(2016) LPELR-40454(CA)

Transcription

1 OKASI v. STATE CITATION: RAPHAEL CHIKWE AGBO PETER OLABISI IGE FREDERICK OZIAKPONO OHO CHARLES OKASI In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON MONDAY, 21ST MARCH, 2016 Suit No: CA/OW/383C(A)/2013 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) THE STATE - Respondent(s) RATIO DECIDENDI

2 1. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances under which the appellate Court will not interfere with the findings of fact of the lower Court "It is trite that an Appellate Court will not lightly interfere or disturb the findings and decision of a Lower Court who had the advantage of seeing the witnesses who testified before it and observing their demeanours. But this Court will interfere with such findings and decision of a Lower Court where it is patently clear that the finding or the decision was not supported by the evidence before the trial Court. See IRENE NGUME (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E-H per M. D. MUHAMMAD, JSC who held thus: "Firstly, the decision on the voluntaries or otherwise of Appellant???s confessional statement, exhibit???7??? unarguable requires the trial Court???s assessment of the credibility of the witnesses who testified on the matter. The principle has not changed from what the Lower Court in its foregoing finding holds it to be. It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the Court of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at. It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where, however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA VS. NIPOST (2003) NWLR (PT. 833) 308, ; ADEYE VS. ADESANYA (2001) 6 NWLR (PT AND IRAGUNIMA VS. R.S.H.P.D.A (2003) 12 NWLR (PT. R 834) 427."Per IGE, J.C.A. (Pp , Paras. C-C) - read in context 2. CONSTITUTIONAL LAW - PRESUMPTION OF INNOCENCE: Presumption of innocence in a criminal trial "It is the command of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered vide Section 36(5) thereof that every persons who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty."per IGE, J.C.A. (P. 34, Paras. C-D) - read in context

3 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER : Ingredients of the offence of murder "Now, when can it be said that an Accused is guilty of an offence of murder? There are plethora of authorities. Three main or principal ingredients or element of offence of murder must be proved or established by the prosecution against the Accused. The three ingredients must be cumulatively established cases. See SOLOMON ADEKUNLE VS THE STATE (2006) 14 NWLR (PART 1000) 717 at 736 H TO 737 A where Mohammed J.S.C said: - "From a long line of the decisions of the Court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove: - (a) That the deceased had died, (b) That the death of the deceased was caused by the accused, (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences." Similar position was taken by Supreme Court in respect of charge under Section 221 of the Penal Code where Peter Odili, JSC. In the case of EMMANUEL v.ochibra (2011) 17 NWLR (part 1277) 663 At 684 had this to say: - "The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under Section 221 of the Penal Code under which the appellant as accused was convicted and sentenced. The conditions to be met are thus: - (a) That the deceased had died; (b) That the death of the deceased was caused by the accused; and (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence???? On page 688 MUHAMMAD, JSC said: - "In the establishment of a Criminal offence, with which an accused person stands trial before a trial Court, especially a capital offence such as culpable homicide, for which the appellant stood trial at the trial Court, the law requires that, that offence must be proved beyond reasonable doubt by the prosecution. (Section 138 of the Evidence Act). The rudiments factors, ingredients or elements which the law places on the shoulders of the prosecution to prove are as follows:- 1. That death of a human being had actually taken place, 2. Such death was caused by the person accused, 3. The act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as: (a) The accused knew or had reason to know that death would be the probable and not only likely consequence of his act or; (b) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.???per IGE, J.C.A. (Pp , Paras. C-E) - read in context

4 4. CRIMINAL LAW AND PROCEDURE - ELEMENT OF AN OFFENCE: Whether the elements of actus reus and mens rea must be present before an accused can be convicted for an offence "In effect law needs no restatement that before an accused can be convicted of any offence, the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged. In the case of SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PART 257) 36 AT 50 G, KUTUGI J.S.C. (later CHIEF JUSTICE OF NIGERIA rtd) said:???in criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.??? My Lord, OLATAWURA J.S.C said similar thing in the case of M. O. AMADI & ORS VS. THE STATE (1993) 8 NWLR (PART 314) 644 at 663 H to 664 A THUS:-???It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this, before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charges.??? The Court will not begin to inquire whether an accused is guilty of crime until it has been established that a crime has been committed. See the State Vs. Omada Odobor (1975) 9-11 SC 69 at 78."Per IGE, J.C.A. (Pp , Paras. E-A) - read in context 5. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish the guilt of an accused person "Sentiments have no place at the altar of justice. The fact that an accused was untruthful in the witness box is not evidence of guilt. The fact that an accused is called or addressed with funny alias is no evidence of guilt either until the prosecution is able to prove that the Accused is guilty as charged."per IGE, J.C.A. (P. 31, Paras. A-B) - read in context

5 6. CRIMINAL LAW AND PROCEDURE - ELEMENT OF AN OFFENCE: Whether the elements of actus reus and mens rea must be present before an accused can be convicted for an offence "The law is also settled that before an accused can be convicted of any offence the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredient of offence charged. In the case of SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTIGI JSC (LATER CHIEF JUSTICE OF NIGERIA rtd.) said:???in criminal proceedings the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.??? My Lord, OLATAWURA JSC said similar thing in the case of M. O. AMADI & ORS VS. THE STATE (1993) 8 NWLR (PT. 314) 644 AT 663 H to 644 A THUS:???It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charged.???per IGE, J.C.A. (Pp , Paras. B-A) - read in context

6 7. EVIDENCE - CONFESSIONAL STATEMENT: Definition of confession; when a confession will be used by the Court "A confessional statement by an Accused is therefore a direct acknowledgement of commission of the offence for which he was arraigned and admission of all the elements or ingredients of the offence charged. A free and voluntary confession is the best evidence eagerly sought after and always by the prosecution to rely upon to establish the guilt of an Accused person. See NNAMDI OSUAGWU VS THE STATE (2013) 5 NWLR (PART 1347) 360 at 387 B-E where RHODES-VIVOUR JSC, said: "Now, what was the prosecution'??s case?? the confessional statements of the Appellant, Exhibits E and F. Section 27(1) of the Evidence Act states that: - A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. See IGBINOVIS VS. STATE (1981)2 SC P.A, YUSUF VS. THE STATE (1976) 6 SC P A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgement of guilt. A confession must either admit the elements of the offence of all facts which constitutes the offence. Once a Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an Appellate Court. See R. VS SYKES (1913) 8 C.A.R. 233 R. V. AJAYI ONIKORO 7 WACA P. 146." See also THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 at 276 G-S per ARIWOOLA JSC who said: - "If the Court is satisfied that the statement was made voluntarily, then it will admit same in evidence. See Samuel Ojegele Vs. The State (1988) NWLR (Pt. 71) 414. In other words, it is already settled that where an extrajudicial confession has been proved to have been made voluntarily and it is found positive and unequivocal amounting to an admission of guilt, such confession will suffice to ground a finding of guilt, regardless of the fact that the maker resiles there from or retracted it altogether at the trial. See: Egboghonome Vs. The State (1993) 7 NWLR (Pt. 306) 383; Osetola Per IGE, J.C.A. (Pp , Paras. B-A) - read in context

7 8. EVIDENCE - INCONSISTENCY RULE: How the inconsistency rule operates "The inconsistency Rule is only applicable to a witness who had on previous occasion made a written statement which is now contrary to the oral evidence of that witness in the witness box. In such a situation, a cross examiner could ask for the production of the witness' statement to confront the witness with it in order to show that his oral testimony before the Court is unreliable. It has nothing to do with an accused and Appellant'??s oral testimony in Court. A confessional statement of an accused remains potent and effective against him even if he retracts it in his evidence at the trial once it is proved that the statement was voluntarily made. See CHUKWUKA OGUDO VS THE STATE (2011) (PT 1) SCM 209 at 222 G-I TO 223 A per RHODES-VIVOUR, JSC who said:- "It is that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on what a Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency, see Onubogwu Vs State (1974) 9 SC p. 1. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the Court can act on/and the evidence given at the trial is taken by the Court as unreliable. See Egboghonome Vs State NWLR pt. 306 P. 383 The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person'??s extrajudicial statement is contrary to his testimony in Court. A Court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial judge should evaluate the confession and testimony of accused and all the evidence available."per IGE, J.C.A. (Pp , Paras. F-E) - read in context

8 9. EVIDENCE - CONFESSIONAL STATEMENT: Whether a statement made to the police during investigation would amount to an admission; and can same be admissible against a co-accused person "From the point of view of settled principles in criminal law, it is the maker of a voluntary confessional statement that is bound and caught in its web. A co-accused cannot directly or indirectly be made liable or implicated vide a confession not made by him unless that other co-accused implicated or incriminated in the confessional statement is confronted with the alleged confessional statement and he (co-accused) agrees with the contents or portion of the confessional statement implicating or roping him in the commission of the offence for which the maker of the confessional statement and the co-accused are charged. In the absence of that, it is the maker that will face the music all alone. See THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 at 271 D-G per OKORO JSC who said: "One other issue which afflicted this case relates to the decision of the learned trial judge that the evidence of PW5 and the co-accused persons corroborated the alleged confessional statement of the respondent. Happily, the Lower Court shot down the said decision. The reason is not far-fetched. First, where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person'??s confession is only evidence against him and not against co-accused persons and it is a misdirection which may lead to the quashing of the conviction. However, a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See Ozake V. State (1990) LPELR-2888 (SC), (1990) 1 NWLR (pt. 124) 92, Evbuomwan V. COP (1961) WNLR 257. In the instant case, the use of the statements of co-accused persons against the respondent without him adopting them as his, was unlawful and has a vitiating effect on his conviction by that Court." And on page 274 F-I, FABIYI, JSC also said: "It goes without saying that the trial Court was wrong when it relied on the legally inadmissible statement of the respondent to convict him. The Court below rightly interfered with same. The decision in the case of Sele v. The State (1993) 1 NWLR (Pt. 267) 282 cited by the respondent'??s counsel is in point. Apart from the above, the trial Court placed reliance on the statements of co-accused persons as corroboration to convict the respondent. That was wrong. A statement made to the Police by an accused person implicating a co-accused is not admissible against that accused. Where the prosecution intends to use the statement against a co-accused, as herein, then the prosecution is bound to make a copy of the incriminating statement available to the accused for him to reject or adopt same. There is nothing in the record that same was carried out by the prosecution. The decision in the case of Mumuni vs. The State (1975) 6 SC 79; Chukwueze vs. The State (1991) 7 NWLR (pt. 205) 604 and Yongo vs. Comm. of Police (1992) 8 NWLR (Pt 257) 36 are in point here. Put briefly, the reliance placed on the evidence gathered from the statements of coaccused to nail the respondent by the trial Court was improper as found by the Court below which was on a firm stand. I endorse the stance taken by the Court below without any shred of doubt."per IGE, J.C.A. (Pp , Paras. D-B) - read in context

9 10. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases "The onerous onus of establishing that the Appellant here is guilty of murder of the victim rests squarely on the shoulders of the prosecution. For avoidance of doubt, the standard of proof is prove beyond reasonable doubt as enacted in Section 135(1) of the Evidence Act 2011."Per IGE, J.C.A. (P. 34, Paras. D-E) - read in context 11. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases "In the realm of criminal law, proof beyond reasonable doubt cannot be compromised. See THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 AT 267 H TO 268 A %u2013 B PER OKORO JSC who said: %u201cit is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo V. Commissioner of Police (1992) LPELR %u (SC), (1992) 4 SCNJ 113, Ogundujan V. State (1991) LPELR %u (SC), (1991) 3 NWLR (PT 181) 519, Akibge V. IOG (1959) 4 FSC 203, Onubogu V. The State (1974) 9SC 1 at 20, Babuga V. State (1996) LPELR %u (SC), (1996) 7 NWLR (pt 460) 297%u201DPer IGE, J.C.A. (Pp , Paras. D-C) - read in context 12. JUDGMENT AND ORDER - PERVERSE DECISION: What is a perverse decision The evidence analysed concerning the Appellant on the printed record by the Learned trial judge cannot by any stretch of imagination amount to participation by the Appellant in the offence of murder charged. The finding is to say the least perverse. See CHIEF CYPRIAN CHUKWU VS INEC Per IGE, J.C.A. (Pp , Paras. E-B) - read in context

10 PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment): The Appellant and some persons were charged and arraigned before the Imo State High Court, Owerri Division on 24th day of November, 2010 for the murder of one CHIEF (SIR) AUGUSTINE NDUKWU on 4th day of November, 2010 at his country home UMUDAFA AWO MBIERI. The said charge reads as follows: "THE STATE VS 1. UCHENNA NDUKWU 2. CHIMA OKEBATA 3. JOHN EMESIOBI 4. STANLEY NDUKWU 5. EKENE NDUKWU 6. REUBEN OKASI 7. CHINYERE ADA NDUKWU 8. CHARLES OKASI 9. VINCENT EMESIOBI DATED THIS... DAY OF..., 2011 AT THE SESSION HOLDEN AT OWERRI on the... day of , the Honourable Court is informed by the Attorney- General of Imo State, on behalf of the State that UCHENNA NDUKWU, CHIMA OKEBATA, JOHN EMESIOBI, STANLEY NDUKWU, EKENE NDUKWU, REUBEN OKASI, CHINYERE ADA NDUKWU, CHARLES OKASI and VINCENT EMESIOBI are charged with the 1

11 following offence. STATEMENT OF OFFENCE MURDER: Contrary to Section 319(1) of the Criminal Code, Cap. 30 Vol. II, Laws of Eastern Nigeria, 1963, applicable to Imo State. PARTICULARS OF OFFENCE UCHENNA NDUKWU, CHIMA OKEBATA, JOHN EMESIOBI, STANLEY NDUKWU, EKENE NDUKWU, REUBEN OKASI, CHINYERE DADA NDUKWU, CHARLES OKASI and VINCENT EMESIOBI on the 4th day of November, 2010 at Umudafa Awo-Mbieri in the Owerri Judicial Division did murdered one Chief (Sir) Augustine Ndukwu.(Sic) C. C. DIMKPA (MRS) DIRECTOR OF PUBLIC PROSECUTIONS. The plea of the accused persons including the Appellant was taken on 31st day of October, 2011 but shortly before the plea was taken, the Learned Director of Public Prosecutions applied to withdraw the information against the 2nd and 4th Defendants. The application was not opposed by the Defence Counsel consequent upon which the names of the 2nd and 4th Defendants were struck out. The remaining seven accused persons including the Appellant as 6th accused person each pleaded to the one count charge. The 1st accused UCHENNA NDUKWU PLEADED GUILTY to the murder charge but in line with the law 2

12 relating to plea in capital offences, a plea of NOT GUILTY was entered for the 1ST ACCUSED. All the other accused persons including the Appellant pleaded NOT GUILTY to the murder charge. The prosecution called six witnesses and tendered Exhibits. The Appellants testified in his own defence. At the end of the accused defence and submissions by their Learned Counsel, the learned trial Judge delivered a considered judgment on the 18th day of February, The Learned trial Judge stated what the Lower Court believed to be evidence against the Appellant as 6th accused at the Court below thus: "In the case of 6th accused -Charles Okasi, the Prosecution's witness PWs said he was arrested after the receipt of a signal. They maintain that the alias "Ayakata" refers to him mentioned by 1st accused. 1st accused a local boy with him, knows him as "Ayakata". The denial of 6th accused that he is not Ayakata and has not heard of the name before does not provide him with any concrete defence. I am not unaware that he was mentioned by a coaccused (1st accused) but I am convinced and I believe that he was the person 3

13 4 referred to even from his behavour in Court. He will deny everything. Once he said to the police he did not know woman gardener and here in Court he admitted she was a woman married in their home. I do not see him as a truthful witness and disbelieve him. The defence tried to make a case that signal received by the police was not tendered as Exhibit and that its omission is fatal to the case of the prosecution. With due respect, I disagree with this and stick to what I had earlier said in the case of 4th accused Reuben Okasi. I equally find him guilty as charged. See page 297 of the record. The trial Judge concluded as follows: From the above discourse it is now crystal clear that the 1st, 3rd, 4th, 5th and 6th accused persons have been found guilty as charged. The story of 1st accused that he did the murder single handedly is a story better reserved to the marinees. The Honourable Court is not a dummy. The 1st accused is a Modern Brutus in the Literature Book of Julius Ceaser by William Shakespeare Et Lu Brute. The deceased was his benefactor, uncle, everything but his God yet he had the heart to stab him.

14 Mark Anthony in Julius Ceaser would describe it as the UNKINDEST CUT OF THEM ALL. He does not belong to the civilized world best sent to the World behind. ALLOCUTUS: 1st, 3rd and 5th nothing from them. 4th and 6th nothing from them. COURT: It is the law of our land that anyone who unlawfully takes the life of another if and when prosecuted before a Court of Competent Jurisdiction and found guilty pays with his own life. In the circumstances, my hands are tied. The sentence of this Court upon you all 1st, 3rd, 5th, 4th and 6th accused is that each and everyone of you be hanged by the neck until you be dead. May God have mercy on you? The day, where and time of your hanging will be determined by the Executive Governor of this State. In the mean, each of you is ordered to be remanded at the Maximum Security Prisons, Port Harcourt, Rivers State awaiting the action of the said Executive Governor of Imo State. (SGD) HON. JUSTICE NGOZI OPARA JUDGE, 18/2/2013 The Appellant being dissatisfied with the verdict of the Court below consequently appealed to this Court vide his Notice of Appeal 5

15 dated the 12th day of March, 2013 on the same date. The said Notice of appeal contains four (4) grounds of appeal which are as follows: I CHARLES OKASI, having been convicted of the offence of murder and now a prisoner at the Federal Prisons Owerri, do hereby give notice of appeal against the decision of the High Court of Imo State of Nigeria Holden at Owerri in Charge NO: HOW/51c/2011 made on Monday, the 18th day of February, 2013 at High Court 3, Owerri by the Hon Justice Ngozi Opara, judge on the following grounds. GROUNDS 1 ERROR IN LAW The learned trial judge erred in law when he held that the prosecution has proved its charge of murder against the appellant. PARTICULARS OF ERROR 1. The prosecution called a total of six witnesses, none of whom gave any legally admissible evidence against the appellant. 2. The appellant denied the charge of murder. 3. The ingredients for the offence of murder were not established against the appellant. 4. There was no credible evidence pinning the appellant down to the scene of the crime. 5. The learned trial judge did not evaluate the evidence before him which 6

16 on a calm view will obviously raise doubt which ought to be resolved in favor of the appellant. 6. The appellant was convicted on the basis of a mistaken identity. GROUND 2 ERROR IN LAW The learned trial judge erred in law when he placed heavy reliance on Exhibit 5 to convict the appellant, when the said Exhibit 5 is a purported confessional Statement of one Uchenna Ndukwu (a Co-accused). PARTICULARS OF ERROR 1. The appellant was charged for the offence of murder alongside seven other accused persons. 2. Exhibit 5 is a purported confessional statement of one Uchenna Ndukwu, (a co-accused) made to the police. 3. The said Uchenna Ndukwu (a Co-accused) also made to the police Exhibit 6 putting Exhibit 5 in issue, and repudiating same. 4. At the trial, the said Uchenna Ndukwu (co-accused) maintained all through that he committed the murder alone, and explained in details how he did same to the exclusions of the appellant. 5. The evidence of the said Uchenna Ndukwu at the trial was in line with Exhibit 6 and never in support of Exhibit The Appellant all through denied both charge and never 7

17 admitted/adopted Exhibit 5 (the said confessional statement of a co-accused). 7. The Court below proceeded to convict the appellant on the basis of the said exhibit 5, a retracted confessional statement of a Co-accused, which was never admitted or adopted by the appellant. GROUND 3 ERROR IN LAW The learned trial judge erred in law when he relied on circumstantial evidence to convict the appellant. PARTICULARS OF ERRORS 1. There was no eye witness evidence linking the appellant to the offence charged. 2. There was no cogent, direct or positive evidence linking the accused/appellant to the charge. 3. The Court below nonetheless proceeded to convict the appellant on the basis of circumstantial evidence which was never cogent, direct, and positively pointing on the appellant. GROUND 4: ERROR IN LAW The judgment is unreasonable, unwarranted and cannot be supported having regard to evidence before the Honourable Court. The Appellant and the Respondent filed their respective Brief of Argument in this appeal. The Appellant s Brief of Argument dated 29th day of November, 2013, was filed on 5th 8

18 day of December, 2013 while Respondent s Brief of Argument dated 27th day of November 2014 was filed on the 28th day of November, 2014 but deemed properly filed on 27th day of April, The Learned Counsel to the Appellant Chief F. O. Onyebueke espoused the background facts to this appeal and distilled two issues as arising for determination of the appeal viz: (a) WHETHER THE TRIAL JUDGE WAS RIGHT TO RELY ON EXHIBIT 5 TO CONVICT THE APPELLANT AND IGNORED EXHIBIT C ALSO MADE BY THE 1ST ACCUSED (GROUNDS 1 AND 3). (b) WHETHER THE PROSECUTION PROVED THEIR CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT. The Learned Counsel to the Respondent MRS. K. A LEWEANYA, Assistant Chief State Counsel in Imo State Ministry of Justice also stated the facts culminating into this appeal and nominated two issues for the resolution of the appeal as follows: 1. WHETHER THE TRIAL JUDGE RELIED ON EXHIBIT 5 TO CONVICT THE APPELALNT (GROUND 2). 2. WHETHER THE PROSECUTION PROVED ITS CASE AGAINST THE APPELALNT BEYOND REASONABLE DOUBT. (GROUNDS 3 AND 4). I believe that the issues as distilled or raised by the Appellant can be 9

19 utilized in the determination of this appeal. I will treat them in sequence. ISSUE A WHETHER THE TRIAL JUDGE WAS RIGHT TO RELY ON EXHIBIT 5 TO CONVICT THE APPELALNT AND IGNORED EXHIBIT "C" ALSO MADE BY THE 1ST ACCUSED. (GROUNDS 1 & 3) The Learned Counsel to the Appellant Chief F. O. Onyebueke referred to the findings of the trial Judge concerning the Appellant who was 6th Appellant at the Court below on page 297 of the record and stated that it was obvious that the Learned Trial Judge relied on Exhibit 5 which is the statement of the 1st Accused person where he implicated the 6th Accused now Appellant, that is, a statement of a co-accused person against another accused person. That it is on record that the 6th Accused person Appellant never admitted the commission of the crime and no person testified that he was involved. That the 1st Accused also on record retracted the confessional statement as in Exhibit 5 by another statement in Exhibit "C" where he exonerated all the other accused persons. That the Learned Trial Judge did not in any way consider Exhibit "C" but solely relied on Exhibit 5. That the 10

20 Trial Judge erred in failing to make use of evidence favourable to the Appellant as according to the Learned Counsel the inconsistency rule will apply and that it means the evidence given by the 1st Accused in Court should be treated as unreliable and exhibit 5 regarded as evidence upon which the trial Judge cannot act or relied upon. He relied on the cases of 1. SULE VS THE STATE (2009) 17 NWLR (PT 1169) 101 AND 2. AGBO V. STATE (2006) 6 NWLR (PART 977) 545 AT 571 H â F (sic). That in respect of 2nd and 7th Accused discharged and acquitted by the trial Judge, the trial Judge did not rely on Exhibit 5 though they were both referred to in 1st Accused Statement Exhibit 5 as the brain behind the murder of the victim. He relied on page 294 of the record. That it is very curious that the person who was clearly mentioned in Exhibit 5 to have hired the 4th and 6th Accused persons was proved to be innocent only for the same Judge to turn round to convict a person purportedly hired when there is no evidence outside the said 1st Accused statement incriminating the Appellant. He cited and relied on the case of BASSEY V. STATE (2012) 12 NWLR (PART 1314) 11

21 209 at 227 C-D. That there was no evidence outside the confessional statement of 1st Accused. That it is unfortunate that the only reason given by the trial Judge was that the 6th Accused (Appellant) admitted that he is known as Unyi. That the same way in which 1st Accused mentioned 6th Accused so he mentioned even PW2 called by the Prosecution and PW2 not tried nor was he convicted. That the trial Court also failed to evaluate the confessional statement Exhibit 5 before relying on it to convict the Appellant. That the trial Judge was wrong in failing to consider that evidential value of the statement of 1st Accused. He relied on the case of NWOCHA V. STATE (2012) 9 NWLR (PART 1306) 571 at 587 D. The Learned Counsel also stated that the 1st Accused having confessed that he alone committed the offence, it is only the 1st Accused that could be convicted on the statement. He relied on the case of MBANG V. STATE (2009) 18 NWLR (PT 1172) 140 at 159 E â F. That there was no evidence of common intention to kill between the Appellant and the 1st Accused. That Exhibit 5 is not sufficient to prove unlawful intention, particularly 12

22 when 1st Accused retracted it. He urged the Court to resolve the issue in favour of Appellant. In her reply to the above submissions, the Learned Assistant Chief State Counsel MRS K. A. LEWEANYA contended that the Learned trial Judge did not rely on Exhibit 5 to reach final conclusion but on all the evidence led including the defence which she said really helped the trial judge to decide the general merit of the case. That the prosecutions case was that it was the 2nd Accused person, one JOHN EMESIOBI who procured 1st, 4th and 6th Accused (Appellant) and two other persons at large to kill the deceased Chief Augustine Ndukwu. That the prosecution proved that together with the 1st Accused at the Lower Court, they murdered the deceased and his gardener on She relied on the evidence of PW3, PW5, Exhibit 5, Exhibit 6 and what she described as other pieces of evidence led in the case. That PW3, IPO gave uncontradicted evidence that as the 1st Accused was making statement Exhibit 2, he noticed a fresh wound on his hand and that upon interrogation, 1st Accused said it was AYAKATA and Appellant of Obinubi Awo Mbieri that gave him 13

23 the wound with a knife when he wanted to collect his debt from Appellant. That as a result PW3 got signal from Owerri that they should arrest Unyi and Ayakata. That PW3 said Appellant introduced himself as Charles Okasi alias AYAKATA that Appellant was informed of why he was arrested but he did not say anything. He relied on page 108 of the record. That the 1st Accused stated in Exhibit 5 that he and the said AYAKATA and UNYI from Obinubi Awo Mbieri were procured by 2nd Accused to murder the deceased Chief Augustine Ndukwu and his gardener Mrs Susanna Esogwin and that in Exhibit 16, the 1st Accused incriminated Appellant. That the Appellant in the witness box denied knowing 1st Accused and changed alias to Charles Chinaka. That the denial by Appellant that he was no longer Charles Okasi alias Ayakata is an afterthought. On the contention of Appellant that the trial judge did not consider the retracted statement or confession in Exhibit 5, the Learned Counsel to the Respondent stated that the trial judge did not rely on Exhibit 5 in reaching his decision. The Learned Counsel to the Respondent relied on the case of EGBOGHONOME V. STATE (2001) 2 ACLR to 14

24 submit that voluntary statement of Accused forms part of prosecution case even where Accused resiled from it. That once admitted the Court can act on it. That in this case, the statement was tendered without objection. That Exhibits 5, C, and 16 AND THE Appellants statement are all part of prosecution's case. He relied on DURUGO VS. STATE (1992) 7 NWLR (part 255) 535 and EJIRIMA VS. STATE (1991) 6 NWLR (Pt 200) 637. That a retraction is often made after the Appellant had reconsidered his position and framed plausible answers. She relied on the case of ACHABUA VS. THE STATE (1976) 12 SC 63. On evidence of Co-accused against themselves, the Learned Assistant Chief State Counsel relied on Section 29(4) of the Evidence Act but submitted that the trial judge never stated he was relying on the evidence of an accused to take his decision. That the trial judge's primary duty was to evaluate and ascribe probative value to the evidence placed before him being the person who had opportunity of observing and seeing the witnesses while they testified in Court relying on AHMED VS STATE (2001) 2 ACLR 138. On the issue that the PW2 was also 15

25 implicated by 1st Accused, the Learned Counsel said that the 1st Accused did not mention the PW2 at earliest opportunity. That 1st Accused only started to mention PW2 during the trial. On the release of 2nd and 7th accused persons, the Learned Counsel to the Respondent contended that the trial judge gave reasons for their release as according to her, the trial judge relied on defence set up by 2nd and 7th Accused to release them. That Appellant's denial did not avail him. She urged this Court to resolve the issue one (A) against Appellant. It is trite that an Appellate Court will not lightly interfere or disturb the findings and decision of a Lower Court who had the advantage of seeing the witnesses who testified before it and observing their demeanours. But this Court will interfere with such findings and decision of a Lower Court where it is patently clear that the finding or the decision was not supported by the evidence before the trial Court. See IRENE NGUME (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E â H per M. D. MUHAMMAD, JSC who held thus: "Firstly, the decision 16

26 on the voluntaries or otherwise of Appellant s confessional statement, exhibit 7 unarguable requires the trial Court s assessment of the credibility of the witnesses who testified on the matter. The principle has not changed from what the Lower Court in its foregoing finding holds it to be. It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the Court of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at. It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court 17

27 concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where, however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA VS. NIPOST (2003) NWLR (PT. 833) 308, 343 â 344; ADEYE VS. ADESANYA (2001) 6 NWLR (PT AND IRAGUNIMA VS. R.S.H.P.D.A (2003) 12 NWLR (PT. R 834) 427." Now, when can it be said that an Accused is guilty of an offence of murder? There are plethora of authorities. Three main or principal ingredients or element of offence of murder must be proved or established by the prosecution against the Accused. The three ingredients must be cumulatively established cases. See SOLOMON ADEKUNLE VS THE STATE (2006) 14 NWLR (PART 1000) 717 at 736 H TO 737 A where Mohammed J.S.C said: - "From a long line of the decisions of the Court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove: - (a) That the deceased had died, (b) That the death 18

28 of the deceased was caused by the accused, (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences." Similar position was taken by Supreme Court in respect of charge under Section 221 of the Penal Code where Peter Odili, JSC. In the case of EMMANUEL v.ochibra (2011) 17 NWLR (part 1277) 663 At 684 had this to say: - "The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under Section 221 of the Penal Code under which the appellant as accused was convicted and sentenced. The conditions to be met are thus: - (a) That the deceased had died; (b) That the death of the deceased was caused by the accused; and (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence On page 688 MUHAMMAD, JSC said: - "In the establishment of a Criminal offence, with which an accused person stands trial before a trial Court, 19

29 especially a capital offence such as culpable homicide, for which the appellant stood trial at the trial Court, the law requires that, that offence must be proved beyond reasonable doubt by the prosecution. (Section 138 of the Evidence Act). The rudiments factors, ingredients or elements which the law places on the shoulders of the prosecution to prove are as follows:- 1. That death of a human being had actually taken place, 2. Such death was caused by the person accused, 3. The act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as: (a) The accused knew or had reason to know that death would be the probable and not only likely consequence of his act or; (b) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause. In effect law needs no restatement that before an accused can be convicted of any offence, the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged. 20

30 In the case of SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PART 257) 36 AT 50 G, KUTUGI J.S.C. (later CHIEF JUSTICE OF NIGERIA rtd) said: In criminal proceedings, the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. My Lord, OLATAWURA J.S.C said similar thing in the case of M. O. AMADI & ORS VS. THE STATE (1993) 8 NWLR (PART 314) 644 at 663 H to 664 A THUS:- It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this, before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charges. The Court will not begin to inquire whether an accused is guilty of crime until it has been established that a crime has been committed. See the State Vs. 21

31 Omada Odobor (1975) 9-11 SC 69 at 78. The major contention of the Appellant is that the Learned trial judge relied on Exhibits 5 and "C" Exhibits which are confessional statements made by the 1st Accused to convict the Appellant when there is no direct evidence or other evidence on record linking the Appellant to crime of murder for which he was charged along with other Accused persons. That the confessions contained in the said statements are only against the first Accused and that having denied some of the so called confessions that is, by the Accused who made the statement who retracted some of the statements and even in the witness box, the Appellant then contended that since there was denial of the statements by 1st Accused, the inconsistency rule will apply thus meaning that Exhibits 5 wherein 1st Accused referred to Appellant as culprit became unreliable and so the trial Court was wrong in relying on Exhibits 5 and "C" to convict the Appellant. I must state at once that the Appellant Learned Counsel missed the point with considerable respect to him concerning inconsistency Rule. The inconsistency Rule is only 22

32 applicable to a witness who had on previous occasion made a written statement which is now contrary to the oral evidence of that witness in the witness box. In such a situation, a cross examiner could ask for the production of the witness' statement to confront the witness with it in order to show that his oral testimony before the Court is unreliable. It has nothing to do with an accused and Appellant's oral testimony in Court. A confessional statement of an accused remains potent and effective against him even if he retracts it in his evidence at the trial once it is proved that the statement was voluntarily made. See CHUKWUKA OGUDO VS THE STATE (2011) (PT 1) SCM 209 at 222 G- I TO 223 A per RHODES-VIVOUR, JSC who said:- "It is that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on what a Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that 23

33 the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency, see Onubogwu Vs State (1974) 9 SC p. 1. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the Court can act on/and the evidence given at the trial is taken by the Court as unreliable. See Egboghonome Vs State NWLR pt. 306 P. 383 The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person's extrajudicial statement is contrary to his testimony in Court. A Court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial judge should evaluate the confession and testimony of accused and all the evidence available." The inconsistency Rule has no application in respect of the Appellant's case. I am of the firm view that the real issue in controversy is whether any of confessional statements made by the 1st 24

34 Accused was binding on the Appellant or any other Accused persons in the trial. I believe however I should say one or two things about the meaning and connotation of a confessional statement and its implication in criminal trials. It is here relevant to refer to Sections 28 and 29 of the Evidence Act A confessional statement by an Accused is therefore a direct acknowledgement of commission of the offence for which he was arraigned and admission of all the elements or ingredients of the offence charged. A free and voluntary confession is the best evidence eagerly sought after and always by the prosecution to rely upon to establish the guilt of an Accused person. See NNAMDI OSUAGWU VS THE STATE (2013) 5 NWLR (PART 1347) 360 at 387 B-E where RHODES-VIVOUR JSC, said: "Now, what was the prosecution's case the confessional statements of the Appellant, Exhibits E and F. Section 27(1) of the Evidence Act states that: - A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. See IGBINOVIS VS. STATE (1981)2 SC P.A, YUSUF 25

35 VS. THE STATE (1976) 6 SC P A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgement of guilt. A confession must either admit the elements of the offence of all facts which constitutes the offence. Once a Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an Appellate Court. See R. VS SYKES (1913) 8 C.A.R. 233 R. V. AJAYI ONIKORO 7 WACA P. 146." See also THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 at 276 G-S per ARIWOOLA JSC who said: - "If the Court is satisfied that the statement was made voluntarily, then it will admit same in evidence. See Samuel Ojegele Vs. The State (1988) NWLR (Pt. 71) 414. In other words, it is already settled that where an extrajudicial confession has been proved to have been made voluntarily and it is found positive and unequivocal amounting to an admission of guilt, such confession will suffice to ground a finding of guilt, regardless of the fact that the maker resiles there from or 26

36 retracted it altogether at the trial. See: Egboghonome Vs. The State (1993) 7 NWLR (Pt. 306) 383; Osetola & Anor Vs The State (2012) 17 NWLR (Pt. 1329) 251; ( 2012) 12 SCM (Pt. 2) 347; (2012) 6SC (Pt. 10) 148; (2012) 50 (2) NSCQR 598." I have earlier on in this judgment reproduced the evidence and findings made against the Appellant as 6th Accused at the trial by the Learned trial judge. The Appellant's learned counsel has argued relentlessly that the statements Exhibits 5 and "C" made by 1st Accused are not binding on him and cannot incriminate him. From the point of view of settled principles in criminal law, it is the maker of a voluntary confessional statement that is bound and caught in its web. A co-accused cannot directly or indirectly be made liable or implicated vide a confession not made by him unless that other co-accused implicated or incriminated in the confessional statement is confronted with the alleged confessional statement and he (coaccused) agrees with the contents or portion of the confessional statement implicating or roping him in the commission of the offence for which the maker of the confessional 27