CORAM

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MOHAMMED AMBI – USI DANJUMA, JUSTICE COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JUSTICE COURT OF APPEAL

FREDERICK OZIAKPONO OHO, JUSTICE COURT OF APPEAL

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PARTIES

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CLEMENT OFONI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, CRIMINAL LAW, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant was convicted for the offences of Conspiracy to commit Murder and Murder and accordingly sentenced to death (by hanging) by the trial High Court of Edo State; Coram: R. Irele – Ifijeh J., in its Judgment delivered on April 29, 2019.

Dissatisfied with the said conviction and sentence passed thereupon, the Appellant proceeded to file the instant appeal, predicated on 4 (four) grounds contained in the Amended Notice of Appeal filed on May 21, 2020, thereby urging this Court to allow the appeal and set aside the conviction and sentence passed thereupon by the trial Court.

 

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HELD

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Appeal allowed.

 

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ISSUES

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Whether or not, from the totality of evidence led in this instant case and upon a proper evaluation of the evidence on record, the Court below was justified in holding that the Respondent proved beyond reasonable doubt the two-count charge against the Appellant even when the Appellant’s evidence was the only eye-witness account to the said offences, the scene of crime established by the PW1’s evidence was at variance with the scene of crime contained in the charge, proof of death and cause of death were still pending, coupled with other fundamental flaws inherent in this case.?

Whether or not from the totality of evidence led in this instant case and upon a proper evaluation of the evidence on record, the Court below was not duty bound to consider all defences and evidence on record which favourably avails the Appellant?

 

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RATIONES DECIDENDI

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OFFENCE OF CONSPIRACY– INGREDIENTS OF THE OFFENCE OF CONSPIRACY

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“My lords, on the one hand in a count alleging the offence of Conspiracy the essential ingredients of the offence of conspiracy which must be established beyond reasonable doubt by the Prosecution either by direct or confessional or circumstantial evidence, are:

1. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means;

2. Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more parties in furtherance of the agreement, and

3. Specifically that each of the accused individually participated in the conspiracy. See Tanko V. State (2009) All FWLR (Pt. 456) 2013 @ p. 2014.” –Per Georgewill J.C.A

 

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OFFENCE OF MURDER– INGREDIENTS OF THE OFFENCE OF MURDER

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“On the other hand, in a count alleging Murder the law is very well settled that the Prosecution has the onus, an onus which in criminal trials never shifts, to prove the following essential elements of the offence of Murder, namely:

1. The fact of the death of the deceased;

2. That the death of the deceased was caused by the act of the Accused person and

3. That the act of the Accused person was intentional with knowledge that death or grevious bodily harm was the probable result. See Idowu V. The State (2000) 12 SC (Pt. 1) 16; Nwanze V. The State (1996) 2 NWLR (Pt. 428) 1; Archibong V. The State (2004) 1 NWLR (Pt. 855) 488; The State V. Maharaji (2000) 1 LRN 107; Friday Akpan V. The State (1994) 8 NWLR (Pt. 361) 279.” –Per Georgewill J.C.A

 

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CRIMINAL LAW – BURDEN/ONUS OF PROOF

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“In law it is the Respondent that has the unshifting burden of proving the essential elements of the offences of conspiracy to Murder and Murder as to both the physical elements, that is the death of the deceased, Monday Dominic, allegedly caused by the Appellant and the mental element in the Appellant to do so intentionally with the knowledge that death or previous bodily harm was the probable result of his act. Thus, in law a failure on the part of the Respondent to prove any or all of the essential elements that constitute the offences of Conspiracy and of Murder with which the Appellant was charged would be fatal to the charges not proved as required by law.” –Per Georgewill J.C.A

 

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EVIDENCE- TYPES OF EVIDENCE WITH WHICH TO PROVE GUILT OF AN ACCCUSED PERSON

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“…However, it must be pointed out for once that in proving the guilt of the Appellant, the Respondent has open to it three basic types of evidence with which to prove the guilt of Accused person, namely;

1. Confessional statement;

2. Circumstantial evidence and

3. Evidence of eye witness.

See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 ? 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.” –Per Georgewill J.C.A

 

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EVIDENCE- CAUSE OF DEATH- CIRCUMSTANCES WHEN MEDICAL EVIDENCE WOULD BE DISPENSED WITH AS TO CAUSE OF DEATH

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“It is true that in law and as was rightly opined by the Court below once there is sufficient  credible evidence upon which the fact of the cause of death of the deceased can be inferred, it is not vital to have recourse to a medical report and thus in such circumstance in the absence of medical report a Court of law can legitimately infer the cause of death from the evidence and circumstances of a case. See Ogbo V. The State (2007) 1 NWLR (Pt. 1028) 635.” –Per Georgewill J.C.A

 

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EVIDENCE – WHETHER EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS A PRIMARY FUNCTION OF THE TRIAL COURT

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“I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the Court below and once that Court discharges that duty satisfactorily on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct, even if the reasons which is the pathway to the conclusion or finding turns out to be wrong. See Ogunniyi V. The State (2012) lPElR – 8567(CA). See also Amadi V. FRN (2011) Vol. 9 LRCNCC 177 @ pp. 179 -180; Afolalu V. The State (2012) Vol. 10 LRCNCC 30 @ p. 40; Aiguokhian V. The State(2004) 7 NWLR (Pt. 873) 565; Ubierho V. State (20D.?) 2 SC (Pt.1) 18 @ pp. 21 – 22; Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198.”

–Per Georgewill J.C.A

 

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FINDINGS OF COURT- INTERFERENCE WITH THE FINDINGS OF THE TRIAL COURT BY AN APPELLATE COURT

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“It is thus the law that an Appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the Court below was perverse.

However, an Appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse.

In such a case, the Appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also See Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821.” -Per Georgewill J.C.A

“In considering the findings of a trial Court in cases in which a need for re-evaluation of evidence on the printed record has been made out by an Appellant, it is to be borne in mind by Appellate Courts that it is only when such findings are perverse and thus not supported by the proved evidence or are based on extraneous matters or merely speculative that the need to interfere to make appropriate findings in line with the dictates of the justice of the case may arise. However, in doing so it must also be borne constantly in mind by Appellate Courts that it is not every minor mistake or error in the judgment appealed against that will result into its reversal. See Ali Gajebe Madaki V. The State (1996) 2 NWLR (Pt. 429) 171 @ p. 175, where it was stated inter alia thus:

“It is noted that every mistake or error in a judgment that will result in the reversal of the judgment of the Court below. It is only when such a mistake or error is substantial in that it has occasioned a miscarriage of justice that the Appellate Court is bound to interfere”

See also Anekwe V. The State (2014) LPELR 105(SC); Adebayo V. The State (2014) LPELR 343(SC); Osuji V. Ekeocha (2009) 10 SCM 72 @ pp. 97 – 98; Shofolahan V. The State (2013) LPELR 20998 CA.” –Per Georgewill J.C.A

 

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EVIDENCE- JUDICIAL NOTICE – POWER OF COURT TO TAKE JUDICIAL NOTICE OF FACTS BEING PART OF RECORD OF APPEAL

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“All the persons who made statements to the Police and could have given independent evidence as to the fact of the Appellant and his Co -Accused person being the last to be seen with the deceased while he was alive as passenger on his Motor Bike on 27/7/2012 and also identified the corpse of the deceased as the person last seen with the Appellant and his Co – Accused person were not called to testify by the Respondent at the trial before the Court below, a fact which being part of the Record of Appeal, this Court has the latitude and competence by virtue of Section 22(1) and (2) of the Evidence Act 2011 to take judicial notice thereof. See Deriba V. State (2016) LPELR – 40345 (CA) per Georgewill JCA.”

 

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DECISION OF COURT – HOW DECISIONS OF COURTS ARE REACHED

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“It needs to be further reiterated that in law decisions of Courts are not reached by majority of vote of witnesses but by the quality of evidence led and thus does not depend on the hordes or host of witnesses called. A lone witness with credibility, cogency and veracity will suffice. See Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538; Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635.

It is for the above reasons that in law so long as the evidence adduced by the Prosecution is sufficient to establish the case as required by law, it is immaterial to the Court that a particular witness was not called or that a particular document was not tendered in evidence. See Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 ? 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.”

–Per Georgewill J.C.A

 

 

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CRIMINAL LAW – DUTY OF THE PROSECUTION TO CALL VITAL WITNESSES

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“My lords, a careful perusal of the evidence led reveals sadly that the Appellant’s conviction was based almost exclusively and or principally on Exhibits B and B2, the extra judicial statements of the Appellant. I agree that the Respondent was not under any duty to call all available or listed witness in proof of its case but it is incumbent on the Respondent to call vital and necessary witnesses, in the absence of whom the guilt of the Appellant cannot be proved beyond reasonable doubt as required by law. In this regard, hold that the evidence of PW1 taken alone was sheer bunkum and proved nothing, absolutely nothing against the Appellant, not even if the standard of proof were to be civil standard of proof on a balance of probability or preponderance of evidence, talk less of proof beyond reasonable doubt.” –Per Georgewill J.C.A

 

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CRIMINAL LAW – HOW DOUBT IN A CRIMINAL TRIAL MUST BE RESOLVED

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“…It is the law that where any real doubt, not mere fanciful doubt, exists in the fact of a case in a criminal trial, the doubt should be resolved in favour of the Appellant because and indeed it is better to allow ninety nine guilty men to go scot – free than to convict and punish one innocent man. I find and I so hold that the Respondent failed woefully to prove all or any of the essential elements of the offences of Conspiracy to Murder and or Murder as alleged against the Appellant beyond reasonable doubt as required by law. His conviction and sentence was therefore, done in grave error. See Stephen Ukorah V. The State (1977) 4 SC 167 @ p. 177. See also Onafowokan V. The State (1987) 18 NSCC (Pt. 2) 1101 @ p. 1107; Muka & Ors. V. The State (1976) 9 & 10 SC 305 @ pp. 325 – 326; Ibeh V. The State (1997) 1 NWLR (Pt. 484) 632; Kayode V. The State (2016) All FWLR (Pt. 835) 203 @ p. 231; Ubani & Ors V. The State (2003) 18 NWLR (Pt. 851) 224 @ pp. 228 – 229; Rabiu V. The State (2005) 7 NWLR (Pt. 925) 491 @ pp. 514 – 515; Nwaturuocha V. The State (2011) 197 LRCN 114 @ p. 121.” –Per Georgewill J.C.A

“Now, in law, any reasonable doubt raised as a result of lack of any credible evidence from the Respondent, save the unreliable and retracted confessional statement of the Appellant unsupported by any independent evidence must necessarily be resolved in favour of the Accused person. See Madu V. The State (2012) LPELR 122009 (SC). See also Famakinwa V. The State (2012) LPELR 972010 (CA); Umar V. The State (1988) LPELR 171986 (SC).” –Per Georgewill J.C.A

 

 

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EVIDENCE- RETRACTION OF A CONFESSIONAL STATEMENT

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“My lords, in arriving at the above conclusions, I am aware that the mere fact that a confessional statement, as in Exhibits B and B2 were retracted at the trial does not render them inadmissible as that would only go to the issue of the weight to be attached to it, taking into consideration the surrounding circumstances of the case and other pieces of independent evidence as may have been led by the Prosecution at the trial. However, in this appeal, even with Exhibits B and B2, the retracted confessional statements of the Appellant, the law is that in a criminal trial if the Accused person retracts his confessional statement it would be necessary that the trial Court in deciding whether or not to attach any weight to such retracted confessional statement, which does not cease to be evidence before it merely because it was retracted, would take into consideration the following factors, namely:

1. Is there anything outside the confession to show that it is true?

2. Is it corroborated?

3. Are the relevant statements made in it of facts and true as far as can be tested?

4. Was the prisoner one who had the opportunity of committing murder?

5. Is his confession possible?

6. Is it consistent with other facts which have been ascertained been proved?

See Rex V. Sykes (1913) 8 CAR 233. See also Kanu V. The King (1952) 14 WACA 30; Dawa V. The State (1980) 8 -11 SC 236; The Queen V. Obiasa (1962) 1 All NLR 651; Emmanuel Nwaebonyi V. The State (1994) 5 (Pt. 343} 138.” –Per Georgewill J.C.A

 

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EVIDENCE- WHETHER THE PROSECUTION IS BOUND TO CALL A HOST OF WITNESSES

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“However, I agree that in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the grievous nature of offences charged in so far as corroboration is not required by law. In law therefore, no certain or particular number of witnesses is required to prove the guilt of an Accused person. A sole credible and cogent witness would suffice as no hordes or host of witnesses is required. See Alhaji Mua?zu Ali V. The State (2015) 5 SCM 26; Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonne V. IGP. (1959) 4 FSC 203; Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80.” –Per Georgewill J.C.A

 

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EVIDENCE- EVIDENCE OF AN UNTRUTHFUL WITNESS

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“In law, an untruthful witness deserves no according with any credibility by the Court and thus a judgment founded on belief in the evidence of such an untruthful witness is worthless and a worthless evidence does not assume the toga of credibility merely because the trial Court had said “I believe” to it. See Alhaji Akiba V. Opaleye (1974) 11 SC 189 @ p. 403. See also Oladehim V. Continental ile Nig. Ltd (1978) 2 SC 17; Board of Custom & Excise V. Alhaji Barau (1982) LPELR 788; Fabuminyi V. Obaje (1968) NWLR 24; Woluchem V. Gudi (1981) 5 SC 291; Ezemba V. Ibeneme (2009) 14 NWLR (Pt. 798) 623.” –Per Georgewill J.C.A

 

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CRIMINAL LAW- REQUIREMENTS IN CRIMINAL CASES INVOLVING DEATH SENTENCE

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“My lords, while guilt proved beyond reasonable doubt must be punished according to law, the innocent must be set free and not punished. The sentence of death upon conviction for Murder is not to be handed down carelessly, thoughtlessly, and or lackadaisically without clear evidence of the guilt of the Accused person. It is only to be passed when it is clear that the Accused person has been proved to have committed the offence of Murder as alleged against him by the State beyond reasonable doubt. Thus, the reasoning behind such a judgment sending a man to the gallows must be clear on the face of the judgment, and if I may add should be impeccable and the product of logical thinking and sound legal deductions. See Felix Nwosu V. The State (1986) 5 NWLR (Pt. 348) 359,where the erudite Eso JSC., (God bless his soul) had waxed inter alia thus:

“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which facts lead to conviction as clearly found and the legal deduction thereupon carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning”

Indeed, in law it is better, and I think it is worth being reiterated here with all the seriousness it deserves, for ninety nine guilty persons to go scot – free than for one innocent person, such as the Appellant in the instant case, to be convicted and punished for offence he has not been proved to have committed! See Abeke Onafowokan V. The State (1987) 7 SCNJ 238. See also Saidu V. The State (1992) 1 NWLR 49.” –Per Georgewill J.C.A

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1. Criminal Code Cap 48, Vol. II Laws of Defunct Bendel State of Nigeria 1976 as  applicable to Edo State.

2. Evidence Act, 2011

 

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