THE STATE v. CHRISTIAN OKEREKE & ORS (2016)

THE STATE v. CHRISTIAN OKEREKE & ORS

(2016)LCN/8162(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/E/317/2010

RATIO

APPEAL: ISSUE(S) FOR DETERMINATION; THE IMPLICATION OF HAVING ANY GROUND OF APPEAL NOT COVERED BY THE ISSUE(S) RAISED

It is settled law that any grounds of an appeal not covered by the issue(s) raised, therein for determination must be deemed abandoned and struck out, See Ngilari v. Mothercat Ltd (1999) 12 SC (pt 11) 1 and Iyoho v. Effiong (2007) 4 SC (pt 111) 90 per. EMMANUEL AKOMAYE AGIM, J.C.A.

PRACTICE AND PROCEDURE: NO CASE SUBMISSION; WHEN CAN A NO CASE SUBMISSION BE MADE

That it is trite law that a no case submission shall be made where there is no evidence to prove the essential element of the offence charge or where the case of the prosecution has been discredited under cross-examination or where the case is manifestly unreliable that the reasonable tribunal can safely comment on it. per. EMMANUEL AKOMAYE AGIM, J.C.A.

APPEAL: ISSUE(S) FOR DETERMINATION; THE IMPLICATION OF HAVING ANY GROUND OF APPEAL NOT COVERED BY THE ISSUE(S) RAISED

PRACTICE AND PROCEDURE: NO CASE SUBMISSION; WHEN CAN A NO CASE SUBMISSION BE MADE

I will now consider how and on what basis the trial Court determined the no case submission. The part of the ruling of the trial Court deciding the no case submission reads thusly- “The law is that a no case submission can be made by an accused person and same sustained in either of these two circumstances namely;
1. Where the evidence laid by the prosecution witnesses falls far short of proving all the essential elements or ingredients of the offence charged.
2. Where the evidence of the prosecution witnesses has been so discredited as a result of cross-examination or that it is so manifestly unreliable that no reasonable tribunal could safely convict on it. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CRIMINAL LAW: CHARGE OF MURDER; THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER

In this charge of murder against the accused persons, the essential ingredients of the offence for which the prosecution is expected to prove in order to prevent the upholding of the no case submission and the calling on the accused persons to enter into their defence on the limb of the principles are namely;
(a) That the deceased has died.
(b) That the death of the deceased has been as a result of the act or action of the accused person(s).
(c) that the act or action of the accused person(s) was intentional with knowledge that death or grievous bodily harm was its probable consequences. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CRIMINAL LAW: WHETHER WHERE MORE THAN ONE PERSON ARE ACCUSED OF THE JOINT COMMISSION OF A CRIME, IT IS ENOUGH TO PROVE THAT THEY ALL PARTICIPATED IN THE CRIME
It is trite law that where more than one person are accused of the joint commission of a crime, it is enough to prove that they all participated in the crime. The Supreme Court in Nwankraroala & Anor v. The State (2006) LPELR- 2112 held that 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. 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 Ikemson & Ors v. The State (1989) 3 NWLR (pt 110) 455 at 466, and Adekunle v. The State (1989) 5 NWLR (pt 123) 505 at 518 relied on by the Supreme Court in the case of Nwankwoala v. The State (supra). See also Eyorokoromo & Anor v. The State (1983) LPELR – 1188 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

STATE Appellant(s)

AND

1.CHRISTIAN OKEREKE
2.BENEDICT ARO
3.CHUKWU AGHARANDU
4.IFEANYI NWAFOR
5.UKPAI NGA
6.FREDRICK CHUKWU
7.CHUKWU ABIA
8.PHILIP ANYERU Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 23-10-2007, an information was filed in the High Court of Ebonyi State, in Ivo Judicial Division, Isiaka commencing a criminal case, charge No HSK/3C/2007, against the respondents herein, Chukwu Abia (as 7th accused) and Philip Anyeru (as 8th accused). The charge contained one count of offence as follows-
COUNT 1: STATEMENT OF OFFENCE
Murder contrary to Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Eastern Nigeria, 1963 as applicable in Ebonyi State.

PARTICULARS OF OFFENCE
CHRISTIAN OKEREKE, BENEDICT ARO, CHUKWU AGHARANDU, IFEANYI NWAFOR, CHUKWU ABIA, UKPAI NGA, FREDRICK CHUKWU AND PHILIP ANYERU on the 17th day of June, 2006 at Ishiagu Community in Ivo Judicial Division murdered JOHN OTI”.

The record of this appeal show that proceedings in this case continued in the Abakaliki Judicial Division of Ebonyi State High Court at Abakaliki as charge No. HAB/6C/2008. The accused persons were arraigned on 28-7-2008 at Abakaliki. Following their plea of not guilty, trial commenced. The prosecution adduced evidence through four witnesses (PW1, PW2, PW13 and PW4) in support of its case. At the

close of evidence by the prosecution, Learned SAN for the accused made a no case submission. The trial Court, after considering the arguments, of, both sides; on 29-7-2010 rendered its ruling. It upheld the no case submission in respect of, the respondents herein (1st to 6th accuseds at the trial) and dismissed it in respect of the 7th and 8th accuseds (Chukwu Abia and Philip Anyeru). The concluding part of the ruling reads thusly-In the case of Idiok vs. State (2006) 12 NWLR (pt. 993) 1 at pages 4 – 5 ratio 1 the Court of Appeal held: “… To establish that the accused person killed the deceased, the prosecution must adduce cogent evidence linking the accused with the death of the deceased showing either a positive act or a negative omission of the accused causing injury to the deceased, which in turn resulted directly in the death of the deceased.” In the absence of any direct evidence linking the other accused persons to the death of the deceased apart from the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru who were directly implicated with the death of the deceased by the evidence of the PW2 as no other evidence against the other

accused persons as to the committal of the offence was proved, I am therefore of the view that the no case submission can succeed partly on that ground. The consideration of the 3rd limb of the ingredient of the charge at this juncture may no longer be necessary so I shall no longer bother to do so. Likewise, the contradictions in the evidence of the prosecution witnesses as raised by the defence counsel is not on my view material enough now to raise doubts in my mind regarding death of the deceased. For all the reasons I had above given or for any of them, I uphold the no case submission only to the extent that I had, earlier on stated. In the final analyses and because there is no evidence linking the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons to the death of the deceased even though some of them were identified at the scene of the incident on that day, each of those accused persons above mentioned are hereby discharged. The prosecution having made out a prima facie case against the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru respectively, these remaining two accused persons should enter into their defence in this present charge No.

HAB/6C/2008 and as I said earlier on the other accused persons are hereby discharged.”

Dissatisfied with this part of the ruling upholding the no case submission in favour of the 1st to 6th accuseds (respondents herein) the prosecution on 5-8-2010 commenced this appeal No CA/E/3/7/2010 by filing a notice of appeal containing 3 grounds for the appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows- appellants brief, respondents brief and appellants reply brief.

The appellants brief raised one issue for determination as follows- “Whether the trial Court was justified to discharge the respondents on the ground that there was no evidence linking them with the murder of the deceased when the no case submission on their behalf was solely predicated on discredited evidence”
The respondents in their brief adopted the single issue raised in the appellant’s brief.

The respondents in their brief raised and argued a preliminary objection to grounds 1 and 3 of this appeal. I will consider this objection before I proceed to determine the merit of the sole issue raised by both parties for the determination of this

appeal on the basis of ground 2 of this appeal.

Learned SAN for the respondents contended that grounds 1 and 3 of the grounds of appeal, not covered by any issue for determination, are deemed abandoned and should therefore be struck out, that the appellant in his brief distilled a single issue which he tied to ground 2 of this appeal, that the appellant has admitted that he did not formulate any issue from grounds 1 and 3 of this appeal, that therefore, grounds 1 and 3 are deemed abandoned and ought to be struck out. For these submissions, Learned SAN relied on the judicial authorities of Tsemudiara v. Messrs F.G.S & Co Ltd (2008) 7 NWLR (pt. 1085) 84 at 98 and APGA v. Ohakim (2009) 4 NWLR (pt 1130) 116 at 139.

The appellant did not respond to the argument, in support of the objection to grounds 1 and 3 of this appeal. Be that as it is, this Court is still bound to consider the merit of the said argument and not deem same as correct because there is no reply to it. See ECHERE VS. EZIRIKE (2006) All FWLR (pt. 323) 1597 at 1608 (SC) per Onnoghen JSC and Ogbuagu JSC at 1610 and TRACTOR & EQUIPMENT (NIG) LTD & ORS VS. INTEGRITY CONCEPTS LTD & ANOR

(2011) LPELR – 5034 (CA).

It is glaring that the appellant indicated in its brief that the sole issue it framed for determination is derived from ground 2 of this appeal. By the express mention of ground 2, grounds 1 and 3 are excluded as the source of that sole issue. They expressly opted not to formulate any issue from grounds 1 and 3 of this appeal. As it is, I agree with the Learned SAN for the respondents that grounds 1 and 3 of this appeal have been abandoned by the appellant and ought to be struck out. It is settled law that any grounds of an appeal not covered by the issue(s) raised, therein for determination must be deemed abandoned and struck out, See Ngilari v. Mothercat Ltd (1999) 12 SC (pt 11) 1 and Iyoho v. Effiong (2007) 4 SC (pt 111) 90
Grounds 1 and 3 of this appeal having been abandoned are hereby struck out. Having determined the preliminary objection, I will now determine the merit of this appeal.

Learned State Counsel has argued that the ground relied on by the respondents for their no case submission at the trial was that the evidence adduced by the prosecution was so discredited by cross examination or manifestly unreliable that no Court

could safely convict on it, that the trial Court decided the no case on the basis of a different ground, namely, that the evidence adduced by the prosecution did not prove all the ingredients of the offence, that the trial Court was wrong to have decided the no case submission on the basis of a ground not relied on by the respondents for their no case submission, that both parties were not heard in respect of the ground relied on by the trial Court in determining the no case submission, that the prosecution was entitled to be heard in respect of the said ground relied on by the trial Court for its decision, that deciding the no case submission on a ground the appellant had no opportunity to be heard constitutes injustice and caused a miscarriage of justice as the appellant’s right to fair hearing is violated, that the decision of the trial Court, that the contradictions in the evidence of the prosecution witnesses are not material enough, means that the respondents’ no case submission on the ground of discredited evidence failed, that since the trial Court did?not uphold the no, case submission on the ground relied on by the respondents that should have been

the end of the road for it, that the trial Court had no business considering a different ground and upholding it on the different ground, For these submissions, the Learned Chief State Counsel relied on the judicial authorities of State v. Oladimeji (2003) 14 NWLR (pt 839) 57 and Nsiegbe v. Mgbemena (2007) 10 NWLR (pt 1042) 364.

Learned SAN for the respondents has argued in reply that the appellant misconceived the law on when and how a Court can raise and decide an issues suo motu as restated in Ikenta Best Nig. Ltd v. A-G Rivers State (2008) 6 NWLR (pt 1084) 612 at 642, that the issue before the trial Court was whether a prima facie case was made out against the respondents, that this entailed an examination of the evidence led by the prosecution to find out if it established a case against the accuseds, that the trial Court examined the evidence adduced by the prosecution and decided that there was no direct evidence linking the respondents with the offence, that those facts showed that two persons only attacked the deceased, that the trial Court drew the inference from the facts presented in evidence, that the respondents had no hand in the death of the

deceased, that it does not matter if the respondents did not rely on this ground for their no case argument and the appellant did not address on, it, that the Court is not bound by the arguments of parties and is free to consider all issues arising from the evidence, that the trial Court considered the principle of law applicable in a no case submission, that the appellant is wrong to complain, that the, trial Court decided the matter on a ground not canvassed before it and that the no case submission was decided by the trial Court on the basis of an inference which it is entitled to draw.

Learned Chief State Counsel has replied on point of law that the entitlement of the Court to draw inferences and conclusions from the evidence before it cannot justify its determination of a case on a ground not relied on by the parties and in respect of which it did not hear the parties, that it can rightly do so only if it had invited the parties to address it on the issue, that the ground on which the respondent relied on for their no case submission and the one relied on by the Court for its decision are not the same as they have different considerations and legal

colourations and are disjunctive.
Let me now consider the merit of the above arguments.

I think that it will help a better treatment of the lone issue for determination in this appeal to reproduce the no case submission of the respondents at the trial and the relevant portion of the ruling of the trial Court that decided the issue. Because it is short, I will reproduce all of it. The record of this appeal at pages 48 to 50 reads thusly- “Learned counsel for the accused, persons says that they wish to make a no case submission in this matter that they are relying on CPL?Section 286 applicable to Ebonyi?State and the cases of Ibeziako vs. C.O.P (1963) 1 All NLR 61, Mohammed vs. State (2007) 7 NWLR (pt.1032) 152; Ekwunugo vs. F.R.N (2008) 15 NWLR (pt 1111) at 69. That it is trite law that a no case submission shall be made where there is no evidence to prove the essential element of the offence charge or where the case of the prosecution has been discredited under cross-examination or where the case is manifestly unreliable that the reasonable tribunal can safely comment on it. That they will to rely on the 2nd arm of the principles above what is to the effect

that the case presented by the prosecution has been manifestly discredited under cross-examination or manifestly no reasonable tribunal can rely on it. Learned Counsel submits that where it is shown that investigation was not properly conducted by the police, the Court should hold that there is no case for trial. And that is more so in a murder trial. Refers the Court to the evidence of the IPO who is the Pw4 that the gaps left by him are numerable but just to cite by a few. That Exhibit K holds?the key to resolving this matter. That the police did not investigate Exhibit K. That if the IPO had taken extra care to investigate those that were named in Exhibit K including the son of the deceased man, it could have unraveled the case. The statement as the 8th?accused person claiming that he is being framed up and who named a person who has framed it up were not investigated. See the case of Aituma vs. State 2007 5 NWLR (pt 1028)466 at 484, See also the case of Aigbebion vs. State (2007) 7 NWLR (pt 666) 686 that the accused persons are not expected to enter this box to do what the police who are part of the prosecution failed to do. The answer is no as to do that will

amount to saying that police investigation are unnecessary as the evidence of the IPO is a necessity as a very important evidence of the prosecution. As no murder trial is concluded without the thorough investigation of the police. See the case of Aituma vs. State supra. Learned counsel urged the Court to hold that the prosecution case failed because of the obvious doubt arising from the non investigation of the statements of some of the accused persons and for that reason, the evidence is manifestly unreliable. Urge the Court to upheld the submission of no case by the accused persons.”

It is glaring from the no case submission reproduced above that the accused persons, recognizing that there are two alternative grounds upon which a no case submission can be made, expressly chose to rely on the ground that the evidence adduced by the prosecution had been so discredited by cross-examination, or that it is so manifestly unreliable that no reasonable tribunal could safely convict on it. But after making this choice, it proceeded to rather argue on an entirely different ground outside the generally recognized two alternative grounds for making a no case submission.

The ground he argued is that where it is shown that an investigation was not properly conducted by the investigating police officers, there is no case for trial. There is an obvious difference between the notion that the evidence adduced by the prosecution has been so discredited by cross-examination or that it is so manifestly unreliable that it cannot afford a basis for a conviction and the notion that there is no case for trial because investigation of the allegation of commission of a crime has not been concluded or has not been properly conducted by the investigating officers. The first notion deals with an assessment of the evidence produced by an investigation, whether complete or incomplete, properly or improperly conducted and does not concern itself with whether the, pre-trial processes were complete and the case had become ripe for trial. The argument of Learned SAN for the accused that there is, no case for trial because investigation was not properly conducted by the investigating police officers cannot qualify as an argument that the evidence adduced by the prosecution has not made out a prima facie case that warrants to be rebutted by the

accused. Such an argument cannot in law qualify as a no case submission. By so arguing, the accused not only abandoned the ground they had elected to rely on for their no case submission, they abandoned the no case submission altogether.

under cross examination or manifestly unreliable as no reasonable tribunal can convict on same. Though the defence is entitled to rely on any of the above two principle but the law requires that for an accused person to succeed on a no case submission, he has to show that one or all the ingredients of the offences for which he has been charged with had not been established from the totality of the evidence adduced. See the case of Aituma vs. State 2007 5 NWLR (pt 1028) 466 at 471 ratio 5. To be able to do that the Court will therefore bent backward to consider the essential ingredients of the offences charged against the accused persons. In this charge of murder against the accused persons, the essential ingredients of the offence for which the prosecution is expected to prove in order to prevent the upholding of the no case submission and the calling on the accused persons to enter into their defence on the limb of the principles are namely;
(a) That the deceased has died.
(b) That the death of the deceased has been as a result of the act or action of the accused person(s).
?(c) that the act or action of the accused person(s) was intentional with knowledge that

death or grievous bodily harm was its probable consequences.
With regard to the first essential ingredient to be established by the prosecution which is that the deceased has died, the evidences of the PW2 and PW3 are very relevant the PW2 stated in his evidence before this Court on 14th July, 2009 that from the place he hid himself inside the plantain plantation, he was able to hear when the 7th accused person, Chukwu Abia directed that if Chief John Oti (the deceased) messed up he should be shot. And immediately he heard a gunshot and PW1 the wife of the deceased started shouting that the 8th accused person Philip Anyaeru, has killed her husband. That when he was satisfied that there were no persons around, he came out from his hiding place walked through the path and saw the deceased him laying on the ground lifeless with blood covering his entire body. PW3 the medical doctor who performed the post mortem examination of the body of the deceased testified that he went to a mortuary along Enugu Port Harcourt Road with the PW1 and one Mr. Aja now late including a police officer in charge of the case where the body of the deceased was deposited and that it was PW1

that identified the body of the deceased to him. These pieces of evidences in my view has satisfied the para of the first limb of the essential ingredient of the offence charged. On the prove of the second essential ingredient of the charge against the accused persons, the PW1 in her testimonies on 1st day of June, 2009 stated as follows:- As they were chasing us, my husband John Oti turned back and asked them what he has done, it was then that Chukwu Abia (the 7th accused person) ordered Philip Anyeru (the 8th accused person) to shoot my husband. Immediately he made the order, the said Philip Anyeru shot my husband and he fell down, then Chukwu Abia (the 7th accused person) used his matchet and cut his leg. The PW2 also stated that it was the 8th accused person that shot the deceased on the order of the 7th accused person. Regarding this second limb of essential ingredient of the offence as charged the 7th and 8th?accused persons have been implicated by the testimonies of the 1st and 2nd prosecution witnesses. The 1st PW also identified the 1st, 2nd, 3rd and 6th accused persons as those who were seen at the scene of the incident on that day. Likewise, the

PW2 also identified that 1st accused person as a person he also saw at the scene of the incident, the 4th and 5th accused person were never mentioned by any of the prosecution witness as having been seen at the scene of the incident on that day.?The proof that is required from the prosecution to establish this second limb of the ingredient of the charge must be cogent. In the case of Idiok vs. State (2006) 12 NWLR (pt 993) 1 at pages 4 – 5 ratio 1,?the Court of Appeal held:
“……. To establish that the accused person killed the deceased, the prosecution must adduce cogent evidence linking the accused with the death of the deceased showing either a positive act or a negative omission of the accused causing injury to the deceased, which in turn resulted directly in the death of the deceased.”
In the absence of any direct evidence linking the other accused person to the death of the?deceased apart from the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru who were directed implicated with the death of the deceased by the evidence of the PW2 as no other evidence against the other accused persons as to the committal of the offence was proved, I am

therefore of the view that the no case submission can succeed partly on that ground. The consideration of the 3rd limb of the ingredient of the charge at this juncture may no longer be necessary so I shall no longer bother to do so. Likewise, the contradictions in the evidence of the prosecution witnesses as raised by the defence counsel is not on my view material enough now to raise doubts in my mind regarding death of the deceased. For all the reasons I had above given or for any of them, I uphold the no case submission only to the extent that I had earlier on stated. In the final analyses and because there is no evidence linking the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons to the death of the deceased even though some of them were identified at the scene of the incident on that day, each of those accused persons above mentioned are hereby discharged, the prosecution having made out a prima facie case against the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru respectively, these remaining two accused?persons should enter into their defence in this present charge No. HAB/6C/2008 and as I said earlier on the other accused persons are

hereby discharged.”

It is glaring from this portion of the ruling that the trial Court correctly directed itself that the two grounds upon which a no case submission can be made and sustained are alternative to each other and the fact that the Learned SAN for the accused had emphatically informed the Court that they were relying on the second ground namely, that the case presented by the prosecution had been manifestly discredited by cross-examination or is manifestly unreliable as no reasonable tribunal can convict on same. Inexplicably, the trial Court did not proceed to find out if the accused had established this ground for their no case submission. Rather the trial Court directed itself that the defense is entitled to rely on any of the two principles or grounds recognized by law for the making of a no case submission, but that for an accused person to succeed on a no case submission he has to show that one or all of the ingredients of the offence with which the accused is charged has not been established by the evidence of the prosecution. It then stated that it will bend backward to consider if the evidence adduced by the prosecution established all the

ingredients of the offence of murder, with which the accuseds were charged. The trial Court considered the evidence of PW1, PW2 and PW3 and held that the evidence linked only the 7th and 8th accused persons to the killing of the deceased, John Oti, that 4th and 5th accused persons were not mentioned as having been seen at the scene of the incident on that day, that the contradictions in the evidence of the prosecution witnesses pointed out by the Learned SAN for the defense were not material enough to raise doubts in its mind regarding the death of the deceased and that therefore there is no evidence linking the 1st, 2nd, 3rd, 4th, 5th and 6th accused persons to the death of deceased even though some of them were identified at the scene of the incident on that day.

It is also glaring that the trial Court did not consider the argument of Learned SAN for the accused that there was no case for trial because the investigation was improperly conducted by the police investigators. The trial Court did not even mention in passing the evidence of PW4 (the investigating Police Officer), and Exhibit K heavily relied on by the accused for their no case submission.

As I had held herein, the accused did not argue and therefore abandoned the ground that the evidence of the prosecution had been discredited by cross-examination or was so manifestly unreliable that it cannot be safely relied on to convict. The trial Court did not consider the evidence of the prosecution to find out if it was discredited by cross-examination and was manifestly unreliable. In considering whether the evidence adduced by the prosecution proved the ingredients of the offence, it held that- ?the contradictions in the evidence of the prosecution witnesses as raised by the defense counsel is not in my view material enough now to raise doubts in my mind regarding death of the deceased.”

It is obvious that the no case submission as made by the accused failed and ought to have been overruled since the accused had not argued and therefore abandoned the, very ground they emphatically chose to rely on for their submissions and the only ground of no case they argued, namely, that the case was not due for trial due to improperly conducted investigations cannot be a basis for a no case submission.

The trial Court of its own motion opted to consider if the

evidence of the prosecution established the ingredients of the offence with which the accused persons were charged and did not invite address from both sides on the point before reaching a decision on it.

The trial Court held that it was bending backwards to consider if the evidence of the prosecution established all the ingredients of the offence with which the accused were charged. The notion that it was bending backwards is an acknowledgment that it was not supposed to engage in such a determination because that was not the issue it was invited by the no case submission to determine. The accused by expressly electing to rely on the ground that the evidence is discredited or manifestly unreliable and arguing that there was no case for trial because the investigation was not properly conducted by the investigating police officers, gave notice to the prosecution and the Court of the issue it had raised to which the prosecution is to respond and which the Court had to determine. So, whether the evidence established all the ingredients of the offence with which the accused was charged was not in issue. Therefore the prosecution did not have ample opportunity to

exhaustively to address on the point, even though learned counsel for the appellant submitted tersely and flimsily that the testimonies of PW1, PW2 and PW3 established an unbroken link between the accused and the offence charged and so made out a prima facie case. He did not go further to show how that the link was established, maybe, because that was not the issue for determination at the moment. There, is no doubt that if the appellant had notice that the no case submission would be decided on that ground, it would have done more than the above flimsy assertion, by referring to specific pieces of evidence to show how they established the ingredients of the offence. Rather much of its argument replicando was to answer, the point argued by the accused, and therefore dwelt heavily in showing that the alleged inability of the investigating police officers to properly investigation the defences raised by the 7th and 8th accused person cannot be a basis for a no case submission, that it is rather a relevant factor in considering the merit of their defense at the close of the evidence of the defence and that it does not affect the fact that the evidence of PW1,

PW2 and PW3 establish a prima facie case against the accused. In the light of the foregoing, I agree with the submission of the learned Chief State Counsel that the determination of the no case submission by the trial Court on a aground different from the one the accuseds expressly chose to rely on and the one they relied on and argued, operated to the prejudice and discomfiture of the prosecution.

I agree with the submission of Learned SAN for the respondents that the issue before the trial Court was whether a prima facie case was made out against the respondents and the issue entailed an examination of the evidence led by the prosecution. But I do not agree with the Learned SAN for the accused that the evidence can be examined to determine if it linked the accuseds with the commission of the crime. The accuseds having expressly elected to rely on a particular ground out of the two alternative grounds and having relied on and argued a particular ground, the trial Court’s examination of the evidence of the prosecution and inferences of facts must be made for the purpose of determining the ground relied on and argued by the accuseds. The trial Court cannot

bend backwards to a ground that the accuseds elected not to rely on, raise and determine it without hearing any of the parties on it. This means that the issue of whether the evidence adduced by the prosecution established all the ingredients of the offence of murder was suo motu raised and determined by the trial Court without hearing any of the parties, when it was obvious that the no case submission of the accuseds had failed. Instead of overruling their submission, it assumed the task of making a no case submission for the accused on a ground they themselves had elected not to rely on in their submission. The approach and decision of the trial Court rendered its impartiality suspect as it created a real likelihood that the Presiding Judge was biased against the prosecution.

Learned SAN for the respondents has argued that the appellant is wrong to complain that the trial Court decided the matter on a ground not canvassed before it because the trial Court decided the matter on the basis of an inference, it was entitled to draw and drew from the evidence before it following the examination of such evidence. But the accused did not contend that the evidence

adduced by the prosecution did not link the accused with the death of the deceased. The ground upon which the accused chose to rely on for their no case presupposes that there exist evidence establishing the ingredients of the offence they are charged with but that it is so discredited by cross-examination or so manifestly unreliable that it cannot be relied on to convict. Also the ground they relied on and argued presupposes that there is evidence establishing the complicity of the accused in the commission of the offence with which they were charged, but since the defence put forth at the pre trial stage by some of them were not properly investigated, then there is no case for trial. In any case, the submission of Learned SAN for the respondent that the decision of the trial Court was based on an inference it was entitled to draw from the evidence before it is not correct. The evidence before it does not support that inference. The trial Court held that PW1 also identified the 1st, 2nd, 3rd and 6th accused (respondents herein) as those who were seen at the scene of the incident on that day, that PW2 also identified the 1st accused person (1st respondent

herein) as a person he also saw at the scene of the incident and that the 4th and 5th accuseds were never mentioned by any of the prosecution witnesses as having been seen at the scene of the incident on that day. The trial Court had held that PW1 and PW2 testified that the 8th accused shot and killed the deceased on the order of the 7th accused. The trial Court then held that “In the, absence of any direct evidence linking the other accused persons to the death of the deceased apart from the 7th and 8th accused persons namely Chukwu Abia and Philip Anyeru who were directly implicated in the death of the deceased by the evidence of PW1 and PW2 as no other evidence against the other accused persons as to the committal of the offence was proved, I am therefore of the view that the no case submission succeed partly on that ground.?

?The evidence shows that the respondents herein were not passively present at the compound of the deceased on that day, that they and the 7th and 8th accuseds did not meet coincidentally in the compound of the deceased on that day, that they were not goodwill visitors to the compound of the deceased on that day. PW1 testified in

chief that: ?When I came out I saw the 8th accused person opening the small entry gate when the 8th accused person succeeded in opening the small gate he then entered into our compound and was followed by the 7th accused person Chukwu Abia the 6th accused person Fredrick Chukwu also followed another person that enter is one Godwin Oreji Aja. When they entered others then followed them and entered. On their entry, they went and destroyed our GP tank As they were destroying the GP tank, I went and pleaded with them not to destroy it as it is from there that we fetch our water. At that stage, one Justice Iloabuchi Ivoke ordered them to go inside the house and bring out other properties. Some of the people that were with them on that day that I know by their names namely Philip Anyaeru who is from Ngwongwo Ishiagu; Chukwu Abia from Okue and an Ishiagu, Fredrick Chukwu from Okike Ishiagu, Christian Okereke from Anaeze Ishiagu others that were with them on that day but who are not here in Court are namely Godwin Oreji Aja from Okoro, Cyril Ivoke from Okwe, Chukwu Onu from Okue; Onu Chukwu from Okue; Philemon Onu from Ogwor; Justice Iloabuchi Ivoke from Amagu. Oti

Eke from Ihie Ishiagu. There are some people who are here whom I do not know their names but when police brought them for identification parade that I was able to identify them and they are Chukwu Agharandu from Amagu; Benedict Aro from Ogwo. When Justice Iloabuchi Ivoke ordered the group to go inside and bring out other properties, my husband came out from the sitting, room to outside and I then followed him, my brother Boniface Ukaji also followed as when my brother Boniface Ukaji was following as to the backyard he then disappeared. The 8th accused person Philip Anyaeru was the person that used his gun to chase us as we were running towards the backyard. Chukwu Abia who held a matchet also followed and chased us to the backyard. Also one Godwin Orieji Aja who was with a matchet also accused us. As they were chasing us my husband, John Obi turned back and asked them what he has done it was then that Chukwu Abia ordered Philip Anyaeru to shoot my husband. Immediately he made the order, the said Philip Anyaeru shot my husband and he fell down then Chukwu Abia used his matchet and cut his leg. Godwin Orieji Aja also used his matchet and cut my husband’s other leg.

I then asked Philip Anyaeru who is a close friend to my husband whether this is the way he has decided to pay the visit to see our new child as he earlier on promised.”

PW2 testified in chief that: “On that day, that the 17th day of June, 2006, as I was going back from my place of work and branched to go to his house but on reaching a junction called Onunkpu Amadi, I decided to take a short cut leading to the house of the late Chief John Oti I was then informed by people around there that there was same problem and I should not go. I was told by those people around there that they saw people with machetes, guns and stick on that short cut that I wanted to take. They then advised me to use an alternative road. I then became afraid and decided to take the major road to his house. I got to the compound of the late Chief John Oti and opened the pedestrians gate and entered the compound and also locked back the pedestrian gate. When I got inside the house of Chief John Oti I met him with his wife and their newly born baby sitting on their parlor and discussing. Because of the fears I entertained when I was going to their house I did not allow them to continue with

their discussion but told them what I heard when I was coming to their house and further told them that there was a problem in the town. As we were discussing we heard gun shot and I ran out from the house. As I came out from the house I saw the 8th accused person jumped through the fence of the compound into the compound. The 8th accused person was holding a gun. Immediately he jumped into the compound he then opened the pedestrian gate that I had earlier on locked and others entered. As soon as they entered they released gun shots into the GP tank in the compound and my sister that came out with me when I came out started shouting. One justice Iroabuchi Ivoke told the others that entered into the compound with them that they should enter and destroy properties in the house. When Chief John Oti heard the directives of Justice Iroabuchi Ivoke he then ran towards the backyard. His wife also followed him and also myself who equally joined them. As we were running the 8th accused was chasing us with a gun while the 7th accused person also joined in our pursuit with a matchet. One Godwin Orieji Aja who is not here also joined in pursuing us with a matchet. As we

were being pursued I ran into a plantain plantation and hid myself there, while Chief John Oti and his wife continued running as they were still being pursued by the 8th accused person and Godwin Orieji Aja including the 7th accused person. At that stage the 7th accused person directed that if Chief John Oti messed up, he should be shot and immediately I heard a gun shot and the wife started cried and passed the place I hid myself and to the place they were destroying the house properties. She continued crying and shouting until I stop hearing her cries and the noise of the destruction of the property. I then came out and peeped and saw that nobody was around. I walked through the path that the deceased passed and saw him laying on the ground lifeless with blood covering his entire body. I then raised alarm that people should come and help me. And as I was shouting the wife cried and came back to where I was. Later some people came to our rescue and they assisted us to carry the late Chief John Oti to Okue health centre which is not far from the scene of the incident. When the late John Oti was conveyed to the said Okue Health centre, I then decided to go home

to change my cloth which was soiled with the blood of the deceased. Before I came back to the health centre policemen had arrived there. The following morning the deceased was taken to the mortuary by the policemen, I did not make any statement in respect to the incident that I had just narrated neither was I invited to make any statement by the police. After about one month that the incident happened I was invited by the police at state C.I.D Abakaliki and Zonal police command Calabar and in those two places I volunteered a statement. I know the 8th accused person because he was the vice chairman of Ivo Local Government Area and he is also an indigene of Ngwogwo. The 7th accused person I also know very well as he is from the said village with me. I know also the 1st accused person whom we all call Alikoga. He is from Amaeze in Ishiagu. These three are the ones I know very other but other though I do not know them very well but I use to see them. It was during the identification parade of the accused person when I identified the 1st accused person and when I told the policemen that his name is Alikoga that the said policemen then told me during my statement

that they will not write his name as Alikoga as his correct name is Christian Okereke. It was then that I knew that the 1st accused who I only knew as Alikoga is also?called Christian Okereke, the police identification parade was also carried out that at Onueke Police Station, Ezza South L.G.A. I can identify the statement I made at the State C.I.D and the Zonal Police Command Calabar by my signature.”

The above testimonies establish that the 1st, 2nd, 3rd, 6th, 7th and 8th accused?together as a group invaded the compound of the deceased, destroyed some of his properties, were ordered by one of them (7th accused) to enter the deceased’s house and bring out his properties, and they chased the deceased, his wife (PW1) and brother (PW2). It was during their pursuit of the deceased that the 7th accused ordered the 8th accused to shoot the deceased. The 8th accused shot the deceased, who, as the evidence of PW3 shows, died from that shooting. It can reasonably be inferred from the group invasion of the deceased’s home, the group destruction of his properties, the chasing of the deceased and members of his family from his home by the group, that the members of the

group formed a common intention to invade the deceased’s compound, destroy his properties and pursue him and members of his family from his home. Each of these acts is unlawful. Therefore they formed a common intention to prosecute an unlawful purpose. The common intention of the group can be inferred from their acting as a group. See Nwankwoala & Anor v. The State (2006) LPELR-2112 (SC), Alarape V. The State (2001) 2 SC 114 and Adiele & Ors V State (2011) LPELR -8835 (CA).

It is beyond argument that as the evidence of PW1 and PW2 show, the killing of the deceased occurred during their prosecution of the said unlawful purpose. Considering the nature of the things done by the invaders and the fact that they executed the unlawful purpose armed with machetes and guns; the killing of a person in the compound they invaded was clearly a probable consequence of the execution of the unlawful purpose. The fact that the accused invaded the deceased’s compound armed with ‘ guns and matchets show that they invaded the compound with the intention to inflict violence of any degree for any purpose including overcoming resistance. See State V. Oladimeji (2003) 7 SC

108 and Mohammed & Anor v. The State (1990) 3-4 SC 56. In State v. Oladimeji (supra), the Supreme Court held that “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.”

The trial Court was therefore wrong in holding that there is no evidence linking the 1st, 2nd, 3rd and 6th accused persons to the death of the deceased even though they were identified at the scene of the incident on that day. Section 8 of the Criminal Code Law Cap. 33 Vol. 1 of the Laws of Ebonyi State, 2009 provides 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 deemed to have committed the offence.”
?So it matters not that non of the 1st, 2nd, 3rd and 6th accused persons ordered the shooting of the deceased or shot him. The relevant

fact that renders them complicit in the killing of the deceased in accordance with Section 8 of the Criminal Code Law is that they were members of the group that invaded the deceased compound, destroyed his properties and chased him and members of his family from his house. See Enyinnaya v. The State (2014) LPELR-(CA).
It is trite law that where more than one person are accused of the joint commission of a crime, it is enough to prove that they all participated in the crime. The Supreme Court in Nwankraroala & Anor v. The State (2006) LPELR- 2112 held that 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. 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 Ikemson & Ors v. The State (1989) 3 NWLR (pt 110) 455

at 466, and Adekunle v. The State (1989) 5 NWLR (pt 123) 505 at 518 relied on by the Supreme Court in the case of Nwankwoala v. The State (supra). See also Eyorokoromo & Anor v. The State (1983) LPELR – 1188 (SC).

I agree with the holding of the trial Court that the evidence adduced by the prosecution did not establish a prima facie case against the 4th and 5th accuseds (4th and 5th respondents herein) that would require them to lead evidence in rebuttal.

This appeal succeeds in respect of 1st, 2nd, 3rd and 6th accuseds. It has merit. It is accordingly allowed to that extent. The ruling of Ebonyi State High Court delivered on 29-7-20-10, per H.A. Njoku J. in charge No. HAB/6c/2008 upholding the no case submission of the 1st, 2nd, 3rd and 6th respondents herein, the finding that there is no evidence linking the said respondents with the death of the deceased, even though some of them were identified at the scene of the incident of that day and the order discharging the 1st, 2nd, 3rd and 6th respondents are hereby set aside. It is hereby ordered that the trial of the 1st, 2nd, 3rd and 6th respondents in charge No. HAB/6C/2008 shall continue before another

Judge of Ebonyi State High Court.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now, the comprehensive and elucidating lead judgment of my learned brother, Hon. Justice EMMANUEL?AKOMAYE?AGIM, JCA just delivered. I agree with the lucid reasoning and conclusion reached therein. The instant appeal matter has merit and it is accordingly allowed by me too. I abide by all the consequential orders made in the said lead judgment of my learned brother, Agim, JCA.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

Appearances

CHIEF EZE DURUIHEOMA (SAN) with him, JOE ONYENAKAZI, ESQ.For Appellant

AND

HON. A.N. NWANKWAGU with him, J.E. NWAONUMAH and E.C. ONSAKWEFor Respondent