UDOM SAMPSON UDO UKPE V. THE STATE (2012)

UDOM SAMPSON UDO UKPE V. THE STATE

(2012)LCN/5649(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of November, 2012

CA/C/207C/2010

RATIO

EVIDENCE: WHAT CONSTITUTES CORROBORATIVE EVIDENCE

On what constitutes corroborative evidence, it was held in The Queen v. Omisade & Ors. (1964) NMLR 67 at page 77 per Ademola C.J.N. that:

‘The position, to our mind, is this – the Judge must, ask himself whether or not he believes the evidence, then he must warn himself that it is unsafe to convict on it alone: he then looks for some additional evidence (not that of another accomplice) rendering it probable that the story of the accomplice is true and that it is safe to act upon it – R. v. Baskerville (4). It is, in our view, enough if the corroboration which is available supports the truth of the accomplice’s story and implicated the accused.” PER JOSEPH TINE TUR, J.C.A.

WORDS AND PHRASES: MEANING OF TAINTED EVIDENCE

To “taint” is 1. To imbue with a noxious quality or principle. 2. To contaminate or corrupt. 3. To tinge or affect slightly for the worse” hence, “tainted evidence” means Evidence that is obtained by illegal means.” See Blacks Law Dictionary, 9th edition pages 640 and 1590. PER JOSEPH TINE TUR, J.C.A.

EVIDENCE: DEFINITION OF WHO AN ACCOMPLICE OR A TAINTED WITNESS

In Ogunlana vs. State (1995) 5 NWLR (pt.395) 266,the supreme court defined who an accomplice or a tainted witness is at page 294 paragraphs “C-G” per Iguh, JSC:

“It seems to me settled that persons are accomplices to a crime who are participles criminis in respect of the actual crime charged whether as principals or accessories before or after the fact, See Omisade & Ors. v. The Queen (1964) NMLR 67; Njovens v The State (1973) 5 -7 SC 17; Jimoh Ishola v. The State (1978) 9 – 10 SC 81; (1978) 2 LRN 125; (1978) NSCC (Vol.2) 499 and William Idahosa v. R. (1965) NMLR 85. On the other hand, it has been said that the term “tainted witness” should be confined to one who is either an accomplice or who by the evidence he gives whether as a witness for the prosecution or defence, may be regarded as having some purpose of his own to serve. See Idahosa v. The State (1965) NMLR 85 and Jimoh Ishola v. The State, supra at p.509. I am prepared to accept that a tainted witness may be defined as a witness who may not in strict sense, be an accomplice, but who on giving his evidence is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to the corroboration of his evidence may appropriately be given.

It seems to me important, however to recall the admonition of Idigbe, JSC in Garba Mailayi & Anor. v. The State (1968) 1 All NLR 116 at 123 with regard to this class of witnesses described as “tainted”. Said he:-

“Recently, there has been a tendency among criminal lawyers to create a category of “tainted” witnesses. We however observed that the expression “tainted” is very loose and if its application is not kept within proper bounds, a great deal of confusion will be unleashed in an area of evidence which even now is fraught with difficulties.”

I must, with respect, endorse the above observation of Idigbe, JSC as sound and worthy of note. The application of this loose class of witnesses described as “tainted” must therefore be kept within proper bounds to avoid unnecessary confusion that may becloud this area of our law of Evidence. Having examined the questions of accomplices and “tainted” witnesses, I will now return to the first issue for determination in the appeal.” PER JOSEPH TINE TUR, J.C.A.

CRIMINAL LAW: CIRCUMSTANCES WHERE THE DISCHARGE OF AN ACCUSED PERSON WILL AFFECT THE DISCHARGE OF THE OTHER

In Chief Emmanuel Ebri v. The State (2004) 11 NWLR (Pt.885) 589 Niki- Tobi, JSC held at page 604 paragraph “C” to page 605 paragraphs “A-B” thus:

“The position of the law is that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convicting evidence, that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together, like Siamese twins at the umbilical cord with their mother.

In Umani v. The State (1988) 1 NWLR (Pt.70) 274, the trial judge discharged the 1st, 2nd, 5th, 6th and 7th accused persons on the charge of murder on the ground that the defence of alibi succeeded. He however convicted the appellant for murder because he rejected the defence of alibi. Although the court of appeal dismissed the appeal, the Supreme Court allowed the appeal by a majority. The court held that the evidence on which the learned trial judge has based his conclusion on the guilt of the appellant is the testimony of PW1, PW2 and PW3, testimony which in discharging the five accused person he has at the very least cast so much doubt. In that wise it is extremely hard to remove any doubt as to the guilt of the appellant.

In his leading judgment, Nnamani, JSC, said at page 287 and 288:

“Except perhaps for 3rd accused who is still at large I do not know who else was supposed to be in his company. The evidence on which the learned trial Judge has based his conclusion on the guilt of the 4th accused (appellant) is the testimony of the PW1, PW2, PW3, testimony which in discharging the 5 accused persons he has at the very least cast so much doubt. I find it extremely hard to remove from my mind doubt as to the guilt of the appellant. It has to be remembered that apart from the testimony of PW1, PW2, PW3 there is no other evidence linking the appellant with this crime … Such doubt exists in this case and I shall resolve it in favour of the appellant. Accordingly, I allow the appeal and set aside the judgment of the Kano High Court.” PER JOSEPH TINE TUR, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

UDOM SAMPSON UDO UKPE – Appellant(s)

AND

THE STATE – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The State filed information before the High Court of Justice of Akwa Ibom State holden at Abak Judicial Division on 27th February, 2008 against the following persons (1) Essential Udo Ukpe (2) Udom Sampson Ukpe (3) Joshua Ukpe (4) Annie Udo Ukpe under Section 319(1) of the Criminal code, cap.31 vol.II, Laws of Cross River state applicable to Akwa Ibom state of Nigeria for the murder of Friday Akpan Udo Udo “M”. The offence took place at Ikot Idem Udo village in Oruk Anam Local Government Area in Abak Judicial Division on 25th November, 1989. The suspects pleaded not guilty to the charge on 13th November, 1991.

The prosecution called eight witnesses and tendered exhibits among which were the extra-judicial statement of the suspects. The accused persons testified but called no witnesses. They all pleaded alibi as a defence. The learned trial Judge E.D.U. Idiong J., discharged and acquitted the 1st, 3rd and 4th accused persons on the grounds that their alibi were not investigated by the prosecution. On 8th day of November, 1996 the learned trial Judge found the 2nd suspect (now appellant) guilty of the murder and sentenced him to death. On 14th March, 2011 this court extended time for the appellant to appeal against the conviction and sentence. Two grounds attacking the judgment accompany the Notice of Appeal filed on 10th May, 2011.

Before I consider the issues for determination may I capitulate the facts that led to the murder of Friday Akpan Udo Udo “M” as garnered from the evidence of the prosecution witnesses.

Late Chief Udo Ukpe was the father of Essential Udo Ukpe (1st accused) and Udom Sampson Ukpe (2nd accused/appellant). Joshua Ukpe (3rd accused) was a brother of the late Chief and an uncle of the appellant. Annie Udo Ukpe (4th accused) was the wife of the late Chief. The family had a land dispute with the family of late Friday Akpan Udo Udo “M”. The dispute was resolved in favour of the deceased by the Chief District Magistrate) Court, Ukanafun.

The accused persons and the deceased are all from Ikot Idem Udo village. The father of the accused persons was the village head of Ikot Idem Udo.

On 25th November, 1989 at about 1:00pm the four accused persons in company of others who at the time of arraignment were yet to be arrested, went and surrounded the compound of Friday Akpan Udo Udo (deceased). In the presence of his son (Pw2 Ufok Friday Akpan Udo Udo), PW2’s eldest sister Mandu Friday and wife (PW3 Mrs. Ima Friday Akpan): The accuseds and the others at large were armed with sticks, matchets and guns. They forced their way into the deceased’s house. The deceased ran out to Nung Oku Ibiet and took shelter in the house of Ime Akpan Offiong (PW4) about 200 metres away. The accuseds pursued the deceased to the house of PW4. PW2 gave vivid account of how his father died as follows:

“When my father escaped to the house of Ime Akpan Offiong the accused persons saw him and pursued him. I ran after the accused persons to see what they were going to do to my father. When my father got to the house of Ime Akpan Offiong he locked himself inside the room. When the accused persons got to the house of Ime Akpan Offiong they broke open Ime Akpan Offiong’s door. The Father resisted them but they overpowered him, dragged out my father, beat him and stripped him naked leaving him with pants only. They beat up Ime Akpan Offiong. The accused then dragged my father to the house of Chief Udo Ukpe, torturing him as they were going. When they got to the house of Chief Udo Ukpe they dragged my father to back of the house. When we tried to enter the backyard of Chief Udo Ukpe’s house the 4th accused threatened to stone us if we did. Those of us who attempted to follow the accused to the backyard of Chief Udo Ukpe’s house were myself, my sister Mandu, my mother and my grand mother who, is now dead. The house of Chief Udo Ukpe was fenced round and has a gate.

When they dragged my father to the back of the house of Udo Ukpe they beat him and my father shouted calling on the names of the four accused persons. While my father was shouting the gate of the house of Udo Ukpe was locked. After my father had shouted for sometime he stopped. Later the 2nd accused person and Patrick Jack Ukpe came out from the backyard stained all over with blood. They chased us away and we ran away. At about 5p.m Ime Akpan Offiong came with some policemen. The policemen took us to the house of Udo Ukpe and forced themselves into the backyard of Udo Ukpe’s house. We went with these policemen. After a long search for my father the police eventually saw a pit latrine over which there was a recently erected small hut. The police pulled down the small hut and when they flashed a torchlight inside the pit latrine they saw some legs. Sunday Friday Peter and Udeme Amiang were lowered into the pit and they saw some stones, sticks and earth on the body in the pit. These people then tied a climbing rope round the legs of the deceased and with this they dragged out the deceased.

When the body of the deceased was dragged out I noticed that the right eye of the deceased was plucked out, there were stab wounds on the forehead and bruises all over the body. The deceased was also tied all over with the tie, tie ropes. I recognized this corpse to be that of my father. The police then carried this corpse to the Ikot Okoro General Hospital. At the hospital a postmortem examination was conducted on the body by a medical doctor. The deceased was then taken home for burial. I made a statement to the police in connection with this incident.

Before this incident there was a quarrel between my father and the family of the accused persons. The quarrel was over land. The matter was taken to the District Court and judgment was given in favour of my father.”

See page 28 lines 5-32 and page 29 lines 1-27 of the printed record.

Learned Counsel to the suspects Cross-examined PW2 who answered thus:

“Cross-examination by Mr. Okon:

When the corpse was dragged out from the pit latrine with a rope I carried that rope home. 25th November, 1989 was a Saturday and a National Environmental Sanitation Day. After the sanitation exercise there was a big market, which is an evening market which starts at 2p.m but people in my village did not attend this market that day they ran away because of this incident. The 1st accused is known as Essential Udo Ukpe alias Eseme Udo Ukpe alias Adiambat Udo Ukpe. It is not true that on 25th November, 1989 when the incident occurred the 1st accused was in his house at No.43B Independence Avenue Abak because I saw him along with the other accused persons. I do not know anybody by name Nsima Udom. I do not know whether it is true that one Nsima Udom saw the 1st accused person at Abak when the incident occurred in my village but I saw the 1st accused person.

The 2nd accused is called Udom Udo Ukpe alias Gideon Udo Ukpe. It is not true that at the time the incident occurred the 2nd accused was staying in his house at No.26 Creek Road, port Harcourt I saw the 2nd accused when he came to our compound and was among the accused persons who took my father from the house of Ime Akpan Offiong to the house of Udo Ukpe.

It is not true that my father was a maternal uncle of the 2nd accused. …I am a witness of truth and I was present when this incident happened. The four accused persons are among those who killed my father. Ime Akpan Offiong was the person my father usually hired to harvest palm fruits for my father on the land in dispute between my father and the family of Udo Ukpe.”

See page 29 lines 28 to page 30 lines 1-21 and page 32 lines 1-6 of the printed record.

Mrs. Ima Friday (PW3) wife of the deceased also gave evidence that:

“On 25th November, 1989 which was a National Sanitation Day I took part in the sanitation and after that the deceased came and sat with PW2 in the sitting room. I was in the kitchen. As I was in the kitchen with my mother-in-law I saw the deceased followed by PW2 running past the kitchen. When I called to him and he did not hear I went out to see what had happened. When I came out of the kitchen I saw all the accused persons with other people. The accused persons and those other people were armed with guns, matchets and sticks. They pursued the deceased and the deceased ran and entered the compound of Ime Akpan Offiong for safety. I ran after them into the compound of Ime Akpan Offiong. At the compound of Ime Akpan Offiong they fired the roof of Ime Akpan Offiong’s house, broke open Ime’s door and dragged the deceased out and stripping him to his pants. They dragged the deceased to their father’s compound by name chief Udo Ukpe.

PW2, my mother-in-law and I followed the accused persons to Chief Udo Ukpe’s compound. When they got to Chief Udo Ukpe’s compound they dragged the deceased into the compound and locked the gate. My mother-in-law raised an alarm and begged the accused to release the deceased to us. At this point the 4th accused warned my mother-in-law that if she did not get away, she would throw a stone at her. By this time the deceased was still shouting and we went and stood by a fence and from this angle I saw the accused persons tying the deceased. It was the 1st and 2nd accused persons who tied the deceased, the 3rd accused held the deceased while the 4th accused hit the deceased with an axe at the back of the neck and the tongue of the deceased came out. The deceased was pleading with the accused persons not to remove his eye and it was at this point that the 2nd accused drove a nail into the head of the deceased and the deceased could not shout again.

While we were standing and weeping the 2nd accused came out accompanied by one Patrick. There were blood stains on them and the 2nd accused was armed with a gun and he warned us that if we did not get away, he would kill us. We wept and left for home. When we get home one of the brothers of the deceased went and reported the incident to another of his brother. The brother of the deceased who reported the incident to the other is Monday Akpan and the report was made to Ekeke Akpan at Abak.

Apart from the accused Persons the persons I saw pursuing the deceased were Sekerema Udo Ukpe, Sunday Sampson Ukpe, Ifiok Sampson Ukpe, Ikoidem Sampson Ukpe, Idongesit who was a driver to chief Udo Ukpe and Idem Sampson Ukpe.

Apart from Idongesit no other person took part in this incident other than members of Chief Udo Ukpe’s family-

…The police used a torch tight to look inside the pit and inside the corpse of the deceased was found. With the use of a ladder the Police brought out the corpse from the pit I noticed that one eye of the deceased, the right side of the eye, was removed. I saw the nail that was driven into the deceased’s head and the ropes with which the deceased was tied.

The police accompanied by one of the brothers of the deceased conveyed the deceased to the Ikot Okoro General Hospital for a postmortem examination. Before this incident Chief Udo Ukpe and the deceased had a dispute over a piece of land. The matter went to Court and judgment was given in favour of the deceased and so the deceased built a house on this land. This house was not a dwelling house but place where palm fruits were usually stored.”

See page 33 lines 9-33 and page 34 lines 1-25 and page 35 lines 1-16 of the printed record.

Ime Akpan Offiong (PW4) in whose house the deceased had ran and taken refuge also testified as follows:

“I was at the backyard when the deceased ran into my house and locked in himself. I saw the 2nd accused, Ifiok Udo Ukpe, Sekerema Udo Ukpe, Imo Udo Ukpe, 1st accused, 3rd accused broke into the room where the deceased was and held the deceased. The deceased shouted to me for help. I rushed into the room where the 1st, 2nd and 3rd accuseds were struggling with the deceased. The 2nd accused held the deceased by the neck while the 1st and 3rd accused carried the deceased up and dropped him down violently. They wanted to carryout the deceased but I intervened and attempted to stop them. The 2nd accused then said if I did not allow them carry the deceased away he would shoot me. The 2nd accused then brought out a gun but I got hold of the gun and wrested it from him. I threw the gun down but the 2nd accused went and took it up again. When I wanted to take the gun from the 2nd accused again, he fired at the roof of my house. The 1st, 2nd and 3rd accused, Sekerema Udo Ukpe carried the deceased away. After that I saw the wives of chief Udo Ukpe carrying personal effects and running away. The wives of Chief Udo Ukpe whom I saw were Anie Udo Ukpe and the mother to the 1st accused. As I was in my house PW2 came and informed me that his father had been killed. I did not follow the accused persons when they carried the deceased away. When PW2 told me that his father had been killed, I went to the Ikot Okoro police station and made a report. On the basis of my report the police came to Chief Udo Ukpe’s compound, the scene of crime. This was about 8pm. They used a torch light in looking for the deceased and they found him inside a newly dug pit latrine. The corpse was brought out from the pit. When the deceased was brought out the deceased was tied across the chest and legs and the right eye of the deceased was plucked out. The police ordered us to carry the deceased to the Ikot Okoro General Hospital and, we did so. The deceased was kept there and the following morning a photograph of the deceased was taken.

Those who were present when the deceased was brought out of the pit latrine were PW2, PW3, Akpan Tom, Akpan Amiang peter, Udo Amiang peter, Udo Udo Amiang peter and myself. If I see the picture of the deceased I can identify it. Witness shown a picture and he identified it.”

See Page 29 lines 20-34 and page 40 lines 1-29 of the printed record.

Cross-examined PW4 answered thus;

“When the deceased was taken away from my house I came out to my veranda and watched them take the deceased away. The deceased was taken away in pants only because all his clothes were torn. I did not take the torn clothes to the police at Ikot Okoro but the police saw them when they visited the scene of the incident. When the deceased was taken away and I came out to the veranda I noticed that all those people who took away the deceased were the children of Chief Udo Ukpe.

… It is not true that the 1st accused person was in his house at No.43B Independence Avenue, Abak, at the time of the incident because I saw him in the village in the morning of that day on top of a motor cycle. It is not true that the 3rd accused was at his tailoring workshop at Ikot Okoro at the time of the incident because I saw him when he pursued the deceased in company of the others such as the 1st accused, the 2nd and 3rd accused persons, one Sekerema Udo Ukpe, Ifiok Udo Ukpe and the driver to Chief Udo Ukpe.”

See page 44 lines 16-24 and page 45 lines 2-15 of the printed record.

PW5 (Okeke Akpan Udo), a brother of the deceased was not present when the murder took place. But he was present when the corpse was retrieved from a pit latrine in the house of late. Chief Udo Ukpe. The witness described what he saw at page 48 lines 12 to page 49 lines 1 -7 of the printed record.

Monday Akpan Udo Udo (PW6) was also not present during the incident that led to the murder of Friday Akpan Udo Udo but was present when the corpse was retrieved from the pit latrine. PW7 was the IPO who tendered the various extra judicial statements of the suspects and other exhibits at the trial. The witness investigated the crime, made arrests and arraigned the accused persons to Court. PW7 admitted he did not investigate the alibi of the 4th suspect because there was nobody to direct him to her father’s compound at Uruk Ata Ikot Ebo. But he investigated the alibi of the appellant which he found to be false.

Dr. Victor Francis Ette (Pw1) performed post-mortem in the presence of PW2 and PW6 and made the following observations:

“The corpse was brought to the hospital on 25th November, 1989. The deceased was about 38 years old. The deceased was a male.

I observed that externally the body was wrapped with tie, tie rope and covered with re earth. On closer examination I saw a lot of lacerations on the face, the right eye was plucked off, the neck was thick and bruised. There were constrictions on the neck, chest, abdomen and right down to the legs where the deceased was tied. There was a deep penetrating stab would on the right lungs.

There were other minor cuts and bruises on the leg. The injuries could not have been self inflicted.

In my opinion death was caused by strangulation, asphyxia and the deep cut wounds, on the axilla which produced a condition known as haemopneumothorax.”

See page 26 lines 20 to page 27 lines 1-3 of the printed record.

PW8 (Alban Isaac Obot) was the station officer at Ikot Okoro when PW2 and PW2 and PW4 reported the murder on 25th November, 1989. He went to the scene with five police men from where the corpse was retrieved from a pit latrine in the house of chief Sampson Udo Ukpe around past 7:00pm in the evening with the help of a torchlight.

In his judgment the learned trial judge classified the events that led to the murder of Friday Akpan Udo Udo into three, namely, “(i) the scoop scene; (ii) the pursuit and capture scene and (iii) the murder scene.” See page 108 lines 14-19 of the printed record. His Lordship came to the conclusion that the testimonies of the eye witnesses to these three scenes were the son (PW2), the wife of the deceased (PW3) and PW4 (Ime Akpan Offiong).

His Lordship took into consideration PW2’s evidence that PW4 was the person his father used to hire to harvest palm fruits for him on the land in dispute. His Lordship further considered the evidence of PW2 (Ufok Friday Akpan Udo Udo) the son of the deceased and PW3 (Mrs, Ime Friday Akpan – wife of the deceased) and their relationship with the deceased and held that he had to treat same with caution because of the land dispute. (see page 109 lines 28 to page 110 lines 1-13 of the printed record. In regard to the pursuit and capture of the deceased in the house of PW4 his Lordship examined the evidence of PW2, PW3 and PW4. The learned trial Judge, reasoned that the evidence of PW2 and PW3 had to be treated with circumspection. His Lordship saw material contradictions between the evidence of PW2, PW3 and PW4 and rejected both. (See page 110. lines 14 to page 112 lines 1-4 of the printed record. Coming to the third classification, namely, the murder scene, the learned trial Judge examined the testimony of PW2 and PW3 and contrasted same with that of PW4. His Lordship held that, “…I have warned myself about the evidence of PW2 and PW3 and I take their evidence with a pinch of salt.” (P.112 lines 5 to page 113 lines 1-5 of the printed record). His Lordship concluded:

“…I do not believe that PW3 was able to see what each of the accused did to the deceased…” The learned trial judge then concluded at page 118 lines 1 – 10 of the printed record thus, “In the circumstances of the case I find PW3 a tainted witness and as such her evidence in relation to what each of the accused did to the deceased as she saw it from the fence overlooking the backyard to chief Udo Ukpe must be treated with considerable caution and must be examined with a tooth comb. It would be unsafe to convict the accused on such evidence without some corroboration, Mbenu v. State (1988) 3 NWLR (Pt.84) 618, and there was no independent witness who corroborated the evidence of PW3 on this point.”

The effect of the above conclusion is that the learned trial judge disbelieved the evidence of PW2, PW3 and PW4.

The learned counsel to the appellant formulated the following two question for determination.

ISSUE FOR DETERMINATION

3.1 Whether the trial judge was right in convicting and sentencing the appellant on circumstantial evidence when other accused persons were discharged and acquitted on the same circumstantial evidence.

3.2. Whether failure to properly investigate the defence of alibi in this case was not fatal to the prosecution’s case.”

The respondent formulated the following issues for determination:

“1. Whether the judge was right in placing reliance on the circumstantial evidence in this case in convicting and sentencing the appellant.

2. Whether the defence of alibi avails the appellant in this case.”

APPELLANT’S ARGUMENT:

ISSUE ONE:

Learned counsel to the appellant’s argument on issue one is that having discredited the evidence of PW2, PW3 and PW4 there was no circumstantial evidence to warrant the conviction and sentence to death of the appellant, citing Onah vs. The State (l985) 3 NWLR (pt.12) 236 at 244; State vs. Ogbubanji (2007) 13 WRN 1; Teper vs. Q (1952) A.C. 480 at 489; Adiele vs. The State (1995) 2 NWLR (Pt.577) 6; Ebri vs. The State (2004) 11 NWLR (Pt.885) 589. The learned Counsel urged that issue one be resolved in favour of the appellant.

ISSUE TWO:

On issue two learned Counsel referred to the extra-judicial statement of the appellant made on 25th November, 1989, and his oral testimony in court to show that the appellant had at the earliest opportunity raised the defence of alibi which the prosecution did not investigate, citing Eyisi & Ors. vs. The state (2000) 4 NSCQR 60 at 66; Onofowokan v. The State (1987) 3 NWLR (Pt.61) 538 at 541 and Onuchukwu v. The State (1989) 4 NWLR (Pt.547) 576 at 591 and Adejumo vs. Ayantaghe (1989) 3 NWLR (pt.110) 417. Counsel argued that the appellant should not have been treated differently from the 1st, 3rd and 4th suspects who had been discharged and acquitted for failure to investigate their alibi. Counsel urged that this issue should be resolved in favour of the appellant. That he should be discharged and acquitted.

RESPONDENT’S ARGUMENT:

ISSUE ONE:

Learned counsel referred the court to the evidence of the prosecution witnesses and the findings of the learned trial Judge to submit that the circumstantial evidence was irresistible, positive, unequivocal, unmistakable and conclusively pointed to the appellant as one of the persons that murdered Friday Akpan Udo Udo on the 25th November, 1989 in the house of chief Udo Ukpe in Ikot Idem Odo village in Oruk Anam Local Government Area of Akwa Ibom State. Reference was made to Peter vs. The State (1997) 5 NWLR (Pt.496) 625 at 641; Akpan vs. The State (2000) 12 NWLR (Pt.682) 607; Idowu v. The State (1998) 11 NWLR (Pt.574) 354 at 370; Amala vs. The State (2004) 2 NWLR (Pt.888) 520 at 555-556; Mohammed v. The State (2007) 11 NWLR (Pt.1045) 303 at 320.

The learned counsel to the Respondent argued that the evidence of PW2 and PW3 fixed the appellant at the scene of the crime. Besides, when the appellant came out of the backyard of the house of Chief Udo Ukpe with Patrick jack Ukpe, PW2 and PW3 saw them with blood stains. The appellant is the one who chased them away from that house. Circumstantial evidence was therefore proved beyond reasonable doubt. The court was urged to resolve issue one in favour of the Respondent.

ISSUE TWO:

Learned counsel drew this courts attention to the fact that the alibi raised by the suspect was investigated but found not proved. Counsel referred to the oral testimony of the IPO (PW7), the extra-judicial statement of the appellant and his oral testimony in court as well as the findings of the learned trial Judge, citing Ada vs. The State (2008) 13 NWLR (pt.1103) 149 at 166; Ndukwe vs. The State (2009) 7 NWLR (pt.1159) 43 at 82; Onuchukwu v. State (1998) 4 NWLR (Pt.547) 576 at 592; Idiok vs. The state (2008) 13 NWLR (Pt.1104) 225 at 242-243 and Ebenuhi vs. The State (2009) 6 NWLR (Pt.1138) 491 at 448. Counsel argued that the other accused persons were discharged and acquitted because the prosecution did not investigate their alibi. In the appellant’s case the alibi was investigated but found to be false hence his conviction and sentence to death. The Court was urged to dismiss this appeal.

REASONS FOR JUDGMENT:

In view of the evidence of the prosecution witnesses I have meticulously set out and considering the reasoning of the learned trial Judge in discharging and acquitting the 1st, 3rd and 4th accused persons, I believe it will be neater for me to determine the two issues together as argued by the appellant’s learned Counsel.

It is a fact that Friday Akpan Udo Udo was murdered on 25th November, 1989. The evidence by PW2, PW3 and PW4 was that the appellant (2nd accused) and 1st, 3rd and 4th accuseds with others at large committed the offence. The learned trial Judge discharged the 1st, 3rd and 4th accused persons because the prosecution did not investigate or disprove their defences of alibi The appellant’s alibi was not however believed by the learned trial Judge because PW7 (the IPO) testified that he visited No.26 Creek Road, port Harcourt, Rivers State where the appellant claimed he lived and was on 25th November, 1989 when the murder took Place in his father’s house at Ikot Idem Udo village in Oruk Anam Local Government Area of Akwa Ibom state. PW7 testified that he found nobody at this address called Friday Amadi (landlord) of that house whom the appellant said he was with on the day in question. Besides, the people PW7 met in that compound said there was no such person as the appellant living in that compound. The appellant made his extra-judicial statement (Exhibit “4”) on 20th December, 1989 and mentioned Friday as his landlord. The appellant testified on 17th November, 1995 almost six years afterwards as DW2. Nothing prevented the appellant from obtaining an order from the lower court to issue summons to Friday Amadi to come to Court and testify in his favour to disparage the evidence of PW7. In my humble view, there was no evidence from the appellant to rebut the evidence of PW7. The effect is that the appellant lied on the issue of his alibi. The learned trial judge was at liberty to believe PW7 and disbelieve the appellant on the issue of alibi. But the mere fact that an accused told lies is no evidence that he committed the offence with which he is charged. See Akinkumi v. The State (1987) 3 SCNJ 30 at 34; Anekwe v. The state (1976) SC 255; Boy Muka v. The State (1976) 9 – 10 SC 105; Ateji v. The State (1976) 2 SC 29; Omogodo v. The State (1981) 5 SC 21. In Okpere v. The State (1971) 1 All NLR 1 the Supreme Court held per Coker, JSC at page 3 thus:

“But it has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relive the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubt. (See Woolmington v. Director of Public Prosecutions (1)).”

Even if the appellant told lies concerning his defence of alibi, the prosecution must still link him to the deceased’s murder. The learned trial judge reasoned as follows:

“In respect of DW2 there is admittedly no direct evidence of what caused the death of the deceased. Evidence of prosecution witnesses who saw the deceased when he was brought out of a latrine pit testified to stab wounds and lacerations on the body of the deceased and the fact that the deceased was tied with ropes all over its body and his right eye plucked out. Exhibit “8(a)” unmistakably confirms the deceased tied with ropes. I agree with PW1 that what killed the deceased were the serious stab wounds and asphyxia, that is, suffocation.

Although there is none of these acts that can be directly ascribed to DW2 but there was evidence, which was not challenged under cross-examination, that when DW2 came out of the backyard of chief Udo Ukpe accompanied by Patrick jack Ukpe, he and Patrick Jack Ukpe were stained all over with blood and that it was DW2 who chased PW2 and PW3 away. If DW2 came out from the scene of murder being the backyard of Chief Udo Ukpe where the deceased was stabbed and his eye plucked out and the deceased was put in a pit latrine, the inference is irresistible that DW2 was at that scene where this grisly murder took place and he was among the perpetrators of this act. It is unfortunate that apart from DW2, most of those who planed and executed this crime are at large and have not been made to face this charge and trial.”

See page 122 lines 10 – 34 of the printed record.

lf PW1 (Medical Doctor) was not at the scene and PW2, PW3 and Pw4 were not believed by the learned trial Judge, it seems to me there was no iota of direct or circumstantial evidence linking the appellant with the murder of Friday Akpan Udo Udo as erroneously held by the learned trial Judge to found the conviction and sentence of the appellant. This is because the eye witnesses to the (i) scooping scene (ii) pursuit and capture and (iii) murder of the deceased as presented by the prosecution, namely, PW2, PW3 and PW4 were disbelieved and discredited (though in my humble opinion erroneously) by the learned trial judge hence there was no evidence to corroborate the evidence of the medical doctor (PW1) who performed the post-mortem examination to prove who caused the death of Friday Akpan Udo Udo. PW1 who was believed did not mention the appellant as one of those who committed the murder. The appellant was also not apprehended at the scene or in the course of committing the crime. See Alabi v. The State (1993) 9 SCNJ (Pt.1) 109 at 122; Ikonu v. The State 91973) 5 SC 231.

On what constitutes corroborative evidence, it was held in The Queen v. Omisade & Ors. (1964) NMLR 67 at page 77 per Ademola C.J.N. that:

In this appeal the learned trial Judge could not have regarded PW2, PW3 and PW4 as accomplices because they did not participate in the planning or execution of the murder; neither were they charged with the offence. See section 198(1)-(2) of the Evidence Act, 2011. His Lordship however treated them as “tainted witnesses.”

This phrase has often been wrongly employed by some trial and appellate judges to reject admissible evidence.

But in my view it is tainted evidence that should be Rejected. To “taint” is 1. To imbue with a noxious quality or principle. 2. To contaminate or corrupt. 3. To tinge or affect slightly for the worse” hence, “tainted evidence” means Evidence that is obtained by illegal means.” See Blacks Law Dictionary, 9th edition pages 640 and 1590.

The mere fact that PW1 was the son of the deceased; PW3 was his wife and PW4 used to work on the farmland in dispute does not per se does not render their evidence as inadmissible. Neither should they be referred to as ‘tainted witnesses”. There is nothing showing that their evidence was procured by illegal means. No law forbids a son, a wife or hired hand testifying in proof of a murder or an offence. To do so will make it impossible for the prosecution to prove offences committed in the presence of such witnesses. In Ogunlana vs. State (1995) 5 NWLR (pt.395) 266,the supreme court defined who an accomplice or a tainted witness is at page 294 paragraphs “C-G” per Iguh, JSC:

In my humble view the error of the trial Judge in holding as inadmissible the evidence of PW2, PW3 and PW4 who were eye witnesses to the gory murder of Friday Akpan Udo Udo on the ground that they were tainted witnesses led to the wrongful discharge and acquittal of the co-accused by the learned trial Judge. Furthermore, in P.L. Taylor & Ors. v. Rex. 21 Cr. App. R.20 Lord Hewart, Lord Chief Justice of England observed at page 21 that:

“It has been said that the evidence against the applicants is circumstantial: So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by under signed coincidence, is capable of proving a proposition with the accuracy of mathematics.”

Also in valentine Adie v. The State (1980) 1-2 SC 73 Idigbe, JSC held at page 83 that:

“there is great need for a trial court to tread cautiously in the application of circumstantial evidence for the conviction of an accused for any offence with which he is charged…”

In my humble view once the learned trial Judge had made up his mind not to act on the evidence of PW2, PW3 and PW4, neither could he do so on the same rejected evidence to convict the appellant. In Chief Emmanuel Ebri v. The State (2004) 11 NWLR (Pt.885) 589 Niki- Tobi, JSC held at page 604 paragraph “C” to page 605 paragraphs “A-B” thus:

In his leading judgment, Nnamani, JSC, said at page 287 and 288:

If the learned trial Judge had believed the evidence of PW2, PW5 and PW4 that would have corroborated the evidence of the medical Doctor (PW1) as to who caused the death of Friday Akpan Udo Udo on 25th November, 1989, I may further add that if the learned trial Judge had believed PW2, PW3 and PW4s’ testimonies, clearly all the four suspects were fixed at the scene of crime, and actively participated in the murder of Friday Akpan Udo Udo. They ought to have been found guilty as charged. But alas that was not so. But as there is no appeal by the state against their erroneous discharge and acquittal, I say no more. See Uwani v. The State (1988) 1 NWLR (Pt.70) 274/286 and Ebri v. State Supra at p.611.

On the whole, I am of the firm view – unfortunately – that the conviction and sentence to the death of the appellant for the murder of Friday Akpan Udo Udo on 25th November, 1989 at Ikot Idem Udo village in Oruk Anam Local Government Area of Akwa Ibom State is wrongful and is hereby quashed. The appellant is discharged and acquitted.

MOHAMMED LAWAL GARBA, J.C.A.: I agree with the views expressed and the conclusions reached in the lead judgment of my learned brother Joseph Tine Tur, JCA, in respect of this appeal. The appeal is allowed by me in all the terms of the lead judgment.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft from the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasons so ably articulated in coming to a decision in this appeal. The only reason the appellant was convicted was that his own alibi was investigated and found to be false. It is the same evidence that found the other accused persons not guilty should be used also to discharge and acquit the appellant.

It is trite that any doubt must be resolved for the benefit of the accused. For this and the fuller reasons in the lead judgment this appeal is hereby allowed. I abide by all the consequential orders in the lead judgment.

Appearances

Iniabasi UdobongFor Appellant

AND

Samuel AkpabioFor Respondent