(2018) LPELR-45040(CA)

Transcription

1 EGITIE v. STATE CITATION: JIMI OLUKAYODE BADA PHILOMENA MBUA EKPE In the Court of Appeal In the Benin Judicial Division Holden at Benin ON THURSDAY, 19TH JULY, 2018 Suit No: CA/B/192C/2014 MUDASHIRU NASIRU ONIYANGI Before Their Lordships: Between FESTUS EGITIE - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "The guilt of an accused person can be proved through any of the following methods:- (a) through confessional statement; (b) through circumstantial evidence; or (c) through the testimony of eyewitnesses. See the following cases:- - IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100; - OGBA VS STATE (1992) 2 NWLR Prt 222 Page 146; - EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666; - ITU VS THE STATE (2016) 5 NWLR Part 1506 Page 443; - IDOWU VS STATE (2000). 80 LRCN Page 2788."Per BADA, J.C.A. (P. 13, Paras. A-D) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Nature of the offence of conspiracy; what prosecution must prove to ground the offence of conspiracy "Conspiracy has been held in a number of decided cases to be an agreement by two or more persons to do a lawful act by unlawful means. The two or more persons must be found to have combined in order to ground a conviction. See the following cases:- - OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39-40; - SULE VS STATE (2009) 17 NWLR Part 1169 Page 33; - YAKUBU VS THE STATE (2014) LPELR (SC); - GARBA VS C.O.P. (2007) 16 NWLR Part 1060 Page 378 at 400; - PATRICK NJOVENS VS THE STATE (1973) 5 SC Page 17; - KAYODE VS THE STATE (2016) LPELR (SC). The ingredients of the offence of conspiracy are:- - There must be an agreement between two or more persons to do an unlawful act; - They must agree to do a lawful act by illegal means."per BADA, J.C.A. (Pp , Paras. F-D) - read in context

4 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: How to establish/prove the offence of conspiracy "The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned. In this case, there is no direct evidence of conspiracy between the Appellant and the other accused persons to commit murder but I agree with the submission of Learned Counsel for the Respondent that the learned trial Judge inferred conspiracy from the proved facts of murder in this case."per BADA, J.C.A. (P. 14, Paras. D-G) - read in context

5 4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder "In the case of murder, the ingredients of the offence of murder are:- (a) that death of the deceased occurred; (b) that the death of the deceased was caused by the accused or accused persons on trial; and (c) that it was the act or omission of the accused that caused the death of the deceased victim such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence. The ingredients mentioned above must co-exist. If any of them is missing, then, the offence of murder cannot be said to have been proved, hence, the prosecution cannot obtain conviction of murder against the accused person and the Court must exonerate him and acquit him of the offence of murder. The prosecution has the heavy task of proving its case or the aforementioned ingredients beyond reasonable doubt. That is the standard of proof short of which the prosecution shall fail. See the following cases:- - OGBA VS STATE (Supra) - NWAEZE VS STATE (1996) 3 NWLR Part 222 Page 164; - GIRA VS STATE (1996) 2 NWLR Part 443 Page 375."Per BADA, J.C.A. (P. 15, Paras. A-F) - read in context

6 5. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Need for Courts to be meticulous when handling murder cases "In this appeal under consideration, the Appellant was convicted of murder which is a capital offence. The conviction of murder carries a sentence of death without any option. Therefore, care must be taken by the trial Judge in ensuring that the evidence produced by the prosecution unquestionably point to the guilt of the accused person."per BADA, J.C.A. (P. 16, Paras. A-B) - read in context 6. CRIMINAL LAW AND PROCEDURE - COMMON INTENTION: Instances when intention can be inferred in murder cases "...As could be seen from the testimonies above, the Appellant was not just at the scene of crime, but an active participant in the crime of murder of Jonathan Akpome. I am of the view that the Appellant is a principal party in the commission of the offences of conspiracy to murder and murder. The learned trial Judge was therefore right when she inferred common intention on the part of the Appellant and his cohort to kill the deceased, Jonathan Akpome. See the following:- - Sections 7 and 8 of the Criminal Code Law Cap C21 Volume 1, Laws of Delta State of Nigeria; - ALARAPE VS STATE (2010) 5 NWLR Part 705 at Page 79; - OYAKHIRE VS STATE (2006) 15 NWLR Part 1001 Page 157."Per BADA, J.C.A. (Pp , Paras. C- A) - read in context

7 7. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; what does proof beyond reasonable doubt mean "It is trite law that in criminal prosecutions, the required standard is that of proof beyond reasonable doubt. The burden on the prosecution in a criminal trial has been succinctly enshrined in Section 135(1) of the Evidence Act 2011 which provides as follows:- "If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt." Although it is trite that proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt. See the following cases:- - DIBIE VS STATE (2007) 3 SCNJ Page 160 at ; - JULIUS ABIRIFON VS THE STATE (2013) LPELR (SC); - ADIO VS THE STATE (1986) 5 SC Page 194 at ; - ITU VS THE STATE (2016) 5 NWLR Part 1506 Page 443."Per BADA, J.C.A. (Pp , Paras. B- A) - read in context

8 8. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal "The Learned Counsel for the Appellant challenged the power of the trial Court to evaluate evidence. I am of the view that since the finding of the trial Court as far as the Appellant is not perverse and having been based on credible evidence before the trial Court as shown earlier in this Judgment, therefore, it is trite that evaluation and ascription of probative value to such evidence are the primary function of the trial Court which saw, heard and assessed the witnesses while they testified before it. The Appellate Court will not interfere with such findings of fact nor will it substitute its own view of the facts to those of the trial Court. The findings of the trial Court on the Appellant is therefore correct."per BADA, J.C.A. (P. 19, Paras. A-D) - read in context

9 9. EVIDENCE - CONTRADICTION IN EVIDENCE: Position of the law as regards contradictions in evidence "The Learned Counsel for the Appellant also contended that the evidence relied upon by the trial Court is replete of contradictions and inconsistencies, but I am of the view that it is not every inconsistency in the evidence of the prosecution witnesses that could be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus create doubt in the mind of the trial Court that an accused is entitled to benefit therefrom. But it is not the case in the Appellant's case under consideration. See the following cases:- - AGBO VS STATE (2006) NWLR Part 977 Page 548; - GOLDEN DIBIE VS STATE (Supra); - OGBU VS THE STATE (2007) 2 SCNJ Page ; - BASIL AKPA VS STATE (2008) 14 NWLR Part 106 Page 72; - ABOGEDE VS STATE (1996) Volume 37 LRCN Page 674 at 684 paragraphs A - B."Per BADA, J.C.A. (Pp , Paras. E-C) - read in context

10 10. EVIDENCE - TAINTED WITNESS: Whether blood relationship between the victim of the offence and the prosecution witness in the trial of the offender makes the witness a tainted witness "The Learned Counsel for the Appellant has also contended that PW1 - PW5 are tainted witnesses because they are blood relations and members of the group led by the deceased Jonathan Akpome. I am of the view that from the evidence on record in this case, the Respondent's witnesses are not tainted witnesses. There is nothing on record to show that the Respondent's witnesses had any interest to serve other than giving a vivid and accurate account of how the deceased, Jonathan Akpome was murdered by the Appellant and his cohorts. See the following cases:- - OMOTOLA VS STATE (Supra); - OLALEKAN VS STATE (2002) FWLR Part 91 Page 1605; - ITU VS STATE (2016) 5 NWLR Part 1506 Page 443."Per BADA, J.C.A. (P. 20, Paras. C-G) - read in context

11 JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Delta State High Court of Justice, Orerokpe, delivered on the 18th day of December, 2013 in Charge No. HOR/3C/2012 Between THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITIE (i.e. the Appellant) (4) DAVID IRIRI (5) ALEX AKPALLALA (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI. The Appellant was found guilty and convicted for the offences of conspiracy to commit murder and murder of one JONATHAN AKPOME and sentenced to five years imprisonment and death by hanging respectively. Briefly, the facts of the case are that the Appellant who was the 3rd accused at the lower Court was charged together with seven other persons for the offence of conspiracy to commit murder and murder. In proof of the case, the prosecution called witnesses and tendered in evidence a total of twenty-one exhibits. The 3rd, 5th, 7th and 8th accused persons each gave evidence and did not call any witness to testify on their behalf. 1

12 The 1st, 2nd, 4th and 6th accused persons did not enter their defence and did not call any witness in support of their case. They rested their case on the case of the prosecution. By consent, Counsel to the accused persons and the prosecution filed and adopted their written addresses. At the conclusion of hearing, in a Judgment delivered on 18/12/2013, the 1st, 2nd and 4th accused persons were discharged and acquitted, while the 3rd, 5th, 6th, 7th and 8th accused persons were convicted and sentenced to five years imprisonment for conspiracy to commit murder and death by hanging for the offence of murder. The Appellant who is dissatisfied with the Judgment of the lower Court, appealed to this Court. The Learned Counsel for the Appellant formulated a lone issue for the determination of the appeal. The issue is reproduced as follows:- Was the learned trial Judge right in law in convicting Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal). On the other hand, the Learned Counsel for the Respondent also formulated a lone issue for the determination of the appeal. The said issue is reproduced as follows:-

13 2

14 Whether the learned trial Judge was right in law when she held that the Respondent proved the offence of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt. At the hearing of this appeal on 22/5/2018, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 18/12/2013. The Amended Notice of Appeal was filed on 8/12/2016 and it was deemed as properly filed on 25/4/2017. The Appellant s brief of argument was filed on 6/6/2017 while the Appellant s reply brief of argument was filed on 20/11/2017 and it was deemed as properly filed on 22/5/2018. The Learned Counsel for the Appellant adopted and relied on the two briefs of argument as his argument in urging that this appeal be allowed. The Learned Counsel for the Respondent referred to the Respondent s brief of argument filed on 30/10/2017 but deemed as properly filed on 22/5/2018. He adopted and relied on the said brief as his argument in urging that this appeal be dismissed.

15 3

16 I have perused the lone issue formulated by Counsel for both parties for the determination of this appeal. The issues are more or less the same. I will therefore rely on the lone issue formulated for the determination of the appeal by Counsel for the Appellant. ISSUE FOR THE DETERMINATION OF THE APPEAL Was the learned trial Judge right in law in convicting Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal). The Learned Counsel for the Appellant submitted that the case presented by the prosecution did not warrant Appellant s conviction as the prosecution failed to prove his guilt beyond reasonable doubt as required under Section 135 of the Evidence Act He stated that a person charged with a criminal offence can be lawfully convicted only if his guilt is proved beyond reasonable doubt. He relied on the case of MCGREEVY VS DPP (1973) 1 All ELR Page 503. The Learned Counsel for the Appellant submitted that the evidence produced by the prosecution fell short of the required standard. He contended that the Judgment is predicated on the learned trial Judge s general reference to 4

17 evidence of prosecution witnesses. He went further that the particular witness who gave evidence relied upon should have been identified and named. He went further in his argument that in view of the fact that there is evidence before the Court that Okwidiemor Community had been divided into two because of crisis ought to have been taken into consideration in assessing the credibility of witnesses. It was contended on behalf of the Appellant that the assertion that PW1 PW5 are eyewitnesses did not constitute evaluation of evidence of the said witnesses, and that it is erroneous to claim that they were eyewitnesses. It was also contended that the boys the deceased sent to buy bread were beaten up, tied up and cut with cutlasses were not supported by evidence. The failure to call the two boys is fatal to the case of the prosecution. Learned Counsel relied on the case of SUNDAY VS STATE (2010) All FWLR Part 548 Page 874. He contended further that the record of appeal showed that the evidence of the prosecution witnesses is replete with inconsistencies and contradictions which rendered the evidence unreliable. 5

18 He went further that for example to show that evidence of PW1 to PW5 were contradictory:- - as to the person the deceased addressed his question PW1 claimed that the question was addressed to 8th accused and that the 8th accused responded that the boys should attack the deceased whereas PW2 did not say that 8th accused said any word or give any order to attack the deceased. - the PW3 in her own case stated that he could not say if the deceased asked any question. - PW4 in her own case stated that the 8th accused was not at the scene of crime. - PW5 in his own case stated that the deceased addressed his question to Benjamin Azigbo. (See pages of the Record of Appeal). Learned Counsel for the Appellant submitted that with the contradictions in the evidence of PW1 PW5 that the learned trial Judge ought to have rejected the prosecution s evidence as unreliable. He went further that her reliance on the contradictory evidence in coming to her decision is fatal to the Judgment. He relied on the case of: - CHRISTOPHER ONUBOGU VS THE STATE (1974) 9 10 SC Page 9; and 6

19 - OKAFOR VS STATE (2006) All FWLR Part 398 at Page 719; where it was held that:- Where a witness has made previous statements inconsistent with the evidence given at trial, the Court should disregard his evidence as unreliable. The Learned Counsel for the Appellant referred to the evidence of the supposed eyewitnesses, PW2 and PW3, which the learned trial Judge described as not being credible while discharging the 1st, 2nd and 4th accused person as the same evidence now being relied upon in convicting the 3rd accused. It was submitted that none of the prosecution witnesses identified the Appellant. And mentioning a name in the extra-judicial statement of a witness admitted in evidence to contradict the witness is not proof of identification of the Appellant. Page 273 of the Record of Appeal was also referred to where the learned trial Judge said that the 3rd accused by Exhibit M has placed himself at the scene of crime. But the Learned Counsel for the Appellant referred to Exhibit M at page 65 68A of the records which he argued contained no description of how the 3rd accused attacked Jonathan rather that it is a narration of how the 3rd accused was attacked and shot by the deceased.

20 7

21 It was also submitted on behalf of the Appellant that being at the scene of crime does not amount to guilt of committing the offence of murder. The prosecution must lead unequivocal evidence to show that the Appellant joined in inflicting injuries on the deceased which led to his death. He relied on the case of:- YAKUBU VS STATE (1980) 3 4 S.C. Pages 84 at 94, where it was held by the Supreme Court among others that:- It is trite law that mere presence and callousness at the scene of the crime does not as a matter of law render the person so present or callous guilty of the crime. There must be clear evidence that either prior to, or at the time of, the commission of the offence, the person did something or omitted to do any act such as aiding and abetting within the purview of Section 7 of the Criminal Code to facilitate the commission of the offence In my view, to render such a person liable 8

22 for the offence, it must be shown that being present, he gave some encouragement or assistance, either by overt act or such omission as can amount indirectly to encouragement to the principal offender or that some circumstances exist upon which encouragement by him can be inferred The Learned Counsel for the Appellant contended that none of the circumstance mentioned above was shown to exist in this case. He went further that the evidence led by the prosecution witnesses are so contradictory and inconsistent that it will be unsafe to base the conviction of the Appellant on such evidence. He finally urged that this appeal be allowed and the accused person be discharged and acquitted. The Learned Counsel for the Respondent in his submission in the response to the Appellant s submission stated that there is no direct evidence of conspiracy between the Appellant and the other accused persons to commit the substantive offence. And that in convicting the Appellant, the learned trial Judge inferred conspiracy from the proved facts of murder. 9

23 The Learned Counsel for the Respondent submitted that the prosecution proved the ingredients of the offence of murder against the Appellant beyond reasonable doubt. He referred to the evidence of PW6 and PW7 to show that the deceased, Jonathan Akpome is dead. He submitted that it was the act of Appellants and others that caused the death of the deceased. He stated that PW1, PW2, PW3, PW4 and PW5 in their evidence gave a vivid account of the role played by the Appellant in the assault on the deceased with lethal weapons that led to the bodily injury that resulted in the deceased s death. The evidence of PW2 at page 195 lines 20 to 29 of the record of appeal was referred to. It was submitted that the Appellant is a principal party in the commission of offences of conspiracy to murder and murder, and also that the findings of the Court are not perverse having been based on credible evidence before the trial Court. He urged that this Court should affirm the finding of the trial Court. The Learned Counsel for the Respondent also submitted that the prosecution witnesses who are blood relations of the deceased are not tainted witnesses. 10

24 He relied on the case of:- OMOTOLA VS STATE (2009) 7 NWLR Part 1139 at 148 at 177 paragraphs C D. He finally urged that this issue be resolved in favour of the Respondent, dismiss the appeal and affirm the Judgment of the trial Court. In his reply brief of argument, the Learned Counsel for the Appellant reiterated his earlier submission in this appeal. He submitted that the Appeal Court has the power to evaluate evidence when it is shown that such evidence were not properly evaluated at the trial Court. He urged this Court to re-evaluate the evidence in this case. He relied on the cases of FATAI VS STATE (2013) NWLR Part 1361 at Page 1 particularly at Page 21 paragraphs B D; and - AKINBISADE VS STATE (2006) 17 NWLR Part 1007 Page 184 at 211 paragraph H. Concerning the issue of contradiction in prosecution witnesses, the Learned Counsel for the Appellant contended that where there are material contradictions in the evidence of prosecutions witness, that the Court is duty bound to discountenance the entire evidence and treat it as unreliable. This is because the Court cannot pick which to believe. The prosecution must either sink or sail with his evidence. 11

25 He relied on the case of:- AL-MUSTAPHA VS STATE (2013) 17 NWLR Part 1383 Page 350 particularly at Page 403 paragraph G. He finally urged that the appeal be allowed. RESOLUTION It is trite law that in criminal prosecutions, the required standard is that of proof beyond reasonable doubt. The burden on the prosecution in a criminal trial has been succinctly enshrined in Section 135(1) of the Evidence Act 2011 which provides as follows:- If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. Although it is trite that proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt. See the following cases:- - DIBIE VS STATE (2007) 3 SCNJ Page 160 at ; - JULIUS ABIRIFON VS THE STATE (2013) LPELR (SC);

26 12

27 - ADIO VS THE STATE (1986) 5 SC Page 194 at ; - ITU VS THE STATE (2016) 5 NWLR Part 1506 Page 443. The guilt of an accused person can be proved through any of the following methods:- (a) through confessional statement; (b) through circumstantial evidence; or (c) through the testimony of eyewitnesses. See the following cases:- - IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100; - OGBA VS STATE (1992) 2 NWLR Prt 222 Page 146; - EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666; - ITU VS THE STATE (2016) 5 NWLR Part 1506 Page 443; - IDOWU VS STATE (2000). 80 LRCN Page The Appellant and the other accused persons were arraigned before the lower Court on 28th day of March, 2012 on two counts charge of conspiracy to commit murder punishable under Section 324 of the Criminal Code Cap C21 Volume 1 Laws of Delta State of Nigeria 2006 and murder punishable under Section 319 (1) of the Criminal Code Cap C21 Laws of Delta State of Nigeria Conspiracy has been held in a number of decided cases to be an agreement by two or more persons to do a lawful act

28 by unlawful means. 13

29 The two or more persons must be found to have combined in order to ground a conviction. See the following cases:- - OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 40; - SULE VS STATE (2009) 17 NWLR Part 1169 Page 33; - YAKUBU VS THE STATE (2014) LPELR (SC); - GARBA VS C.O.P. (2007) 16 NWLR Part 1060 Page 378 at 400; - PATRICK NJOVENS VS THE STATE (1973) 5 SC Page 17; - KAYODE VS THE STATE (2016) LPELR (SC). The ingredients of the offence of conspiracy are:- - There must be an agreement between two or more persons to do an unlawful act; - They must agree to do a lawful act by illegal means. The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned. In this case, there is no direct evidence of conspiracy between the Appellant and the other accused persons to commit murder but I agree with the submission of Learned Counsel for the Respondent that the learned trial Judge inferred conspiracy from the proved facts of murder in this case. 14

30 In the case of murder, the ingredients of the offence of murder are:- (a) that death of the deceased occurred; (b) that the death of the deceased was caused by the accused or accused persons on trial; and (c) that it was the act or omission of the accused that caused the death of the deceased victim such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence. The ingredients mentioned above must co-exist. If any of them is missing, then, the offence of murder cannot be said to have been proved, hence, the prosecution cannot obtain conviction of murder against the accused person and the Court must exonerate him and acquit him of the offence of murder. The prosecution has the heavy task of proving its case or the aforementioned ingredients beyond reasonable doubt. That is the standard of proof short of which the prosecution shall fail. See the following cases:- - OGBA VS STATE (Supra) - NWAEZE VS STATE (1996) 3 NWLR Part 222 Page 164; - GIRA VS STATE (1996) 2 NWLR Part 443 Page

31 In this appeal under consideration, the Appellant was convicted of murder which is a capital offence. The conviction of murder carries a sentence of death without any option. Therefore, care must be taken by the trial Judge in ensuring that the evidence produced by the prosecution unquestionably point to the guilt of the accused person. In the instant appeal, there is evidence which the trial Court believed that the deceased Jonathan Akpome is dead. The PW6, a Police Officer, attached to Orerokpe Police Station testified that on 17/5/2011, the body of the deceased was brought to Orerokpe General Hospital where PW7 performed a post mortem examination on the body of the deceased. The learned trial Judge, on page 261 lines 1 7 of the record of appeal held thus:- I find, as a fact, that the body which PW6 took to PW7 and upon which autopsy was carried out was that of Jonathan Akpome, who was described in Exhibit H as Okolo Akpome alias one mama one bele. I therefore hold that the prosecution has proved beyond reasonable doubt that it was in respect of the body of Jonathan Akpome that PW6 filed a coroners form which said form was 16

32 served on PW7 upon which an autopsy was carried out and Exhibit J issued. On whether it was the act of the Appellant that led to the death of the deceased The PW1, PW2, PW3, PW4 and PW5 gave vivid account of the part played by the Appellant in the assault on the deceased with lethal weapons that led to the bodily injury which resulted in the deceased s death. There is also the evidence of PW7 corroborating the evidence of PW2 that the deceased was cut on the right arm with a cutlass by the Appellant. PW1 at page 191 line 7 8, testified thus:- The boys then attacked Jonathan. The boys, who attacked Jonathan, are Festus Egitie, the 3rd accused. PW2 testified on page 195 of the record lines thus:- At the scene I met Festus Egitie, Michael Iriri, Nasawarie Iriri, Josiah Omayerue and the other boys whom I could not remember their 17

33 names that day. I can identify the persons mentioned.. Festus Egitie is the 3rd accused, Michael Iriri is also known as Ediri. He is the 7th accused person, Nasawarie Iriri is also known as David Iriri, he is the 4th accused 5th accused is Alex whilst the 6th accused is Emman. Further at lines 32 33, PW2 testified that:- Festus Egitie now used cutlass to cut my brother Jonathan on his upper arm. As could be seen from the testimonies above, the Appellant was not just at the scene of crime, but an active participant in the crime of murder of Jonathan Akpome. I am of the view that the Appellant is a principal party in the commission of the offences of conspiracy to murder and murder. The learned trial Judge was therefore right when she inferred common intention on the part of the Appellant and his cohort to kill the deceased, Jonathan Akpome. See the following:- - Sections 7 and 8 of the Criminal Code Law Cap C21 Volume 1, Laws of Delta State of Nigeria; 18

34 - ALARAPE VS STATE (2010) 5 NWLR Part 705 at Page 79; - OYAKHIRE VS STATE (2006) 15 NWLR Part 1001 Page 157. The Learned Counsel for the Appellant challenged the power of the trial Court to evaluate evidence. I am of the view that since the finding of the trial Court as far as the Appellant is not perverse and having been based on credible evidence before the trial Court as shown earlier in this Judgment, therefore, it is trite that evaluation and ascription of probative value to such evidence are the primary function of the trial Court which saw, heard and assessed the witnesses while they testified before it. The Appellate Court will not interfere with such findings of fact nor will it substitute its own view of the facts to those of the trial Court. The findings of the trial Court on the Appellant is therefore correct. The Learned Counsel for the Appellant also contended that the evidence relied upon by the trial Court is replete of contradictions and inconsistencies, but I am of the view that it is not every inconsistency in the evidence of the prosecution witnesses that could be fatal to its case. It is only when such inconsistencies or contradictions are 19

35 substantial and fundamental to the main issue in question before the Court and thus create doubt in the mind of the trial Court that an accused is entitled to benefit therefrom. But it is not the case in the Appellant s case under consideration. See the following cases:- - AGBO VS STATE (2006) NWLR Part 977 Page 548; - GOLDEN DIBIE VS STATE (Supra); - OGBU VS THE STATE (2007) 2 SCNJ Page ; - BASIL AKPA VS STATE (2008) 14 NWLR Part 106 Page 72; - ABOGEDE VS STATE (1996) Volume 37 LRCN Page 674 at 684 paragraphs A B. The Learned Counsel for the Appellant has also contended that PW1 PW5 are tainted witnesses because they are blood relations and members of the group led by the deceased Jonathan Akpome. I am of the view that from the evidence on record in this case, the Respondent s witnesses are not tainted witnesses. There is nothing on record to show that the Respondent s witnesses had any interest to serve other than giving a vivid and accurate account of how the deceased, Jonathan Akpome was murdered by the Appellant and his cohorts. See the following cases:- - OMOTOLA VS STATE (Supra); - OLALEKAN VS STATE (2002) FWLR Part 91 Page 1605; - ITU VS STATE (2016) 5 NWLR Part 1506 Page 443.

36 20

37 In conclusion, I am of the view that there is evidence on record upon which the trial Judge held that the prosecution proved the case of conspiracy to murder and murder against the Appellant. Furthermore, the Appellant has failed to show that the learned trial Judge s findings were perverse or that it was not borne out of evidence on record. This issue is therefore resolved in favour of the Respondent and against the Appellant. Consequent upon the foregoing, I am of the view that this appeal lacks merit and it is hereby dismissed. The Judgment of the trial Court in Charge No. HOR/3C/2012 Between THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITIE (APPELLANT) (4) DAVID IRIRI (5) ALEX AKPALLALA (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI, delivered on 18/12/2013, as far as FESTUS EGITE (APPELLANT) is concerned is hereby affirmed. Appeal dismissed. PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading before now the judgment of my 21

38 learned brother J.O. BADA, JCA just delivered. My Lord dwelt extensively with lone issue formulated by both parties and I am entirely in support of the reasoning and conclusions reached thereat in this appeal. There is gain saying that the prosecution did not prove the case of conspiracy to murder and murder against the Appellant. Its therefore connote that the Appellant has failed to prove that the learned trial Judges findings were not borne out of evidence on record. Having resolved this issue in favour of the Respondent as against the Appellant, it is my humble view that this appeal lacks merit and it is hereby dismissed. Consequently, the judgment of the lower court in Charge No. HORI3C/2012 Between: THE STATE VS. (1) JOHN JAFUWA (2) JOSIAH OMAYERVE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (i.e. Appellant) (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI, delivered on the 18th day of December, 2013 is hereby affirmed as far as FESTUS EGITE (the Appellant) is concerned. I too dismiss the appeal. 22

39 MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have been privileged before today of reading the judgment of my learned brother, JIMI OLUKAYODE BADA, JCA. Which has just been delivered. I agree entirely with the reasoning and the conclusion that the appeal lacks merit and ought therefore be dismissed. I also dismiss the appeal and affirm the judgment of trial Court in charge No. HOR/3C/2012 delivered on 18th day of December,

40 Appearances: CHIEF T.J. OKPOKO SAN with him, I.E. OSIOBE ESQ and N.E. DOZIE, ESQ. For Appellant(s) MR. PETER MRAKPOR Attorney-General and Commissioner for Justice, Delta State with him, O.F. ENENMO, ESQ. Director, Department of Appeals, Ministry of Justice, Delta State and C.O. AGBAGWU, ESQ. Assistant Director, Department of Appeals, Ministry of Justice, Delta State For Respondent(s)