MISOSONU v. STATE (2021)

MISOSONU v. STATE

(2021)LCN/15167(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 09, 2021

CA/IB/97C/2020

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

SAMUEL MISOSONU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESTABLISHING THE OFFENCE OF MURDER

To succeed in a charge of murder, the prosecution must establish the existence of the death of a human being, such death must have been caused by the accused person, the act or cause of death or such bodily injury such that the accused knew or had reasons to know that death will be the probable consequence of his action or that his action would cause grievous bodily harm and that the death caused by the action of the accused person was illegal or wrongful. The State v. Azeez (2008) ALL FWLR pt. 424 page 423 at 1458 referred. The prosecution must clearly establish these circumstances by calling credible evidence or relying on the confession of the accused person. There was no confession made by the Appellant in this case. No act was tied on the Appellant as the role he played in causing the death of the deceased.
The learned trial judge should have exercised some caution in accepting the testimonies of PW2, a blood relation who has an axe to grind against the Appellant. In The State v. Azeez (2008) ALL FLWR pt. 424. 1423, it was held that a trial judge should be cautious in accepting the evidence of such blood relation which evidence could be tainted with resentment. PER OGAKWU, J.C.A.

WHETHER OR NOT THE COURT IS BOUND BY ITS PREVIOUS DECISIONS BASED ON THE DOCTRINE OF STARE DECISIS

It is rudimentary law that this Court is bound by its previous decisions based on the doctrine of stare decisis. The diacritical circumstances of this matter even goes beyond the scope of binding precedent or stare decisis. It is a lot more deep-rooted. The previous decision of this Court is on the same judgment of the lower Court which is complained about in this appeal. The offences charged as well as the evidence adduced against the appellant in the previous appeal and the Appellant herein are the same offences and evidence. That evidence has been held in the previous decision of this Court as not establishing the offences charged beyond reasonable doubt, consequent upon which the judgment of the lower Court being challenged in this appeal was set aside.
The legal position in this regard was authoritatively stated by Ogundare, JSC in the following words in the case of USMAN vs. UMARU (1992) LPELR (3432) 1 at 21:
“It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the Court below it and this Court as the final appellate Court, is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is;
(a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow;
(b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this Court; and
(c), it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. See Osumanu v. Amadu (1949) 12 WACA 437; Davis v. Johnson (1978) 1 All E.R 1132.”
It is therefore abecedarian law based on the rule inYOUNG vs. BRISTOL AEROPLANE CO. (supra) that this Court is bound by its previous decision except where the circumstances specified in YOUNG v. BRISTOL AEROPLANE CO. (supra) are applicable. See OKEKE vs. THE STATE (1995) 4 NWLR (PT 392) 676 and APARI vs. HOSE (1999) LPELR (6650) 1 at 8 (CA). PER OGAKWU, J.C.A.

DUTY OF THE COURT WHERE A WITNESS MAKES A STATEMENT BEFORE TRIAL WHICH IS INCONSISTENT WITH THE EVIDENCE HE GIVES IN COURT

The well settled position of the law is that where a witness made a statement before trial which is inconsistent with the evidence he gives in Court on a material point and gives no cogent reasons for the inconsistency, the Court should regard his evidence as unreliable: ONUBOGU vs. THE STATE (1974) 9 SC 1 and ORISA vs. THE STATE (2018) LPELR (43896) 1 at 29-30. PER OGAKWU, J.C.A.

WHETHER OR NOT IT IS BETTER TO ACQUIT NINE GUILTY MEN THAN TO CONVICT AN INNOCENT MAN

The law is now firmly settled by a plethora of authorities that it is better for nine guilty persons to escape than for one innocent person to suffer. In aliis verbis, it is better to acquit nine guilty men than to convict an innocent man: UKORAH vs. THE STATE (1977) 4 SC 167 at 177, OLEKAIBE vs. THE STATE (1990) 1 NWLR (PT 129) 632 at 644 and SHEHU vs. THE STATE (2010) LPELR (3041) 1 at 10. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was one of three accused persons arraigned before the High Court of Ogun State on an Information preferring two counts of conspiracy to commit murder and murder. The Appellant was the 3rd accused person before the lower Court at the trial in CHARGE NO. HCL/11C/2009: THE STATE vs. SUNDAY TOWAKENU & 2 ORS. At the end of the trial, the lower Court in its judgment convicted the accused persons as charged and sentenced them to seven years imprisonment with hard labour on the count of conspiracy to commit murder, and to death on the count of murder. The judgment of the lower Court was delivered on 18th January 2013.

By an order of this Court made on 27th January 2020, the Appellant was granted extension of time to appeal against the judgment of the lower Court and was granted seven (7) days within which to file his Notice of Appeal. Pursuant to the said Order, the Appellant filed his Notice of Appeal on 30th January 2020. The judgment of the lower Court is at pages 236-257 of the Records, while the Notice of Appeal is at pages 260-263 of the Records. In prosecution of the

appeal, the Record of Appeal was compiled and transmitted on 16th March 2020 and the parties filed and exchanged briefs of argument. The Appellant’s brief of argument was filed on 29th April, 2020, while the Respondent filed its brief of argument on 18th June 2020, but deemed as properly filed on 17th September 2020.

At the hearing of the appeal, Nas Ogunsakin, Esq., learned counsel for the Appellant adopted and relied on the Appellant’s brief and urged the Court to allow the appeal. He brought to the notice of the Court the related appeal filed against the judgment, subject of this appeal, by the 2nd accused person at the lower Court. He stated that in the said related APPEAL NO. CA/IB/262C/2013: SEWANU AWAVONKE VS. THE STATE, this Court, in its judgment delivered on 25th April 2018 allowed the appeal, set aside the judgment of the lower Court and quashed the conviction and sentence imposed on the appellant in the said appeal. In the same vein, Olusegun T. Olaotan, Esq., learned Director of Public Prosecutions, Ministry of Justice, Ogun State (appearing with Miss O. O. Afolabi, Senior State Counsel), learned counsel for the Respondent adopted

and relied on the Respondent’s brief of argument in urging the Court to dismiss the appeal.

The Appellant formulated three issues for determination, videlicet:
“1. Whether the prosecution proved the cause of death of Bayo Awosinu satisfactorily, given the state of evidence led by it. (Grounds 1, 3 and 6 of the Notice of Appeal).
2. Whether the trial Court was right in finding the Appellant guilty as charged. (Grounds 2, 4 and 7 of the Notice of Appeal).
3. Whether the trial Court rightly convicted the Appellant in view of the alibi he presented, which was evidently not investigated by the Police. (Ground 5 of the Notice of Appeal).

For the Respondent, a sole issue suffices for the determination of the appeal. The issue for determination distilled by the Respondent is:
“Whether the prosecution has proved the offences of conspiracy to commit Murder and Murder against the Appellant beyond reasonable doubt, having considered the defence of alibi raised by the Appellant.”

I find the issue distilled by the Respondent pithy and idoneous. Accordingly, it is on the basis of the said issue that I would consider

the submissions of learned counsel and thereafter seamlessly resolve the appeal, en bloc.

ISSUE FOR DETERMINATION
Whether the prosecution proved the offences of conspiracy to commit Murder and Murder against the Appellant beyond reasonable doubt, having considered the defence of alibi raised by the Appellant.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant referred to the cases of ULUEBEKA vs. THE STATE (2011) 4 NWLR (PT 1233) 356 at 378-379, OLUWADAMILOLA vs. THE STATE (2010) 8 NWLR (PT 1197) 565, UWAGBOE vs. THE STATE (2007) ALL FWLR (PT 350) 1338 and ADEPEJU vs. THE STATE (1998) 9 NWLR (PT 266) 185 on the essential ingredients to be proved in a case of murder. It was submitted that the prosecution did not prove the cause of death of the deceased as the evidence of the PW7, the medical doctor who conducted the post-mortem on the deceased and the medical report, Exhibit K, were not consistent and certain as to the death of the deceased. It was stated that the evidence of the PW1, PW3 and PW4 were equally contradictory as they testified that the deceased was stabbed but that in the extra-judicial statements of the PW1 and PW3,

they stated that the deceased was shot. It was posited that the contradictions as to the cause of death were material and affected the evidence given in the case vide OGIDI vs. THE STATE (2003) 9 NWLR (PT 824) 1 at 23 and AHMED vs. THE STATE (2001) 18 NWLR (PT 746) 622 at 657.

It was opined that where a witness had made an extra-judicial statement which is in conflict with his evidence in Court and he gives no cogent reasons for the inconsistences or conflict, then the evidence of the witness is unreliable. The case of DOGO vs THE STATE (2001) 3 NWLR (PT 699) 192 at 211 and ONUBOGU vs. THE STATE (1974) 9 NSCC 358 at 365 were called in aid. It was contended that the lower Court was wrong when it held that the PW1 and PW3 satisfactorily explained the inconsistencies between their extra-judicial statements and their testimony in Court, and that the perceived contradictions were immaterial, and that in so doing the lower Court made a case for the prosecution, which a Court is not to do. The case of ITAUMA vs. AKPE-IME (2000) 12 NWLR (PT 680) 156 at 175 was cited in support. It was maintained that on account of the contradictions, the prosecution did not prove

beyond reasonable doubt that the death of the deceased was caused by any act of the Appellant.

It is the further contention of the Appellant that the constitutional presumption of innocence under Section 36 (5) of the 1999 Constitution enures in his favour, and that the prosecution did not discharge the burden of proving the offences charged beyond reasonable doubt. Sections 135 and 138 of the Evidence Act and the cases of OCHIBA vs. THE STATE (2011) 17 NWLR (PT 1277) 663 at 685, 688, 691 and 693-694, NWOSU vs THE STATE (1998) 8 NWLR (PT 562) 433 at 444, AKALEZI vs THE STATE (1993) 2 NWLR (PT 273) 1 at 13 and CHUKWU vs. THE STATE (2007) 13 NWLR (PT 1052) 430 at 456-457 were referred to. The lower Court it was asserted was wrong to find the Appellant guilty as charged since the ingredients of the offences charged were not proved beyond reasonable doubt. It was stated that there was no written agreement to conspire and so conspiracy could only be inferred from the actions of the Appellant and the other co-accused persons, but that the evidence of the PW1 and PW3 who gave eyewitness testimony were contradictory and raised doubts which ought to have been

resolved in favour of the Appellant vide OFORLETE vs. THE STATE (2000) 12 NWLR (PT 681) 415 at 434 and 436, IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 455 at 464 and ONUCHUKWU vs. THE STATE (1976) 9-10 SC 305 at 325. The Appellant posited that the ingredients in an offence of murder are cumulative and that where any of these ingredients is not proved, it will lead to an acquittal. It was then stated that even if the evidence established that the deceased is dead, it did not establish that the death was caused by the Appellant with the intention of causing death or in the knowledge that death was a probable and not only the likely consequence of action. It was maintained that there is no evidence linking the Appellant to the death of the deceased.

The further submission of the Appellant is that he raised the defence of alibi at the earliest opportunity giving full particulars, but that the same was not investigated, in consequence of which the prosecution failed in its duty to disprove the alibi. The cases of IFEJIRIKA vs. THE STATE (1999) 3 NWLR (PT 593) 59 at 78, ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190 at 221, ESANGBEDO vs. THE STATE (1973) 8

NSCC 352 at 363, AZEEZ vs. THE STATE (2005) 8 NWLR (PT 927) 316 at 327, AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860) 367 at 401 among other cases were relied upon.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The conspectus of the Respondent’s submission is that in criminal trials, the onus is on the prosecution to prove the offences charged beyond reasonable doubt, which does not connote beyond every shadow of doubt vide ABIRIFON vs. THE STATE (2013) 9 SCM 1 at 5 and NWATURUOCHA vs. THE STATE (2011) 12 SCM (PT 2) 265 at 269. The ingredients to be proved in a charge of murder as set out in the cases of NJOKWU vs. THE STATE (2013) 2 SCM 177 at 198 and EDOHO vs. THE STATE (2010) 6 SCM 52 at 56 were referred to and it was stated that the fact that the deceased is dead cannot be in issue having been established by the medical report, Exhibit K, and the testimony of PW1, PW2, PW4 and PW7. On the second ingredient of the acts of the Appellant which caused the death of the deceased, it was opined that the PW1 and PW3 gave vivid testimony of how machete cuts were inflicted on the deceased and other stab wounds which clearly linked the Appellant

to the death of the deceased. The case of UDOSEN vs. THE STATE (2007) 2 SCM 128 at 130 was called in aid.

It was posited that the intention of the Appellant to cause death can be inferred from the instrument used and the force applied to the extent that the deceased died. The case of NWOKEARU vs. THE STATE (2013) 9 SCM 124 at 129 was cited in support. It was stated that the Appellant and his co-accused used lethal weapons to brutalize the deceased, showing that they had the intention to kill the deceased. The cases of IDEN vs. THE STATE (1994) 8 NWLR (PT 365) 719 at 721 and MICHAEL vs. THE STATE (2008) 10 SCM 83 at 85 were referred to. The Respondent asserted that the Appellant was well known to the PW3 and that the testimony of the PW3 fixed the Appellant at the scene of crime and that the testimony of a single credible witness was sufficient to convict. The case of NKEBISI vs. THE STATE (2010) 3 SCM 170 was relied upon.

It was further contended that even if the Appellant denied taking part in the killing, he admitted in his extra-judicial statements that he was present at the scene and the mere fact that he was among those who inflicted the wounds

was sufficient to justify his conviction. The case of OSUNG vs. THE STATE (2012) 11 SCM 176 at 197 was cited in support. It was maintained that the testimony of the PW1 and PW3, which are confirmed by Exhibit K, and the evidence of the PW7 established that the cause of death was the machete cut and stabbing. The Respondent posits that it is only material contradictions and inconsistences in the evidence of a witness that will damnify his evidence and not miniature contradictions. It was asserted that there was no contradiction in the testimony of the prosecution witnesses and that the contradictions raised by the Appellant were not material, substantial and fundamental to determine the guilt of Appellant. The cases of NDUKWE vs. THE STATE (2009) 2 SCM 147 at 150, MUSA vs. THE STATE (2013) 3 SCM 79 at 83, ATTAH vs. THE STATE (2010) 5 SCM 57 at 60, SULE vs. THE STATE (2009) 8 SCM 177 at 185 and AHMED vs. THE STATE (2001) 18 NWLR (PT 746) 622 at 657 were called in aid. It was stated that in any event, the prosecution witnesses explained the inconsistencies and furthermore that Exhibit K ruled out gunshot injury as the cause of death.

On the alibi raised by the Appellant, it was stated that the same was duly investigated by PW5 and PW6 and that the evidence on the outcome of the investigation was not challenged or contradicted by the Appellant. It was further opined that the testimony of the PW1 and PW3 fixed the Appellant at the scene of crime which destroyed his alibi.

The definition of conspiracy in Black’s Law Dictionary, 7th Edition and the cases of BELLO vs. THE STATE (2010) 12 SCM (PT 2) 28 at 34 and NWOSU vs. THE STATE (2004) 15 NWLR (PT 897) [no page stated] were referred to and it was submitted that conspiracy is committed by a meeting of the minds of two or more persons to do an illegal act or to do a legal act by illegal means. It was posited that conspiracy is often deduced from certain criminal acts of the parties vide KAZA vs. THE STATE (2008) 2 SCNJ 373, ODUNEYE vs. THE STATE (2009) 2 NWLR (PT 697) 311 and 825 [sic] and ALARAPE vs. THE STATE (2001) FWLR (PT 41) 1872 at 1896. It was asserted that the evidence adduced by the prosecution established that the Appellant and his co-accused formed a common intention to prosecute an unlawful purpose, in pursuance of which a murder was committed

and consequently the offence had been committed. The case of UBIERHO vs. THE STATE (2005) 5 NWLR (PT 919) 644 at 658 was relied upon.

RESOLUTION
The Information preferred against the Appellant and the co-accused persons charged them with the following offences:
“COUNT I:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT MURDER contrary to and punishable under Section 324 of the Criminal Code Law, Vol. 1, Laws of Ogun State, 2006.
PARTICULARS OF OFFENCE
SUNDAY TOWAKENU (M), SEWANU AWAVONKE (M) and SAMUEL MISOSONU (M) on or about the 7th day of March, 2009 at Anago Compound, Ipokia in the Ilaro Judical Division conspired to commit a felony to wit: Murder.
COUNT II:
STATEMENT OF OFFENCE
MURDER, contrary to Section 319 of the Criminal Code Law, Vol. 1, Laws of Ogun State, 2006.
PARTICULARS OF OFFENCE
SUNDAY TOWAKENU (M), SEWANU AWAVONKE (M) and SAMUEL MISOSONU (M) on or about the 7th day of March, 2009 at Anago Compound, Ipokia in the Ilaro Judicial Division murdered BAYO AWOSINU (M).”

Paucis verbis, the background facts that led to the charge are that the Complainants as well as the Appellant and

his co-accused persons are from Obanigbe in Ipokia Local Government Area of Ogun State. The Complainants are of the Anago tribe while the Appellant and his co-accused persons are of the Egun tribe. There had been a long standing confrontation and disputation between the Anagos and the Eguns. While the Anagos celebrate the Oro Festival, the Eguns celebrate the Sangbeto Masquerade Festival. The provenance of the charge is in the celebration of the Oro Festival by the Anagos. The case of the Prosecution is that the Appellant, the co-accused persons and other Egun people came and disrupted the Complainant’s Oro Festival and that in the course of the attack, the deceased was murdered. The narrative of the Appellant and the other co-accused persons is that they were the ones who were in fact attacked by the Anagos during the celebration of the Oro festival and that they sustained gunshot wounds and that a traditional healer removed the pellets from their bodies. They stated that they were the ones who first reported the attack on them to the Police, before the tables were turned on them and they became the accused persons.

The Prosecution evidence against the Appellant and the co-accused persons is the same as it relates to the offences charged. It is predicated on this evidence that the Appellant and the co-accused persons were convicted by the lower Court. The learned counsel for the Appellant has drawn the attention of this Court to its previous decision in APPEAL NO. CA/IB/262C/2013: SEWANU AWAVONKE vs. THE STATE delivered on 25th April 2018. The said decision is in respect of the same judgment subject of this appeal. It was filed by the 2nd accused person before the lower Court and who was convicted based on the same evidence on which the Appellant herein was convicted. This Court (Coram: Dongban-Mensem, Tsammani and Okoronkwo, JJCA) allowed the appeal therein and set aside the decision of the lower Court. In setting aside the decision of the lower Court, in the lead judgment of Dongban-Mensem, JCA (now PCA), Tsammani and Okoronkwo, JJCA concurring, this Court conclusively held as follows:
“By Section 135(1) of the Evidence Act 2011, the burden of proving the guilt of a person charged with the commission of an offence beyond reasonable doubt is clearly on the Prosecution. The prosecution

therefore needs to establish credible evidence demonstrating that a person accused of a crime actually committed the crime.
To succeed in a charge of murder, the prosecution must establish the existence of the death of a human being, such death must have been caused by the accused person, the act or cause of death or such bodily injury such that the accused knew or had reasons to know that death will be the probable consequence of his action or that his action would cause grievous bodily harm and that the death caused by the action of the accused person was illegal or wrongful. The State v. Azeez (2008) ALL FWLR pt. 424 page 423 at 1458 referred. The prosecution must clearly establish these circumstances by calling credible evidence or relying on the confession of the accused person. There was no confession made by the Appellant in this case. No act was tied on the Appellant as the role he played in causing the death of the deceased.
The learned trial judge should have exercised some caution in accepting the testimonies of PW2, a blood relation who has an axe to grind against the Appellant. In The State v. Azeez (2008) ALL FLWR pt. 424. 1423, it was

held that a trial judge should be cautious in accepting the evidence of such blood relation which evidence could be tainted with resentment.
The yawning gaps left out by the prosecution create a doubt which must be resolved in the favour of the Appellant as an accused person.
I must accordingly refrain from affirming the decision of the learned trial Court which decision is hereby set aside. This appeal succeeds.
The Appellant’s conviction and sentence are hereby quashed. The Appellant shall be released from prison custody forthwith.”

not establishing the offences charged beyond reasonable doubt, consequent upon which the judgment of the lower Court being challenged in this appeal was set aside.
The legal position in this regard was authoritatively stated by Ogundare, JSC in the following words in the case of USMAN vs. UMARU (1992) LPELR (3432) 1 at 21:
“It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the Court below it and this Court as the final appellate Court, is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is;
(a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow;
(b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this Court; and
(c), it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. See Osumanu v. Amadu (1949) 12 WACA 437; Davis v. Johnson (1978) 1 All E.R 1132.”
It is therefore abecedarian law based on

the rule inYOUNG vs. BRISTOL AEROPLANE CO. (supra) that this Court is bound by its previous decision except where the circumstances specified in YOUNG v. BRISTOL AEROPLANE CO. (supra) are applicable. See OKEKE vs. THE STATE (1995) 4 NWLR (PT 392) 676 and APARI vs. HOSE (1999) LPELR (6650) 1 at 8 (CA). The said circumstances are not present in the circumstances of this matter and therefore this Court remains bound by the decision in APPEAL NO. CA/IB/262C/2013 and there is no need to depart from the same. It cannot be otherwise as this Court cannot approbate and reprobate and cannot, flowing from the intimate kinship of the two appeals arrive at a conflicting verdict as it cannot be said that the previous decision of the Court was given per incuriam.

Howbeit, I will further demonstrate how this appeal is unmeritorious in its own right. The learned counsel on both sides of the divide have redacted the essential ingredients of the offence of murder, which the prosecution has the onus of establishing beyond reasonable doubt, id est:
1. That the deceased is dead.
2. That the death of the deceased is as a result of the act or omission of the accused

person (the Appellant herein).
3. That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the probable consequence.
See ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and UWAGBOE vs. THE STATE (2008) LPELR (3444) 1 at 29.
The above ingredients which have to be proved are cumulative. In order to ground a conviction, all the three ingredients must be established beyond reasonable doubt. Let me brevi manu state that I am not at one with the Appellant’s contention that the evidence did not establish that the deceased is dead. It cannot be confuted that the evidence on record, particularly the testimony of the PW7, the medical doctor and the medical report, Exhibit K, authenticate that the deceased is dead. So raising any contention on that ingredient would be beating a dead horse. It is my informed view that the critical consideration in this appeal are the second and third ingredients. In order to secure a conviction, the Prosecution must prove beyond reasonable doubt, the act or omission of the Appellant which directly or

indirectly caused the death of the deceased. The Prosecution has to establish, not only that that act of the Appellant caused the death of the deceased but that in actual fact the deceased died as a result of the said act of the Appellant to the exclusion of all other possibilities. The evidence has to also establish beyond reasonable doubt that the act or omission of the Appellant which caused the death of the deceased was done intentionally with full knowledge that death or grievous bodily harm was the probable consequence.
Most often in criminal trials, the crucial issue is not ordinarily whether or not the offence was committed. It is often whether the person charged is the culprit:NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. In the circumstances of this matter whether the evidence established the act of the Appellant which caused the death of the deceased. In order to unravel this issue, it is pertinent to properly contextualize the testimony of the prosecution witnesses. The prosecution called a total of seven witnesses. However, it is only the PW1 and PW3 who gave testimony of being present (even if in hiding in the nearby bush/banana

farm) when the deceased was said to have been attacked by the Appellant and his co-accused persons. The PW2 in his testimony stated that he had left where the Oro Festival was celebrated before the attack took place, while the PW4 was never present at Obanigbe where the incident happened. The PW5 and PW6 were the Investigating Police Officers while the PW7 was the medical doctor. So the only eyewitness testimony which can be resorted to ascertain if the required ingredient was proved are the testimony of the PW1 and PW3.

The Appellant has forcefully argued that the testimony of the PW1 and PW3 in the witness box is inconsistent with the extra-judicial statements made to the Police. It was posited that in their extra-judicial statements, the PW1 and PW3 stated that the Appellant and the other co-accused persons shot at the deceased with a gun, while in their evidence in Court they testified that the deceased was attacked with machete and sharp object. To challenge and contradict the PW1 and PW3, their extra-judicial statements were admitted in evidence under cross examination as Exhibits A and B. This notwithstanding, the lower Court felt comfortable to

hold that the testimony of the PW1 and PW3 on the attack on the deceased by the Appellant and the other co-accused persons was not challenged or contradicted. This notwithstanding, the necessary consideration is, what is the effect of the inconsistency between the extra-judicial statements of the PW1 and PW3 and their testimony in Court.

This brings us to the inconsistency rule. The apex Court explained the legal effect of the inconsistency rule in the case of IKENNE vs. THE STATE (2018) LPELR (44695) 1 at 9-10 as follows:
“Now, this appeal is about the inconsistency rule and how it impacts on the burden of proof in criminal proceedings. Our jurisprudence is replete with decisions on the principle. The inconsistency rule, in relation to the testimony of a witness, renders incredible and unreliable the oral evidence of a witness as well as his earlier statement the oral evidence materially contradicts. Thus in the instant case, if as asserted by the appellant, the oral evidence of PW2 and PW3 indeed materially contradict their extra-judicial statements, their statements as well as their contradictory oral evidence, must necessarily be

discountenanced. Being incredible and unreliable, the statements and the oral evidence will be incapable of sustaining the concurrent conviction of the appellant by the two lower Courts.”
See also EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 383, OGUDO vs. THE STATE (2011) LPELR (860) 1 at 19-20, DOGO vs. THE STATE (2001) LPELR (956) 1 at 30-31 and SIMON vs. THE STATE (2017) LPELR (41988) 1 at 17-19.
The well settled position of the law is that where a witness made a statement before trial which is inconsistent with the evidence he gives in Court on a material point and gives no cogent reasons for the inconsistency, the Court should regard his evidence as unreliable: ONUBOGU vs. THE STATE (1974) 9 SC 1 and ORISA vs. THE STATE (2018) LPELR (43896) 1 at 29-30. The lower Court in its judgment held that PW1 and PW3 explained the inconsistency under re-examination. Firstly, from the Record of Appeal (See page 49 of the Records), the PW3 was not re-examined, so he could not have explained the inconsistency under re-examination as held by the lower Court. The explanation of the PW1 which the lower Court held satisfactory is the testimony of the

PW1 under re-examination that he is not the one that wrote the extra-judicial statement, Exhibit A. The lower Court then went to town in its judgment at page 248 of the Records to provide reasons why the inconsistency had been satisfactorily explained. I do not think that this is permissible under the law. I will return to this anon.

Undoubtedly, the inconsistency as to whether the act or omission of the Appellant and his co-accused persons was shooting the deceased with a gun, or using machete and sharp objects to inflict cuts or wounds on him is material. It cannot be waived away as a miniature contradiction or inconsistency. I do not lose sight of the fact that in the self-same Exhibits A and B, the Pw1 and Pw3 stated that the deceased was cut with a machete and stabbed, but the allusion to being cut with machete and stabbed is after the deceased had been shot dead. In the words used in Exhibit A, it was the corpse of the deceased that was “macheted.” Accordingly, the existence of the material contradiction and inconsistency cannot be confuted. It is settled law that where there are material contradictions and inconsistencies in the

evidence of the prosecution, the accused person is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. See ONUBOGU vs. THE STATE (supra), BOY MUKA vs. THE STATE (1976) 9 – 10 SC 305 and NWABUEZE vs. THE STATE (1988) 4 NWLR (PT 86) 16. In the words of Fatayi-Williams, JSC (as he then was) in ONUBOGU vs. THE STATE (supra) at 20:
“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another witness on a material point, the prosecution ought to lay some foundation… before they can ask the Court to reject the testimony of one witness and accept that of another witness… It is not competent for the prosecution which called them to pick and choose between them… We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross examination, the validity of the proffered explanation.”

I am allegiant. It was not the function of the lower Court to provide the explanation for the inconsistency in the manner it did. The lower Court ought to have given the Appellant the benefit of the doubt arising from the material contradiction and inconsistencies in the evidence of the prosecution: DOGO vs. THE STATE (2001) 3 NWLR (PT 699) 192.

In the peculiar circumstances of this matter, the lower Court was wrong not to have applied the inconsistency rule and treat the PW1 and PW3 as unreliable. The indubitable consequence of the PW1 and PW3 being treated as unreliable is that there is no evidence of any act of the Appellant which could have caused the death of the deceased since the PW1 and PW3 are the only prosecution witnesses who were present when the alleged attack on the deceased took place.

The matter does not end there at least not yet. Arguendo, if it is contended that the testimony of the PW1 and PW3 can be relied upon as establishing that the act of the Appellant and his co-accused persons that caused the death of the deceased, was the machete cuts and stab wounds; the prosecution evidence still does not establish that the deceased died as a

result of that act, to the exclusion of all other possibilities. The PW7, the medical doctor, in his testimony stated that the deceased died from haemorrhagic shock arising from stab wounds; but under cross examination at page 73 of the Records he stated:
“It is possible for death to occurred [sic] from haemorrhagic [sic] shock without a stab; anything that could result in excessive blood loss could lead to haemorrhagic shock and death. It is possible that the stab I noticed could be caused by a sudden fall on a sharp object. It is also unpredictable that if the excessive blood loss is attended to on time, the deceased might not die.”

Without a doubt, the evidence adduced by the Prosecution did not establish beyond reasonable doubt that the act or omission of the Appellant caused the death of deceased and that the said act or omission which caused the death was intentional with full knowledge that death or grievous bodily harm was the probable consequence. The Appellant was entitled to full benefit of the doubt: OMOPUPA vs. THE STATE (2007) LPELR (8571) 1 at 45 and ABDULLAHI vs. THE STATE (2008) 17 NWLR (PT 1115) 203 at 224.

The Appellant’s contention that the alibi he raised was not investigated is not correct. Quite apart from the fact that the Appellant’s alibi of having come out from his house when he heard the Anago people attacking the 1st accused person at the lower Court is imprecise as to what was to be investigated in that regard, the testimony of the PW5 and PW6, the Investigating Police Officers, is that they investigated the alibi raised. So the defence of alibi which means elsewhere does not avail the Appellant.

With regard to the conviction for conspiracy, the lower Court at page 243 of the Records stated as follows:
“I have gone through the evidence presented by the prosecution and it is apparent that the same facts are intended to prove the charge of conspiracy and the substantive offence of murder. In that instance, the Court has been enjoined to consider the substantive offence first and then proceed to see if the conspiracy charge is made out… I will therefore proceed to consider the charge of murder first.”

Having so stated that the same facts are relied upon in proof of both counts of the charge, the lower Court,

having held that the facts established the substantive offence of murder inferred proof of conspiracy from the substantive offence having been proved. Hear the lower Court at page 256 of the Records:
“Usually, conclusive evidence of the commission of the principal crime is suggestive of conspiracy.”

Having held in this judgment that the evidence did not establish the substantive offence, the Appellant’s conviction for the offence of conspiracy cannot stand: ABIOYE vs. THE STATE (1987) 2 NWLR (PT 58) 645 at 653-654, AMADI vs. THE STATE (1993) 3 NWLR (PT 314) 644 at 677, BALOGUN vs. THE STATE (2018) LPELR (44215) 1 at 4-5, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281 and TEMITOPE vs. THE STATE (2010) LPELR (37521) 1 at 24.

a coda, the issue for determination is resolved in favour of the Appellant. The Prosecution did not prove the offences of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt to warrant his conviction by the lower Court.

The concatenation of the foregoing is that this appeal is meritorious and it succeeds. The decision of the lower Court delivered on 18th January 2013 embodying the conviction of the Appellant and the sentence of seven (7) years imprisonment with hard labour imposed on him in Count I and the sentence of death imposed upon him in Count II is hereby set aside. A verdict of discharge and acquittal is hereby returned in respect of the two Counts of the Information preferred against the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered and I agree with my Lord’s reasoning and conclusion.

Having also read the Record of Appeal as well as the Briefs of Argument filed by both parties, I am of the view that the Prosecution did not prove offences of conspiracy to commit murder and murder against the Appellant beyond

reasonable doubt to warrant his conviction by the Lower Court.
This Appeal therefore has merit and it is allowed by me. I abide by the consequential Orders made in the lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I was privileged to read in draft the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. His Lordship has succinctly and admirably considered the salient issues for determination in this appeal.

The law is settled that where there are inconsistencies in the evidence presented by the prosecution on a material point at the trial, without any valid explanation, the Court cannot pick and choose which evidence to believe and which not to believe. In such a situation, a doubt is obviously created in the case of the prosecution which should be resolved in favour of the accused person. The prosecution would then be held to have failed to prove the guilt of the accused person beyond reasonable doubt. See COMMISSIONER OF POLICE VS AMUTA (2017) 4 NWLR (Pt. 1556) 376, ADEGBITE VS STATE (2018) 5 NWLR (Pt. 1612) 183, ARUNA VS STATE (1990) 6 NWLR (Pt. 155) 125, ZAKIRAI VS MUHAMMAD (2017) 17 NWLR (Pt. 1594)

181 and MUKA VS STATE (1976) 9 – 10 SC (Reprint) 193.

In the instant appeal, PW1 and PW3 stated in their extra judicial statements that the Appellant and the other co-accused persons shot the deceased with a gun. In their oral testimony before the trial Court they said the deceased was attacked with a machete and a sharp object. The evidence in the extra judicial statements of PW1 and PW3 is materially contradictory to their oral evidence before the Court. The contradiction is on a very material point. The inevitable conclusion is that the prosecution failed to prove a vital ingredient of the offence of murder with which the Appellant was charged.

I agree with my learned brother that the prosecution failed to prove an essential ingredient of the offence in that it failed to prove that the act of the Appellant led to death of the deceased and thus failed to prove its case against the Appellant beyond reasonable doubt.
It is for the above and the fuller reasons ably set out in the lead judgment that I too find merit in this appeal and allow same.
I also set aside the judgment of the lower Court convicting the Appellant and enter a verdict of discharge and acquittal in his favour.

Appearances:

Nas Ogunsakin, Esq. For Appellant(s)

Olusegun T. Olaotan, Esq., Director of Public Prosecutions, Ministry of Justice, Ogun State (with Miss O. O Afolabi, Senior State Counsel) For Respondent(s)

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