the common intention to force the deceased to attend the said meeting, went out on 18-9-2016 to actually force the deceased to attend the meeting.
The question of whether they conspired to kill the deceased is irrelevant in the circumstances of this case. The Court of Appeal did not direct itself on the proper question to ask on the evidence. The proper question is whether there is evidence of a common intention of the group of youths to go and force the deceased to attend the meeting.
The case of the prosecution is not that the youths conspired to go and kill the deceased. Its case from the evidence is that they formed a common intention to go and force him to attend the meeting and that in the process of executing or carrying out that unlawful purpose as a group, the deceased was killed by the machete cuts of one or more member of the group. Those facts are not in dispute on the evidence.
The part of the judgment of the trial Court that held that the evidence of PW3, PW4 and PW5 eye witnesses of the crime sufficiently fixed the respondent at the crime scene, reads thusly-
“It is view of this Court, that the pieces of evidence given by PW3, PW4 and PW5 sufficiently fixed the 3rd Accused person at the scene of the crime, especially as the PW3 in Exhibit D at the earliest opportunity referred to him as one of the masterminds of the killing of the deceased”.
In his extra-judicial statement, (Exhibit D), PW3 state that;
“The people that killed my brother are (1) Ejike Obiahu (2) Isu Ogbonaya (3) Nka Egwu. The Youth President of Amorie Ozizza is Ogbonnaya Egwu Esaa, he masterminded the whole thing with his Vice, Inya Adu Anugo”.
The Court of Appeal reproduced the above part of the trial Court judgment in its judgment and held thusly- “This does not place the appellant at the scene of crime, rather it raises the allegation of a conspiracy”. This holding is glaringly wrong as it is not supported by the evidence. The Court of Appeal drew the wrong conclusions from the said evidence.
The decision of the trial Court is that the evidence given by PW3, PW4 and PW5 fixed the respondent at the scene of the crime. The Court of Appeal had earlier in its judgment held that the testimony of PW5 showed that the respondent was present at the scene of crime at the time the crime was committed. Having held that the testimony of PW5 showed the presence of the respondent at the crime scene, the Court of Appeal contradicted itself when it held that the prosecution were bound to investigate the claim of the respondent in his extra-judicial statement at the police that he remained at the village square and did not follow the Youths Task Force to go and force the deceased and other youths to attend the meeting and so was not at the place where the youths attacked and killed the deceased.
It is a recurring judicial restatement of considerable antiquity that where eye witness testimony or other evidence has fixed the accused at the crime scene when the crime was committed, and the evidence is believed by the trial Court, the fact that the police did not investigate the claim of alibi becomes irrelevant. Whereas in this case the respondent was mentioned by three eye-witnesses, as being amongst the youths they saw attack and killed the deceased in his house, it becomes a straight issue of credibility of the witnesses and once the trial Court believes the witnesses as happened in this case, the trial Court’s reliance on such testimonies as evidence of his presence at the scene of crime cannot be faulted. Even the Court of Appeal affirmed the decision of the trial Court that the evidence of PW5 show that the respondent was present at the scene of crime. See Ezekiel Adekunle v. The State (1989) 12 SCNJ 184 at 190, Obiode v. The State (1970) 1 All NLR 35 and Mathew Obakpolor v. The State (1991) 1 SCNJ 91.
I find it difficult to agree with the decision of the Court of Appeal that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established, but for the prosecution to disprove the alibi”.
In a situation where during trial three witnesses for the prosecution testified that the respondent was among the youths that came to the deceased’s compound, attacked him and killed him and that the respondent was present when the deceased was attacked and killed, the respondent cannot safely rely on his mere assertion that he did not follow the youths to the deceased’s house and that he remained at the village square for his defence to the testimonies of the three prosecution witnesses fixing him at the scene of crime.
As this Court held in Obakpolor V The State “It is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence”.
Apart from stating in exhibit K, his extra-judicial statement at the police station and in his testimony in open Court that he remained in the village square and did not follow the youths to go to force the deceased to attend the meeting, he did not mention the names of any person in whose company he was or that saw him at the village square at the material time.
His statement in exhibit K reads thusly-
“My name is Inya Adu M. AKA Ringo, I am a native of Agba Amorie Ozizza in Afikpo North LGA of Ebonyi State. Born into the family of late Mr Adu Egwu and late Mrs Uzo Inya. I am the last born in the family. I am married with five children. A fisher man by profession. I had my primary education and secondary education at comprehensive secondary school Ozizza but I stopped in JSS 3. I know the deceased late Ali Agha. We are from the same village. I am the vice chairman of Amorie youth association. We have task force members of the youth. The chief task force is Sunday Oko Chukwu M. AKA DEDE. Other members of the task force are 1. Eko Chukwu M. 2. Elem Oyari M. Inya. 3. Ogbonnia Obure M. AKA Consider. 4. Anderson Agwo Ume M. 5. Ewa Olughu M, 6. Chukwu Bembella M, 7. Ejike Obiahu M. The task force members are empowered to use cane in the course of their duties. It is equally the duty of the task force members to go to the village and force members of the youth who refused to come for meeting to attend. In case they force any member to come for meeting and he refuses, they now use their cane on such person. On the 18th of September, 2016 we the youth members of Amorie Ozizza scheduled a meeting to be held at the village square Amorie. At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come. As the task force members came back, they reported to us that some people like Evo Chukwu m, Okechukwu m, Elem Ali m, Uche Ali m, and others whose names I cannot remember refused to come for the meeting. We then instructed them to go back and force them to come for the meeting, after some time, they came back and reported that when they got to them, they met one Ali Agha M, who told them that they should go, that they have formed their own group. After reporting that to us, we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting but I did not go with them. The next thing I heard was that as reported by the Chief task force Sunday Oko Chukwu M, was that as they reached, Ali Agha collected machete and gave Ejike Obiahu a cut on his body which caused him harm, that was when Ejike Obiahu collected the cutlass and gave him several cuts on his body but he did not die instantly, it was when he was rushed to the hospital that he was confirmed dead. It was Ejike Obiahu that killed Ali Agha. We did not have any meeting to kill Ali Agha. As Ali Agha died, the police came and started arresting people. So I ran away to Ekok Cameroun. It was there at Cameroun that I was called by my people to come back that running will not solve my problem. I don’t know where Ejike Obiahu is now. I don’t have his phone number. This is my statement”.
His testimony in examination in chief as DW5 in open Court reads thusly-
“On 18/9/2016, what I know about this charge is that I returned home on 16/9/2016 because of the burial of the mother of Inspector Oko Egwu. So after the said burial which took place on 17/9/2016, then on 18/9/2016 in the morning hour I heard the bell of the community toll and I came to the village square which is the usual place of our meeting. As I got to the village, I observed that other youths who presumably heard the bell also were also advancing towards the village square. At that village square all the youths that had gathered were waiting for the task force members who were in-charge of the ringing of the bell and who after the ringing of the bell would move round the village to ensure that all the youths attended the meeting. As we were still waiting at the village square for the arrival of the task force members who on their own split themselves into two groups for efficient discharge of their duties, one of these two groups of the task force members arrived the village square first. The youth then started waiting for the arrival of the second group so that the meeting would commence. The second group of the taskforce members eventually arrived the village square and informed the youths that there were some youths who stated that they would not attend the meeting. The task force members were asked to go back and bring those youths who said they would not attend the meeting. There was also the information from the second group of the task force to the effect that the deceased Ali Agha told them they the youths at the village square could go on with their meeting that they themselves had formed their youth association and would be holding their own meeting since Amaorie youth association is not more than one in Amaorie, the whole task force members were now asked to go back and bring those youths. While at the village square, we did not know that there was any problem, what we saw next was the 4th Accused person coming to the village square with a machete cut on his head and blood flowing there-from. We became dumb founded because we were aware that the task force members do not use machete to accomplish their assignments. We then decided to go to the chairman of Amaorie Development Union and tell him what was happening. It was while we were at the chairman’s place that we heard that Ejike had inflicted machete cut on the deceased. We did not sing any war song.”
The assertion without more did not sufficiently raise an alibi. The statement in exhibit K did not provide particulars of facts that police should verify. His testimony in open Court suffers the same lack of particulars of facts that may cast reasonable doubt in the testimonies of PW3, PW4 and PW5 that they saw him at the scene of crime amongst the youths that attacked and killed the deceased. The belief of the testimonies of PW3, PW4 and PW5 is justified even by the content of the respondent’s statement in exhibit K and his testimony as DW5 in open Court.
Let me consider the holding of the Court of Appeal that the prosecution failed to prove that it was the act of the respondent that caused the death of the deceased and that the prosecution failed to prove common intention and a clear intention in the circumstances of this case. This holding is clearly wrong. The Court of Appeal judgment was silent about the findings of facts by the trial Court that it is the several machete cuts inflicted on the deceased by the youths that attacked him in his house on 18-9-2016 that caused the death of the deceased. The trial Court relied on the evidence of the witnesses of both sides and documentary exhibits Q, Q1 and Q2 (order for post mortem examination, Death Report to coroner and Report of Medical Practitioner) in making these findings of fact. The judgment of the Court of Appeal did not consider if the findings are perverse and did not impeach them. It was silent on the medical evidence that the several machete cuts of the deceased caused his death, which evidence is contained in exhibit Q, Q1 and Q2 and the testimony of PW2, the medical officer that examined his corpse and issued exhibit Q2 and in the testimonies both prosecution and defence witnesses. It is obvious from the evidence of both sides that the death of the deceased and the fact that it was caused by the several machete cuts inflicted on him by the youths in his house is not in dispute on the evidence.
It is not in dispute on the evidence of both the prosecution and the defence, that the Amaorie Ozizza Youths Association Task Force with common intention to go and force the deceased to attend the youth association meeting holding at the village square, proceeded to his house for that purpose and that in the process, some members of the youths Task Force inflicted machete cuts on the deceased killing him. It is not in dispute on the evidence of both sides that when they set out to go and compel the deceased to attend their meeting, their common intention was to compel him by flogging him with canes and not to kill him, even though they were armed with axe, machete and sticks. The respondent stated in exhibit K that it is their duty as task force members to use cane on any youth who refused to attend meeting, that on 18-9-2016, task force members reported that some youths refused to attend meeting, “that when they received report that the deceased refused to come and said he had formed his own group, “we the entire youth members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”.
The trial Court believed the testimonies of PW3, PW4 and PW5 that they saw the respondent at the scene of crime when the crime was committed.
Apart from the evidence of PW3, PW4 and PW5 that they saw him amongst the youths that came back to force the deceased to attend the meeting, but who ended up attacking and killing him, his statement that he and others directed or instructed the youths to go and forcefully bring the deceased and his splinter group to their meeting, further makes him culpable and responsible for any crime committed by any member of youth groups in the process of executing the instructions of the respondent and others. This is so by virtue of Section 9 of the Criminal Code Law of Ebonyi State which provides thusly – “When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.”
What the respondent directed them to do include to lash the deceased and other youths that had refused to attend the youth meeting 12 strokes of the cane for not attending the meeting voluntarily and forcefully drag them to the meeting. Forcefully dragging or compelling a person to the meeting is obviously a physical assault of a person for the purpose of forcing him to attend the meeting. This is clearly the crime of assault. Lashing a person 12 strokes of cane obviously inflicts grievous bodily harm on him, which is another crime. So the respondent directed the youths to commit crimes to compel the deceased to attend the meeting he was unwilling to attend.
It is not in dispute that the deceased resisted his being caned and being forcefully taken to the meeting and took flight from his house with the rampaging youths in hot pursuit of him. When they caught up with him, they inflicted multiple matchet cuts on him resulting in his death. In the light of these facts, it is impossible to relieve the respondent of joint responsibility for the murder of Ali Agha by the youths he sent to cane him and force him to attend the youth meeting. It is immaterial that in committing the offence he counseled them to commit, they killed Ali Agha, clearly a probable consequences of carrying out the counsel of the respondent. The respondent who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.
The Court of Appeal did not fault the decision of the trial Court that forcing the deceased and others to attend the meeting of the youth association is unlawful and unconstitutional. The decision therefore subsists as correct and conclusive and binding.
The conviction of the respondent for the murder of the deceased, even though he did not personally inflict machete cut on the deceased, is justified by Ss. 8 and 9 of the Criminal Code Law, Cap 33, Volume 1 Laws of Ebonyi State which provides that
8. “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
9. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him.”
This Court has in a long line of cases applied these provisions. InMbang v. The State (2009) LPELR 1852 (SC), this Court held thusly- ” …In Ogbali & Anor v. State (1983) N.S.C.S. 156 at pp. 157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions. Bello J.S.C (as then was) said: “The only issue worthy of consideration on both appeals, in my view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. “I may point out straightaway that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section. Firstly, there must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; and thirdly that the death of that person was a probable consequence of the prosecution of the unlawful purpose.”
In Nwankwoala & Anor v. The State (2006) LPELR-2112 (SC), this Court held thusly- “Where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Patrick Ikemson & 7 Ors. V. The State (1989) 3 NWLR (Pt. 110) 455 at 466. Where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others also struck. See Ofor v. Queen (1955) 15 WACA 4 at 5; Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505 at 518. And in practical terms, common intention is incapable of positive proof. Its existence can only be inferred from the circumstances disclosed.”
Where the common intention to prosecute an unlawful purpose is not expressed by the group, it can be inferred from their joint execution of the unlawful purpose. In our present case, the task force of the Youth Association clearly stated their common intention to collectively go and physically compel the deceased and others to attend the community youth meeting.
The crime committed in the joint execution of an unlawful purpose need not be the common purpose that was commonly intended by the joint action. But if the crime so committed in the joint execution of the unlawful purpose is a probable consequence of the execution of the unlawful purpose, every participant in the joint execution of the unlawful purpose commits the crime irrespective of their specific role in the joint execution of the unlawful purpose.
It is not in dispute on the evidence of the prosecution and the defence that the Youths Task Force agreed to go out and physically compel the deceased. The respondent and others proceeded in their joint enterprise armed with sticks and machete and invaded the home of the deceased, chanting war songs. None of the members of the youth task force was merely present in the deceased’s house on the fateful day. They were not there by accident or as persons innocently passing by or as persons living there or as friendly visitors. So their presence there could not be rightly described as a mere presence. They came from the village play ground with the common intention to come to the house of Ali Agha and compel him to attend their meeting.
Instead of going there in a peaceful manner, they invaded the house armed with sticks and machetes, chanting war songs. The trial Court found as a fact that the deceased was killed by the members of the task force youths that invaded his home to force him to attend their meeting and that he died on the spot during that invasion due to the several machetes cuts inflicted on him by the youths task force members,
The trial Court found as a fact that PW3, PW4, PW5 and PW6 who were eyewitnesses of the killing of the deceased by the members of the Youths Task Force that invaded his home gave direct evidence of the death of the deceased during the invasion. PW3, PW4 and PW5 mentioned some of the persons they saw inflict machete cuts on the deceased. Exhibit Q2, the report of post mortem examination of the deceased’s corpse state that there were 8 multiple cuts on the body corroborating the testimony of PW2, the medical officer that examined the corpse, that-
“from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life. From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.
The trial Court found as a fact that – “Page 49: Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that death of the deceased is the unusual consequence of that enterprise. It is therefore clarion and crystal clear that the 1st to the 9th accused person are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased- Ali Agha to his creator”.
In our present case the common intention to carry out that joint enterprise is established by the evidence of their decision to go and compel the other youths including the deceased to attend the meeting and the evidence of their participation in the joint invasion of the deceased’s residence to force him to attend their meeting. By their joint invasion of the home of the deceased to force him to attend their meeting, each of them became responsible for anything done by any member of the group to force the deceased to go and attend their meeting. In Eyorokoromo & Anor vs. The State (1983) LPELR-1188 (SC), Ubierho vs. The State (2005) 2 SC (Pt. 1) 18, Alarape vs. The State (2001) 2 SC 164, Mohammed vs. The State (1980) 3-4 SC 56 and several other cases this Court has repeatedly held that in a concerted attack to prosecute an unlawful purpose, it is not the law to look for the person who struck the lethal blow. Everyone who partakes in the attack is equally guilty of the crime committed during prosecution of the unlawful purpose.
The question whether each individual participant in the joint invasion had the intention that Ali Agha should be killed or injured during the invasion or process of compelling him to attend the meeting is irrelevant in determining the criminal responsibility of each member of the group for the killing or injury of Ali Agha by their acts to force him to attend their meeting. The prosecution has no burden to prove that each member of the group intended that Ali Agha should be killed or injured by their actions to force him to attend their meeting. The principle underlying criminal responsibility in cases where a person is accused or alleged to have on his own, singly committed an offence cannot apply to cases where a person is accused of committing a crime that occurred during the joint execution of an unlawful purpose that he and other persons had formed a common intention to prosecute.
What the prosecution must prove to establish the guilt of each member of the group for the killing of Ali Agha, is that the killing was a probable consequence of what the group did to force the deceased to attend their meeting. Once the evidence establishes that the killing of Ali Agha was a probable result of their actions to force him to attend their meeting, each of them is responsible for killing him, irrespective of who took what specific action amongst them and the individual intention of each of them concerning what should or can result from the actions of each member of the group.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The trial Court in its judgment found thusly- “Consequently the firm view of this Court is that based on the pieces of evidence of PW3, PW, and PW5, it is all the accused persons in this charge that perpetrated the acts of inflicting the deceased with the machete cuts that abruptly sent the deceased to his maker.
The PW2 who is the medical practitioner gave evidence to the effect that the deceased Ali Agha had multiple injuries and bled from several blood vessels and most of these multiple injuries were on the lateral part of the deceased which are used for defence.
The view of this Court that these multiple injuries on the deceased could not have been inflicted on the deceased by Ejike Obiahu alone while the other accused persons stood. Even if all the accused persons stood akimbo while Ejike Obiahu was inflicting cuts on the deceased, having come to the scene of crime with Ejike Obiahu for compelling the deceased to attend the proposed meeting of the youths of 2016, that would still have amounted to a criminal omission under Section 7 of the Penal Code (supra).
The further view of this Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him as harped and parroted by all the accused persons on the authority of Nwankwoala v. State (supra), Ejike Obiahu would only be the … which the other accused persons struck.
The firmly entrenched law that where persons have embarked on a joint enterprise are liable criminally for the act done in pursuance or furtherance of the joint enterprise unusual consequences arising from the execution of the joint enterprise.
Undoubtedly, on 18/9/2016, the accused persons embarked on the enterprise of going to the house of the deceased to compel him to come to the village square of Amaorie Ozizza to attend the youths meeting. There can be no modicum of doubt that the death of the deceased is the unusual consequence of that enterprise.
It is therefore clarion and crystal clear that the 1st to the 9th accused persons are all enmeshed in the mire of the acts that abruptly and prematurely sent the deceased — Ali Agha to his creator.
Consequently, the finding of this Court that the death of the deceased was caused by the acts of the accused persons.
Attention of this Court now swivels to the third ingredient of murder which the prosecution must prove in order to shout eureka. That is, that the act or omission of the accused persons which caused the death of the deceased was intentional with knowledge of death or grievous bodily harm was the probable consequence.
This Court has painstakingly enunciated the evidence of prosecution witnesses to the various accompaniment of exhibits which clearly disclose that multiple injuries were melted on the deceased by the accused persons with the aid of machetes. The only rationale that can stem from the acts of all the accused persons on the uncontradicted documentary and oral evidence before the Court is that the acts of the accused persons which caused death of the deceased were intentional with knowledge that death or grievous bodily harm was its natural or probable consequence.”
Considering the nature of the things done by the invaders during the execution of their unlawful purpose of forcing the deceased to attend their meeting, their killing him was clearly a probable consequence of their execution of the unlawful purpose. They had set out for the execution of that purpose armed with sticks, machetes and axe. They invaded the deceased’s home, commanded him to come out for them to lash him twenty strokes of the cane for refusing to honour their summons for the meeting. When the deceased refused to come out, they rushed into the house to hold him. The deceased escaped from the house and took flight. They followed him and inflicted several machete cuts on him. PW3, PW4, PW5 and one Uche Alli who tried to rescue the deceased from the youths’ task force members was also inflicted machete cuts.
After inflicting multiple machete cuts on the deceased till he became weak and lifeless, the members of the youth task force left, continued chanting war songs and proceeded to the village square. PW3, PW5 and one Ugochukwu Evo arranged and immediately carried the deceased on a motorcycle to the hospital. The medical doctor immediately examined the deceased and confirmed him dead. Exhibit Q2, the medical report of the examination of the deceased states that the corpse was received at the mortuary on 18-9-2016 at 1400 hrs (2pm), that the deceased died on 18-9-2016, that the corpse was examined on 25-11-2016 at 11.30 hrs (11.30am) and that the cause of his death was multiple machete cuts and hemorrhagic shock. PW2 the medical doctor that conducted the examination testified that-
“from observation, there were several cuts on the body of the deceased and their depths and lengths were dangerous to life. From the number of cuts on the deceased body, he died as a result of acute loss of blood both internally and externally. Those cuts could not have been self-inflicted because most of the cuts were on the lateral part of the body which is usually used for defence.”
The fact that the task force members invaded the deceased’s home armed with sticks, machetes and axe show that they invaded the house with the intention to inflict violence of any degree for the purpose of overcoming his resistance and force him to attend their meeting. It is clear from the foregoing facts that killing the deceased was a probable consequence of all that they did for the purpose of forcing the deceased to attend their meeting. As this Court held in State v. Oladimeji (2003) 7 SC 108 “if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary, for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder”.
Since the killing of Ali Agha is a probable consequence of what the respondent and other members of the youth task force did in the joint prosecution of their unlawful purpose, each member of that youth task force is guilty of the murder of Ali Agha, irrespective of which of them inflicted the actual machete cut that killed him. The law is settled that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is guilty of committing the offence. See Ubierho v. The State (2005) 2 SC (Pt. 1) 18 and Nwankwoala & Anor v. The State (supra).
In the light of the foregoing, the lone issue framed herein for the determination of this appeal is resolved in favour of the appellant.
This appeal has merit. It is hereby allowed. The judgment of the Court of Appeal sitting in Enugu in Appeal No.
CA/E/131C/2018 delivered on 1-8-2019 is hereby set aside. The judgment of the High Court of Ebonyi State at Afikpo, in Charge No. HAF/24C/2017 delivered on 15-10-2018, convicting the respondent for the murder of Ali Agha and sentencing the respondent to death by hanging by the neck is hereby restored and shall take effect accordingly.
MARY UKAEGO PETER-ODILI, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Enugu Division or lower Court or Court below, Coram: Misitura Omodere Bolaji-Yusuf, Joseph Olubunmi Kayode Oyewole JJCA and Monica B. Dongban-Mensen, JCA (as he then was), delivered on 1st August, 2019 which set aside the judgment, conviction and sentence of the High Court of Ebonyi State, sitting at Afikpo on a count of murder contrary to Section 319 (1) of the Criminal Code Laws of Eboyi State of Nigeria, 2009.
The details leading to this appeal are well set out in the lead judgment delivered by my learned brother, Akomaye Agim, JSC, the reasonings thereof, I agree with.
At the hearing on 23/9/2021, learned counsel for the appellant, A.O. Odum Esq adopted the brief of argument filed on 21/11/2019 wherein he distilled two issues for determination, viz:-
1. Whether the lower Court was right in holding that the appellant failed to prove that it was the act of the respondent that caused the death of the deceased.
2. Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal. (Grounds 2 and 3).
Learned counsel for the respondent, Roy O. Umahi Nwaeze Esq adopted the brief of argument filed on 18/12/2019 and adopted the issues crafted by the appellant.
I shall make use of Issue 2 of the questions raised as it is sufficient in the determination of this appeal.
ISSUE 2
Whether the appellant proved its case and the lower Court was wrong in quashing the decision of the trial Court and allowing the respondent’s appeal.
Advancing the arguments in favour of the position of the appellant, learned counsel contended that the three ingredients of the offence of murder were established beyond reasonable doubt at the trial Court and the lower Court was wrong to hold otherwise.
That the defence of alibi put forward by the respondent was not sustainable as the evidence proffered by the prosecution placed him at the scene of crime and at all times material. He cited Agbiti v Nigerian Navy (2011) LPELR-2944 (SC) P.53; Hambe & Anor v. Hueze & Ors (2001) 4 NWLR (pt.703) 372 etc.
That in the proof of conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprises need not be given as all that is necessary to be shown is a meeting of minds. He relied on Oladejo V State (2014) LPELR-22946 (SC) etc.
Learned counsel for the respondent contended by stating that the appellant’s case was full of inconsistencies and material contradictions and was not proved beyond all reasonable doubt and the respondent’s plea of alibi not investigated. He cited Adamu v State (2019) LPELR-46902 (SC), Anekwe v State (2014) 10 NWLR (pt. 1415) 353 at 379; Nnunukwe v The State (2004) All FWLR 201 etc.
That the respondent was entitled to the acquittal as the prosecution failed to prove some of the essential elements or ingredients of the charge. He cited Onuchukwu v The State (1998) 1 SCNJ 36 at 49 etc.
It is now well settled in law that the burden of proof is on the prosecution who must prove its case beyond reasonable doubt. This concept is embodied in the Evidence Act, 2011 as amended and it would help to quote it thus:-
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to 139 of this Act, on a person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant”.
It is trite that in order to discharge the burden of proof in a criminal case the prosecution must prove the ingredients of the offence with which the accused is charged beyond reasonable doubt. This well-established principle of law was reiterated by this apex Court in NWATURUOCHA V. STATE (2011) LPELR- 8119(SC) where it was held as follows:-
“In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify at the proceedings- Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged, Amadi v. The State (1993) 8 NWLR pt. 314 pg. 644 at pg. 668; Alor v The State (1997) 4 NWLR pt. 501 pg. 511.”
I agree with learned counsel for the appellant that the law is also firmly established that a conviction for murder would be sustained if the prosecution is able to prove the ingredients of murder beyond reasonable doubt. This principle of law was reiterated by this Court in AKINLOLU V. STATE (2015) LPELR-25986. To establish the offence of murder, the prosecution must prove beyond reasonable doubt that the deceased died. They must also prove the cause of death which cause must be traceable to an act or omission of the accused person and they must prove that the said act or omission of the accused person was intentional knowing that death or grievous bodily harm was a consequence. See ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270. See also Kada v State (1991) 22 NSCC (pt. ii) p. 592; State v. Danjummai(1996) 8 NWLR (pt. 469) p.660.”
From the record, there is no dispute the lower Court held that the first ingredient of the offence of murder has been established without any doubt, as the fact that the deceased had died is not in contention from the identification of the body of the deceased by his brother, the pictures taken and the medical examination carried out by the medical doctor.
In respect of the other ingredients of the offence of murder, the Court below found that the defence of alibi availed the respondent because the evidence of the prosecution witnesses did not place the respondent at the scene of crime and the alibi raised at the earliest opportunity. The Court below stated that the failure to investigate the alibi was fatal to the prosecution’s case.
The lower Court in coming to the above conclusion ignored the fact that the Respondent never set up alibi as defence to the charge in the true sense of the defence, either in his extra-judicial statement or in his viva voce evidence at the trial Court. It was his counsel who glossed over the issue in his final written address for the accused persons, he was particular in making the case for the 5th, 6th and 9th accused person. He never made alibi an issue in defence of the Respondent. Furthermore, considering the time and space the lower Court expended in dealing with the issue of alibi, one would think that it was an issue for the determination raised by the Respondent at the lower Court. But a cursory look at the briefs and submissions of Respondent’s counsel at the lower Court would reveal that it was never raised nor was it addressed. The only conclusion therefore is that the lower Court raised the issue suo motu.
This Court has had the opportunity of considering the issue of whether an appellate Court can suo motu raise issues at the judgment stage which the parties did not raise without stepping into the arena of conflict in a plethora of cases and I shall refer to a few. In AGBITI v. NIGERIAN NAVY (2011) LPELR-2944(SC) per Fabiyi, J.S.C P.53, the Court held:-
“The Court of Appeal while its judgment, suo motu, struck out grounds of appeal and related issues touching on jurisdiction without calling on parties to address it. An appellate Court cannot suo motu raise issues at the judgment stage which the parties did not raise without the perilous risk of stepping into the arena of conflict. That was what the Court below wrongly did. Such cannot be condoned See Hambe v. Hueze (2001) 2 SC 26 at 39; (2001) 4 NWLR (pt. 703) 372 at 388; Akintola v. Solano (1986) 2 NWLR (pt. 24) 598; Victino Fixed Odds Ltd. V Joseph Ojo & Ors (2010) SC (Pt. 1).”
Also inHAMBE & ANOR V. HUEZE & ORS (2001) 4 NWLR (PT. 703) P. 372, Per OGUNDARE, J.S.S (P.12, paras. A-F) the Court held:
“…It was the Court itself that raised those points in its judgment and decided the fate of the appeal on them and this without inviting the parties to address it on the point I think this is wrong. This Court has consistently frowned on this practices, In Ogiamien v. Ogiamien (1967) NSCC 190, 192, (1967) NMLR 245, 248; Sir Ademola CJN observed: “We note also that these objections were never raised by counsel and that they were formulated by the learned Judge himself in his judgment. No opportunity was given to counsel to argue the points, and throughout the various appeals on the case (Exhibit D), the Constitution of the Court was never challenged. This Court has pointed out on several occasions that it is wrong for a Judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.” Again Onwunalu & Ors v. Osademe (1971) ANLR 15 17, Coker JSC delivering the judgment of this Court observed: “As a general rule this Court has always regarded with disfavor the practice of a Court giving a decision on a point not argued before it. ”
From the record, it is seen clearly that there was positive evidence from PW3 which fixed the respondent at the scene of crime as one of the masterminds of the homicide. The respondent’s assertion that he was with the Chairman (6th accused) at the village square at the material time is not borne out of the evidence.
The finding by the lower Court at page 495 of the Records that the Respondent furnished the Appellant with the information of his whereabouts which was left to the Respondents to duly investigate is perverse. This is so because the above statement and oral testimony are bereft of any precision with respect to where he was, persons that he was with and what he was doing at the material time. There was therefore no lapse for the Appellant to explain. See ONUCHUKWU V. STATE (1998) 4 NWLR (PT. 547) 32. In IKUMONIHAN v. STATE (2018) LPELR-44362(SC) per AUGIE J.S.C (Pp. 35-40), the Supreme Court stated that:
“…to be worthy of investigation, the defence of alibi must be precise and specific in terms of the place that the Accused was and person(s) that he was with, and possibly what he was doing at the material time – see Ochemaje v. State (2008) 15 NWLR (Pt 1109) 57, wherein Tobi JSC said: it is not the law that the police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the police. The Accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law… Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witness or under cross-examination of the accused or his witness. A trial Judge will not take seriously a defence of alibi which is porous and cosmetic, (underlining for emphasis)
It was further held that in ADEBIYI V. STATE (2016) 8 NWLR (PT. 1515) 456, this Court held that the defence of alibi is not readily conceded to an Accused Person because, when properly established, it has the far-reaching effect of exculpating him from complete criminal responsibility. Nweze JSC further stated as follows: “To be entitled to this beneficent effect; such an Accused must raise it at the earliest opportunity, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the Accused Person – Above all, the said defence must be unequivocal as to the particulars of the Accused Person’s whereabouts and those present with him, It is only where such an Accused Person raised the defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it … and to disprove same …”
To be clear, there are instances where a failure to investigate an alibi may cast doubt on the reliability of the case for the prosecution, but in a case as this, where the Respondent was identified by three eye witnesses, there was a straight issue of credibility and I posit that the lower Court’s findings of facts were unreasonable or cannot be supported having regard to the evidence before the Court. If the alibi had been true, it would have been open to the Respondent to call witnesses in support of them and he did not do so. An accused person is perfectly and always at liberty to call his witnesses to establish his alibi. It is settled law that an accused has a duty to lead credible evidence in support of the defence raised. See JOSHUA V STATE (2000) 3 NWLR (PT. 658) 102.
In REV. KING v. STATE (2016) LPELR-40046 (SC) Per Ngwuta JSC, (Pp. 42-43), held that:-
“The burden of proof of alibi is on the accused person. See Gachi & Anor v The State (1965) NMLR 333 at 335; Nwosisi v. The State (1976) 6 SC 109. though proof is on the balance of probabilities. See Ozuki v. The State (1988) 2 NSCC 75. For an accused person to successfully plead alibi, the plea must be unequivocal, he must state the time, the place and the people who were with him at the time and place and he must raise the plea during investigation and not at the trial, so that the veracity of this statement to the Police to that effect can be verified. See Alami v State (1988) 2 NSCC 271; Obakpolo v. State (1991) 1 NSCC 271; Njovens v. The State (1973) NSCC 257 at 258.
The lower Court was therefore wrong when it posited that the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi. That cannot be the law in view of what is on ground.
The Respondent in his statement to the police at SARS Abakaliki merely stated that “We the entire youths members of Amorie Ozizza then resolved to go and bring the said Ali Agha and his group to the meeting, but I did not go with them”. The other surrounding facts as revealed by him in the statement make it improbable that he did not go with them, because he did not state why as a Vice-Chairman he did not go with the other youths after stating that it was a unanimous resolve of the Youths to go there after the deceased had disobeyed the task force. As one of the Youth leaders, what is believable is that together with his Chairman, they led the entire youths to confront the deceased for daring to say that he has formed his own group. He did not also state what he was doing at the village square while the entire youths moved to confront the deceased who had just challenged them.
It would have amounted to a wild goose chase to expect the police to investigate the purported alibi in any other way beyond the evidence already received from the Respondent and other witnesses who fixed the Respondent to the crime scene. This is particularly so when the Respondent did not mention those who saw him or were with him at village square at the material time, so there was nobody the police would have questioned to authenticate the veracity of the alibi. The defence in my view is a hollow afterthought.
In the case of HALADU v. STATE (2015) LPELR-26002 (CA) per Akeju JCA, (Pp. 28-29), it was held:
“…where however there is sufficient evidence to fix the appellant or accused person to the scene of crime at the time of its commission, the alibi is demolished and is not worthy of any investigation by police. See NJOVENS V. STATE (1973) 55 C 17, YANOR V. STATE (1965) 1 ALL NLR 193; CHEMWON V. THE STATE (1986) 2 NWLR (Pt 22) 33.”
The PW3, PW4 and PW5 in the course of their viva voce evidence identified the 9 accused persons, the Respondent inclusive as those who come to the residence of the deceased and killed him. PW3 and PW5 in their extra-judicial statement at the SARS office, Abakaliki at the earliest opportunity did mention the names of the youths that came and attacked the deceased in his house. They unequivocally mentioned that the Respondent was part of those who masterminded and supervised the killing of the deceased. The Respondent in his viva voce admitted that he responded to the traditional gong calling the youths for the meeting of 18/9/2016 and gives the impression by his extra-judicial statement that he was part of those who supervised the murder of the deceased. Interestingly also, the lower Court made a finding of fact that testimony of PW5 shows that the Respondent was present at the scene of the crime and nothing more. See page 497 of the Records. It is therefore surprising that the lower Court took the trajectory it did, by holding that there was no evidence adduced by the Appellant placing the Respondent at the scene of crime.
The lower Court impugned the evidence of PW5 in concluding that the Respondent did not participate in the alleged crime. The lower Court in making this finding concluded that the evidence of PW5 is not credible as it is wrought with inconsistency and that going by the mental state of PW5 his evidence was unreliable. The records do not support the finding that the mental state of the PW5 made reliance on his testimony risky. He never testified on oath that his oral evidence in Court was affected by his mental status.
The only allusion to his mental state of health was in relation to his extra-judicial statement which he testified that the facts were not all very fresh in his memory at that time due to the head injury he suffered. Even at that, there is no material contradiction between what he said at the investigation stage via his extra-judicial statement and what he said at the trial. More so, a person is not a competent witness as regards his own mental status. See Makosa v. The State (1969) 1 All NLR 363 and Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565. But where there is independent relevant admissible evidence confirmative of his mental status, the evidence given by him may be given some weight. See MOHAMMED V STATE (1997) LPELR-1902 (SC).
On the purported contradiction in PW5’s extra-judicial statement as against his testimony in Court as highlighted by the lower Court which relates to the level of participation of one Igwe Oko and Inspr Egwu Oku in the incident which led to the death of the deceased, I do not see that these alleged inconsistencies are material in any particular. They do not relate to the Respondent and anything the Respondent did or failed to do and so cannot help his case. Even if they were material contradictions, PW5 satisfactorily explained the seeming inconsistencies in both evidence and it is clear that the evidence of PW5 is believable and direct eyewitness evidence. His explanation is consistent with the evidence on record. What is material depends on the facts of each case, it must relate to the ingredients of the charge and relevant to a fact in issue to be material. For instance, in the case of IKEMSON & ORS V. STATE (1989) LPELR-1473 (SC) it was held:
“Contradiction should be on a material issue to amount to material contradiction- Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & Anor v. The State (1974) 9 S.C. 1 at p. 20 arises only when there are material contradictions.”
See Dibie V, The State (2007) All FWLR Pt. 363 p.83.
The lower Court also in resolving against the Appellant held that it is curious that the Appellant did not call one Uche Ali, whom the Court considered a vital witness, to testify. This finding of the lower Court is perverse and not borne out of the records. The question to answer is, who is a vital witness? Is Uche Ali a vital, witness? Are PW3, PW4 and PW5 who testified not vital’ witnesses? According to the Court in the case of ABDULLAHI V STATE (2018) LPELR-44455 (CA), it was held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“A vital witness is an eyewitness to the commission of a crime and/or a witness who can give very truthful and relevant evidence that would resolve the case one way or the other. In other words, a witness who gives evidence on what is logical and true is a vital witness. In the instant case, the mother of the second accused person not being the only neighbor of the appellant was not a vital witness capable of giving logical and true evidence. At any rate, the prosecution is not bound to call any and every person who was present at the locus criminis. It is bound to call only those witnesses who would give relevant evidence in proof of its case. See IZIREN V STATE (1995) 9 B NWLR (PT. 420) 385.”
The evidence shows that Uche Ali not being an eye witness to the murder of the deceased, is not a vital witness and the Appellant was right in not calling him as a witness. From Uche Ali’s extra-judicial statement, he only arrived at the scene of crime when the deed had been done. He only met the deceased in a pool of blood and he was only informed about the role Ejike played which amounts to hearsay. Furthermore, the PW3, PW4 and PW5 were direct eyewitnesses to the crime and were called to testify. Having testified to what they witnessed, it was not necessary and the Appellant was not bound to call Uche Ali as a witness. The law is that in the discharge of its burden of proof, the prosecution is not required to call every available, eye or particular witness. All that the law requires is that the prosecution should call or adduce evidence which proves the charge against the accused person beyond reasonable doubt. The prosecution therefore has the discretion to call only material witnesses whose evidence is sufficient to prove the charge as required by law. See OGBODU v. STATE (1986) 5 NWLR 294; AKPAN v. STATE (1992) 6 NWLR (248) 439; Udofia V. State (1981) 11-12 SC, 49 AT 63; INUSA v. STATE (1982) 13 NSCC 70 at 82. In USEN V STATE (2012) LPELR-20063 (CA). It was held that the law does not impose on the prosecution, the duty or function of both the prosecution and the defence and so it is not even bound to call every material witness but if requested such a witness must be tendered for cross-examination. If the Respondent considered the evidence of Uche Ali to be material, it could have called him to testify, which it failed to do, such failure should not be counted against the Appellant.
The lower Court also stressed that conspiracy was not proved from the extra-judicial statement of the PW5 since it was not proved that a physical meeting was held or that PW5 attended such meeting to know what was discussed thereat. The extra-judicial statement of the Respondent himself corroborated by other pieces of evidence is conclusive proof of the fact that a meeting was held where an unlawful purpose was hatched by the accused persons with the Respondent as one of the leaders. The Respondent at the earliest time when his memory was still fresh told the police, “I am the Vice Chairman of Amorie Youth Association … The taskforce members are empowered to use cane in the course of their duties. It is equally the duty of the task force members to… force members of the youth who refused to come for meetings… scheduled a meeting to be held at the village square… At a time while the meeting was going on, we discovered that some members were not present, so we sent the task force members to go and force them to come… After sometime, they came back and reported that when they got to them, they met one Ali Agha (deceased) who told them … that they have formed their own group we the entire youth members then resolved to go and bring the said Ali Agha and his group to the meeting…” The Respondent knew the natural result of such confrontation with the deceased who has challenged their authority. Resolving in the manner as they did to compel full-grown adults to attend a meeting against their wish and against their rights to freedom of association would naturally lead to a fracas which was capable of leading to grievous bodily harm or death. The Respondent cannot deny that he did not know that such would result from such confrontation.
To prove conspiracy or common intention, proof of a physical meeting or discussion of the unlawful enterprise need not be given. All that need to be shown is a meeting of minds. In OLADEJO V STATE (2014) LPELR-22946, Conspiracy was defined as
“an offence that is often deduced or inferred from the acts of the parties thereto which are directed towards the realization of their common or mutual purpose or agreement. See NJOVENS v. STATE (1973) 5 SC 17; DABOH v. STATE (1977) 5 SC 197; ERIM v. STATE (1994) 5 NWLR (Pt.346) 522; ODUNEYE v. STATE (2001) 2 NWLR (Pt. 697) 311 AT 332-333, and BALOGUN v. A-G OGUN STATE (2001) 30 WRN 123 AT 138; (2001) 14 NWLR (Pt. 733) 331 AT 353. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. It is enough for the prosecution to establish that the appellant and the accused persons had a common objective aimed at committing a crime, it suffices. The offence of conspiracy is rarely proved by direct evidence, but by circumstantial evidence and inferences from certain proved facts. A meeting of the minds to do or cause to be done an illegal act or a legal act by illegal means, is all is required to prove conspiracy.”
In Osareren v FRN (2018) 10 NWLR (pt. 1627) 221, the Court held thus:-
“Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what. Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.”
Placing the essential ingredients or elements of the offence of conspiracy in context to the facts of the present case where the Respondent was charged with the offence of murder alongside the other accused persons. The Respondent admitted that he was a vice Chairman of the irate youths and that “we the entire youth members” (which includes him) resolved to go and bring Ali Agha (the deceased) and his group. It was in the execution of that unlawful resolution that the deceased died. This was stated in his extra-judicial statement, Exhibit “K”. While PW3 identified the Respondent as one of the masterminds of the murder of the deceased, PW5 testified that the Respondent was there when the crime was committed. Clearly, the agreement and the meeting of the minds were established and the Respondent cannot claim not to be involved in the conspiracy because there was no mention of the specific role he played in the actual murder of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action. The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in the killing of the deceased. He cannot deny that he supervised the murder as a leader of the Amorie Ozizza Youths who carried out the action. The Court below was therefore wrong when it held that none of the witnesses actually identified or specifically pin pointed what the Respondent did to kill the deceased nor did they state in clear terms the role he played in killing the deceased. The evidence of PW3 that the Respondent was a mastermind of the killing is not a blanket statement. As a Vice Chairman, he was a supervisor of the murderous action which led to the death of the deceased. That much can be gleaned from his own statement.
I am at one with the trial Court that even if it was only Ejike Obiahu that inflicted the cuts on Ali Agha which killed him, on the authority of NWANKWOALA V STATE (2006) 14 NWLR (PT. 1000) 663, Ejike Obiahu would only be the hand with which the other accused persons struck. Interestingly, the lower Court in APPEAL NO. CA/E/130C/2018 actually acknowledged that the conviction of the Accused persons was based on Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State without considering the true intent and purport of the said provisions. The said sections provide that:
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
When a person counsels another to commit an offence, and an offence is actually committed after such Counsel by the person to whom it is given, it is immaterial whether the offence actually committed was the same as that counseled or in a different way, provided in either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed it by himself. ”
The Court had given a solid interpretation of Section 8 of the Criminal Code dealing with common intentions which is in pari materia with the provisions of Sections 8 and 9 of the Criminal Code Law, Cap.33, Volume 1, Laws of Ebonyi State in MBANG V. THE STATE (2009) LPELR-1852 (SC) AT 20-21 PARAS E-E, thus:-
“…in Ogbali & Anor v. State (1983) N.S.C.C. 156 at pp.157 to 158, this Court considered the implication of Section 8 of the Criminal Code dealing with common intentions. Bello J.S.C. (as he then was) said: “The only issue worthy of consideration on both appeals, in view is the question as to whether the convictions can be sustained under Section 8 of the Criminal Code which provides: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” I may point out straight away that to render two or more persons liable for murder by virtue of the provisions of the section, there must be evidence of the three elements that constitute the offence under the section. Firstly, there must be evidence that the accused persons had formed a common intention to prosecute an unlawful purpose together; secondly, that in furtherance of the execution of the unlawful purpose a person was killed in circumstances amounting to murder; thirdly that the death of that person was probable consequence or the prosecution of the unlawful purpose. ”
It is also in evidence that Amorie 0zizza Youths meeting had been banned from operating in the community due to their nefarious and notorious modus operandi which was the status quo until this particular meeting was called at the instance of an individual whom the deceased defeated in a political contest for the councillorship seat to actualize his plans of killing the deceased. The Youths in the course of executing the unlawful instruction went with machetes and cutlasses and were chanting war songs. If their intention was not to kill or cause grievous bodily harm why did they proceed with such dangerous weapons?
The record of Court shows the reverse of what the lower Court held. From the totality of the evidence led, the Appellant proved beyond reasonable doubt that the Respondent with his co-accused persons were at the scene of crime after having formed a common intention to prosecute an unlawful purpose of using extreme violence to force the deceased to attend a meeting that he did not intend to attend and in conjunction with one another, and in the prosecution of such purpose the offence of murder was committed.
In the circumstance, death of the deceased was the probable consequence of the prosecution of such purpose as the Respondent and his co-accused persons used machetes and cutlasses on the deceased to force him to attend a meeting, the lower Court was therefore under a legal duty to find the Respondent and each of this cohorts to have committed the offence of murder.
It has now become an elementary proposition of the criminal law that everyone is taken to intend the natural and probable consequences of his or her act. The consequence of an act is said to be probable if a reasonable man would consider its occurrence to naturally flow and be the normal effect of the act. See Afolabi v State (2016) LPELR-40300 (SC) P.19; Shazali v State (1988) 12 SC (pt. 11) 58; R v Dim 14 WACA 154 at 155; Yakubu v The State (1980) 3 – 4 SC 84 at 98.
From the above foregoing, it is abundantly clear that the Appellant herein proved its case beyond reasonable doubt as it has demonstrably proved all the ingredients of murder beyond reasonable doubt. The ingredients for murder which the Appellant established in the present case are: (a) That a person died; (b) That the death of that person was caused by the Respondent; (c) it was the Respondent’s act which caused the deceased’s death and it was done with the intention of causing bodily harm. And; (d) the Respondent knew that death or grievous bodily harm would be a probable, not likely consequence of this act.
The issues are resolved against the respondent and in favour of the appellant whose appeal is meritorious.
I allow the appeal and abide by the consequential orders made.
EJEMBI EKO, J.S.C.: The decision just delivered in this appeal by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, represents my views in the appeal. I hereby endorse and adopt the judgment.
The decision of the Court of Appeal appealed, not properly evaluating and considering the totality of the prosecution’s case, particularly the evidence of the PW.3, PW.4 and PW.5 – eye witnesses whose evidence not only fixed the respondent to the locus criminis but also fixed him thereat to the active roles resulting in the brutal killing of the deceased, was clearly perverse and unreasonable. The respondent’s testimony or defence evidence offered no effective rebuttal of the evidence of these three eye witnesses. It did not cast any reasonable doubt on the totality of the prosecution’s evidence to have warranted the lower Court resolving the bogus benefit of doubt in favour of the respondent.
On alibi, as a defence, I agree with the lower Court that –
“The defence, where raised presupposes that the accused person was somewhere else other than the crime scene at the time the crime was created.”
But that is how far I can go with the lower Court on this. It was, inspite of the credible and undiscedited evidence of the PW.3, PW.4 and PW.5 fixing the respondent to both the scene of crime and the alleged crime, most perverse and preposterous of the lower Court to hold that “there is no evidence adduced by the prosecution placing the respondent at the scene of crime”. There was. The evidence was abundant and overwhelming.
An accused person who pleads alibi has a duty, under Section 36 (1) of the Constitution, to give his prosecutor an opportunity to be heard in rebuttal on the plea. That is what the principle of audi alteram partem is all about. It works both sides in the administration of justice. Neither party shall deny the other that basic fundamental right to fair hearing. A defendant pleading alibi owes the prosecutor a duty not to deny the latter that basic constitutional right. Putting the prosecutor on notice of that plea gives him the opportunity and liberty to investigate the plea of alibi.
The lower Court appears to have, erroneously, shifted the evidential burden, the accused person has to cast reasonable doubt on the case presented against him by the prosecution. It is not correct, in law, as the lower Court held that “the onus is not on the accused person to satisfy the Court that the alibi on such evidence is established but for the prosecution to disprove the alibi”. The reasoning is completely bereft of any logic.
Firstly, what is alleged without proof can be denied without proof. Once the defendant, who raised the defence, fails to establish it then it does not behove or obligate the prosecution to rebut it. Secondly, the Evidence Act 2011, in Sections 131 and 132 provides that whoever desires the Court to give judgment to him as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; and that the burden of proof lies on that person who will fail if no evidence at all were called on either side. Section 136 of the same Evidence Act, further provides that the party who pleads a particular fact has the burden of providing the proof as to the existence of that particular fact.
Accordingly, I allow the appeal. The decision of the lower Court No. CA/E/132C/2018 delivered on 1st August, 2019, unreasonable and perverse as it is, shall be and is hereby set aside. The decision and orders of the trial High Court in charge No. HAF/24C/2017 delivered on 15th October, 2018 are hereby affirmed and restored.
Appeal allowed.
MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment delivered by my learned brother, E. A. Agim, JSC, in draft, and agree completely that the appeal is meritorious for the sound reasons adumbrated therein, which I adopt.
The appeal is allowed by me too in term of the lead judgment.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice EA Agim, JSC, has accorded me the opportunity of reading before now, the judgment just delivered by His lordship. I agree with the reasoning reached therein, to the conclusive effect that the present appeal is meritorious, thus ought to be allowed.
Hence, the appeal is accordingly hereby allowed by me. I abide by the consequential orders thereby setting aside the judgment of the Court below delivered on August 1st, 2019 in Appeal No. CA/E/131C/and restoring the judgment of the trial High Court of Ebonyi State delivered on October 5th, 2018 in charge No. HAF/24C/2017.
Appearances:
A. O. Odum, Esq., with him, Terhemba Gbashima, Esq. and F. D. Okeoga, Esq. For Appellant(s)
Roy O. U. Nwaeze, Esq., with him, Maxwell Ezumezu For Respondent(s)
