CORAM

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PARTIES

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CPL GODWIN NANNA

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THE STATE

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Appellant with 3 others were arraigned before the Akwa Ibom High Court, on a two count charge of conspiracy and murder. They were alleged to have killed a commercial motorcyclist while on patrol along Abak Road. That three Police men from the “C” Division of the State Police command on that day opposite the Federal Secretariat, seized 3 motorcycles belonging to some persons, amongst which was the deceased. Almost immediately, a police car arrived the scene with the Appellant (3rd accused) on the wheels, he met the cyclists struggling with the Policemen who impounded their motorcycles and two cyclists were able to wrestle their motorcycles from the policemen and escaped, leaving the deceased behind with his motorcycle. The 2nd accused, a senior officer, was Inspector Akpaette Moses sat at the front passenger seat of the police car. It was in evidence that the 2nd accused fired some shots to scare the crowd that had gathered and the third shot was aimed at the deceased who was hit on the thigh. He died on his way to the teaching hospital. The 3 other police men joined their colleague in the car and drove away from the scene of crime. The trial court after hearing of witnesses and consideration of counsel closing addresses, found the Appellant guilty of the two offences charged; namely conspiracy and murder. He was accordingly sentenced to 14 years for conspiracy and death by hanging for murder. Dissatisfied with the conviction and sentence, the Appellant appealed to the Court of Appeal, holden at Cabalar via his Amended Noticed of Appeal contending that the evidence presented by the Respondent was deficient and could not have been strong enough to ground his conviction.

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HELD

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Appeal Allowed

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ISSUES

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Whether from the totality of evidence adduced at the trial, the prosecution had proved the two count charge of conspiracy to murder and murder against the Appellant and others beyond reasonable doubt, and had clearly debunked the defence of self defence as contained in Force Order 237 relied upon by the Appellant.

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RATIONES DECIDENDI

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BURDEN OF PROOF – WHETHER THE BURDEN OF PROOF IN CRIMINAL TRIALS SHIFTS

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“It is trite that the burden of proof is squarely on the Respondent from beginning to finish in a criminal trial because it does not shift, see Nweze Vs. State (2017) LPELR-42344(SC) which held thus:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 531; Solola vs. The State (2005) 5 SC (Pt. 1) 135.” Per GALINJE, J.S.C –

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STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL TRIAL

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‘The standard of proof is also settled and it is beyond reasonable doubt as reiterated in the case of Osetola & Anor. State (2012) LPELR-9348(SC) as follows:
“Section 138 (1) of the Evidence Act makes it mandatory that the standard of proof required in criminal trials by the prosecution is proof beyond reasonable doubt. Proof beyond reasonable doubt was explained in Miller v. Minister of Pensions 1947 2 ALL E. R. p.372 at 373 as follows: Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice. See Lori & Anor. Vs. State 1980 12 NSCC 269.” Per RHODES-VIVOUR, J.S.C –

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OFFENCE OF MURDER – INGREDIENTS A PROSECUTION MUST PROVE TO ESTABLISH THE OFFENCE OF MURDER

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“The offence of murder has settled ingredients identified by our superior courts which must all be proved beyond reasonable doubt to justify a conviction and these were restated in the case of Idiok Vs. State (2008) LPELR-1423(SC) thus:
“It is now firmly settled that for the prosecution to succeed in a murder charge under Section 319(1) of the Criminal Code (as in the instant case) it must prove beyond reasonable doubt that:
There was a killing.
The killing was unlawful as prohibited by Section 316 of the Criminal Code.
(iii) It was the act or omission of the accused person that caused the death of the deceased.
(iv) The accused intended to cause the death of the deceased.”
See also the cases of Grace Akinfe Vs. The State (1988) 3 NWLR (PT.85) 729 @ 745; (1988) 7 SCNJ 226; Okoro Vs. The State (1988) 5 NWLR (PT.94) 255; (1988) 12 SCNJ. 191; Ogba Vs. The State (1992) 2 NWLR (PT.222) 164; (1992) 2 SCNJ. 106; Akpan Vs. The State (1994) 9 NWLR (PT.368) 347; (1994) 12 SCNJ 140; and Abogede Vs. The State (1996) 4 SCNJ. 223 just to mention but a few. In other words, where a person is charged with the offence of murder, the prosecution must prove:
(a) Whether the person alleged to have been killed is dead.
(b) The cause of death and
(c) Whether any act of the accused person is the cause of his death. See the case of Sule Ahmed (Alias Eza) Vs. The State (2001) 18 NWLR (PT. 746) 623 @ 641.-

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OFFENCE OF MURDER – WAYS OF PROVING AN OFFENCE OF MURDER

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“On the methods or various ways an offence can be proved, several authorities have identified and settled 3 major ways which are clearly spelt out in the case of Idiok Vs. State (supra) as follows:
“The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person.”-

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OFFENCE OF MURDER – DUTY OF THE PROSECUTION IN ESTABLISHING THE GUILT OF AN ACCUSED PERSON

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“It is trite that in establishing the guilt of the accused person, the prosecution must prove the link or connection between the appellant in this case and the cause of death, see Ochiba Vs. State (2011) LPELR-8245(SC) where the apex court said:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process it must also produce vital witnesses to testify for the prosecution.” Per ADEKEYE, J.S.C-

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CAUSE OF DEATH – PROOF OF CAUSE OF DEATH

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“The cause of death of a victim must be the act of the accused person and it must be established with certainty, see Aiguoreghian & Anor Vs. State (2004) LPELR-270(SC) where TOBI, JSC (of blessed memory) said:
“In Oguntolu vs. The State (1996) NWLR (Pt.432) 503, this Court held that in a charge of murder, the death of the victim must be caused by the act of the accused. See also Ononuju vs. State (1976) 5 SC 1; Onyenankeya vs. State (1964) NMLR 34; Idowu vs. State (2000) 7 SC (Pt.11) 50 (2000) 12 NWLR (Pt. 680) 48; Ahmed vs. State (2001) 12 (Pt. 1) 135; (2001) 18 NWLR (Pt. 746) 622. The cause of the death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act. See Adekunle vs. State (1989) 12 SC 203; (1987) 5 NWLR (Pt. 123) 505: Oforlete vs. State (2000) 12 NWLR (Pt. 681) 415: (2000) 7 SC (Pt. 1) 80.
There are however, instances where cause of death could be inferred from the circumstances of the case. See Adekunle vs. State (supra); Oguonzee vs. State (1998) 5 NWLR (Pt. 551) 521; (1998) 4 SC 110.” See Per TOBI, J.S.C ( Pp. 42-43, paras. G-D) –

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CONSPIRACY- DEFINITION OF CONSPIRACY

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“Conspiracy has been defined in a plethora of judicial decisions, one of which is OFFORDIKE VS. STATE (2019) LPELR- 46411 (SC) which held thus:
“Generally, conspiracy is an agreement by two or more persons to commit an offence or do an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct which furthers the agreement. The Oxford Advance Learners Dictionary 6th Edition also defines conspiracy as “a secret plan by a group of people to do something harmful or illegal.”-

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OFFENCE OF CONSPIRACY – PROOF OF THE OFFENCE OF CONSPIRACY

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“In a charge of conspiracy, proof of actual agreement is not always easy to come by as such agreements are hatched in secrecy. Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke vs. State (2013) 16 NWLR (pt 1381) 556, Oduneye vs. State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State vs. Salawu (2011) 18 NWLR (Pt 1279) 580.” Per OKORO, J.S.C.
The inference the trial judge drew from the facts before him as to lead to the finding that conspiracy was proved are acts after the shooting which at best can raise a charge of accessory after the fact. I do not agree with the trial judge that the accused persons leaving the scene of crime together without more amounts to conspiracy for the charge of murder. After all they left in the car they came with to their station. To convict for conspiracy, the circumstantial evidence must be of such quality that irresistibly compels the court to make an inference as to the guilt of the accused. –

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PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

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“The burden and standard of proof on the prosecution is not an easy one, my lord NWEZE JSC in the case of Akinlolu Vs. State (2015) LPELR-25986(SC) had this to say:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed conterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,” Dibie v. State (2007) LPELR-941 (SC); Dimlong v. Dimlong [1998] 2 NWLR (Pt. 538) 381, 178; State v. Gwangwan (2015) LPELR-24837 (SC). I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (Pt. 868) 166, 179.Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. The cases on this point are many. Only a handful will be cited here, Okere vs. State (supra) 415 – 416; Sabi vs. State [2011] 14 NWLR (Pt. 1268) 421; Iwunze vs. Federal Republic of Nigeria [2013] 1 NWLR (Pt. 1324) 119; Njoku vs. State [2013] 2 NWLR (Pt. 1339) 548; Osuagwu vs. State [2013] 5 NWLR (Pt. 1347) 360; Ajayi vs. State [2013] 9 NWLR (Pt. 1360) 589.”-

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act 2011|

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