(2018) LPELR-44640(CA)

Transcription

1 NWORU v. STATE CITATION: In the Court of Appeal In the Enugu Judicial Division Holden at Enugu HELEN MORONKEJI OGUNWUMIJU JOSEPH TINE TUR ON FRIDAY, 25TH MAY, 2018 Suit No: CA/E/26C/2017 Before Their Lordships: MISITURA OMODERE BOLAJI-YUSUFF Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal AMECHI NWORU - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: What prosecution must prove in a charge of murder "I will start by restating the trite principles of law in relation to what the prosecution must prove in a charge of murder. a) That the deceased 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 consequence. See Igabele V. State (2004) 15 NWLR Pt. 896 Pg. 314, Chiokwe v. State (2005) 5 NWLR Pt. 918 Pg. 424, Adekunle v. State (2006) 14 NWLR Pt.1000 Pg. 717."Per OGUNWUMIJU, J.C.A. (Pp , Paras. E-B) - read in context 2. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "As the Appellant's counsel pointed out, there are three modes of proving the ingredients of an offence: a) By direct evidence, b) By Confession, and c) By circumstantial evidence."per OGUNWUMIJU, J.C.A. (P. 17, Para. A) - read in context

2 3. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Position of the law on the defence of alibi "The appellant placed utmost reliance on his plea of alibi which literally means elsewhere. It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. See: Ozaki & Anor. v. The State (1990) 1 NWLR (Pt. 124) 92 at 109." In this case, the police prosecution witnesses PW3 and PW4 stated that after Exhibit P8 was elicited from one of the accused persons no attempt was made to investigate the alibi put up by the Appellant and other co-accused. There is no doubt that the defense of alibi was timeously raised by the appellant as required by law since it was raised immediately he was arrested. See Bashaya V State (1998) 4 SCNJ 210 and Sowemimo & Anor V. The State (2004) 4 SCM 207. Our population is largely illiterate with little or no knowledge of the requirements of the law not to talk of access to legal counsel immediately they are arrested. After a person indicates he was in his farm, the duty of an investigating police officer bent on finding out the truth is to ask for particulars, names and addresses of those who might support or disprove the alibi of the suspect. I am of the firm but humble view that since the onus is on the state to prove that the defence of alibi is not available to the accused as a total defence to the charge, immediately the defence is raised, the onus to disprove by investigating same shifts on the prosecution, the later must ask relevant or pertinent questions to enable it investigate the alibi. I humbly think that is the position of the law. See Yanor & Anor v. The State (1965) NMLR 337, Nwosisi v. The State (1976) 6 SC 109, Akpan v. The State (1973) 5 SC 231. Ogunbiyi JSC in Idemudia v. The State (2015) LPELR-24835(SC) quoted and reiterated the same position of the law where His Lordship stated as follows: "In order to establish the defence, all that the accused needs do is merely to put forward evidence accordingly, the onus is not on him to prove such defence but on the prosecution to disprove it. Again see Abudu V. State (supra) at 59 where this Court in a similar situation found the evidence against the appellant equally unreliable and unsafe, it was held therefore that the case against him was not proved beyond all reasonable doubt, and he was therefore entitled to that benefit. Coker, JSC in delivering the lead judgment had this to say at page 59 of the report:- "I agree with this statement of the law. He also stated the law as regards alibi, citing amongst other cases, Yanor & Anor. V. The State (1965) NMLR 337 and Christian Nwosisi V. The State (1976) 6 SC. 109, Akpan V. The State (1973) 5 SC 231. He concluded by stating at page 55. "From the foregoing, it is clear that the person who puts forward an alibi as his answer to a charge does not undertake upon himself any burden of proving that answer, and it is a misstatement of the law or in fact a misdirection to refer to any burden of proof resting on an accused in such a case. See R. V. Anthony Hugh Johnson (1962) 46 C.A.R. 45." I also agree that, that is correct statement of the law." I have noticed a gradual shift in the jurisprudence relating to alibi in recent times particularly as expounded by the trial Courts. The onus in criminal matters is fixed and rests on the prosecution. The fact that the accused is obliged to put up the defence of alibi as quickly as possible so that it would not appear to be an afterthought does not mean that he is obliged to prove it. To be a viable defence, he must be able to state the place where he was at the material time. The close questioning regarding particulars are supposed to be elicited by the Police to enable them investigate and disprove same. In my humble view, it was a misdirection in law for the learned trial judge to seek to put the onus of proof of alibi on the Appellant. In criminal trials, the onus of proof which is on the prosecution never shifts. Any misdirection on the question of onus shows that on a proper direction, the result would be the same. See: Ozaki v. The State (1990) 1 NWLR Pt.124 Pg. 94. In the circumstances, there being no investigation of the alibi put up by the appellant and also no eyewitness to fix the appellant at the scene where the deceased was attacked and abducted, I am of the view that the defence of alibi can avail the appellant."per OGUNWUMIJU, J.C.A. (Pp , Paras. A-E) - read in context 4. EVIDENCE - CONTRADICTION IN EVIDENCE: Whether court can pick and choose where there is contradictions in evidence of witnesses "...In this case, the police sought to prove by direct evidence of persons whose testimony was rendered at the trial Court of PW1- the complainant who wrote the petition to the police authorities and PW2, the wife of the deceased. PW1 stated in his petition and extra judicial statement to the police in Exhibit P3 that he was not present when the Appellant and other accused person attacked and killed Moses Akpa Nwafor at the beer parlour of one Fredrick Nwokpoku by someone who did not want his identity to be disclosed. However in his evidence on oath, he categorically stated that he was present when the incidents which led to the attack and taking away of the deceased took place at the beer parlour. The learned trial judge rightly rejected the evidence on oath of PW1 which was inconsistent with the earlier statement given by the witness as the Court is not allowed to pick and choose which evidence to believe. The learned trial Court held as follows on Page the record: "In the first place, the evidence of the PW1 that he was an eye witness to the alleged attack of Moses Akpa Nwafor was rendered inconsistent with the portion of his Exhibit P.3 where, he stated that it was Fredrick Nwokpoku that reported to him about the alleged attack and this Fredrick Nwokpoku was an eye-witness to the attack. And the law is that, where the oral evidence of a witness on oath is inconsistent with his extra-judicial statement to the police or his previous statement in writing, the Court will disregard the oral evidence and it will not act on the said statement. See Onubogu Vs State (1974) NSCC 358. In the instant case, the evidence of the PW1 that he witnessed the attack of Moses Akpa Nwafor will be disregarded by this Court because it is inconsistent with the extra-judicial statement of the same PW1-Exhibit P3 as stated hitherto." I have no reason to disagree with above reasoning. In respect of the evidence of PW2, the wife of the deceased, in Exhibit P4, she had stated that her husband went to Effium market square in the morning of 22/08/08 and she had not seen him since then. In other statements she said she was looking for her husband after the Appellant and other accused person came to threaten him in their home but that she was asked to go back home when she volunteered to take them to where he was. On oath, she gave evidence in great and specific details of the attack on her husband and that she was also present near the beer parlour at the market early in the morning when the attack on the deceased took place. The Learned trial judge in my humble view rightly disbelieved her evidence of what happened at the scene of the crime in totality when he held on Pg 152 of the Record as follows: "On the evidence of the PW2, it is obvious that she did not witness the alleged attack of her husband, because she was confronted with her statement, Exhibit P4 where, she said her husband went to the Effium Market Square in the morning of 22/08/08, and he did not return home. This is a contradiction of the evidence by the PW2 that she witnessed the alleged attack on her husband." The learned trial judge refused to place any weight on their evidence of being eyewitnesses during the attack on the deceased because their evidence on oath was inconsistent with their previous statement to the police. As stated earlier, the Court cannot pick and choose which evidence to believe and is bound to reject them both. See: Kayili V. Yilbuk & Ors (2015) LPELR (SC)."Per OGUNWUMIJU, J.C.A. (Pp , Paras. B-B) - read in context

3 5. EVIDENCE - COMPELLABLE WITNESS: Provisions of the law as it relates to the compellability of witnesses and the obligation of a State to pay for their transportation "...Let me first put the matter of the existence of an eyewitness straight. The learned Appellant's Counsel kept on referring to the Statement of an eyewitness which was quoted extensively on Paragraph 4.12 of the Appellant's brief. On record, there was no eyewitness statement which the learned trial judge was bound to consider. In ALL criminal or quasicriminal proceedings, vivo voce evidence must be given on oath before a Court of competent jurisdiction and the other side must be given an opportunity to cross examine that witness in order to fulfil the rules of natural justice "Audi Alteram Partem"- hear the other side. The Court cannot decide to look into its file and the proof of evidence filed to consider the extra judicial statement of a person who has not been called to give oral evidence in open Court and who has not been subjected under the fire of cross-examination. I will ignore such references by Appellant's counsel to the "Evidence of an eye witness". Learned appellant's counsel also made a vociferous point that the said "Eye witness" was not called by the prosecution and that this Court should exercise its powers to activate the presumption granted by S.167 (d) of the Evidence Act 2011 against the prosecution. This would mean that the Court is bound to presume that evidence which could be and is not produced would, if produced, be infavourable to the person who withhold that is this Court should presume that the Evidence of Maduabuchi Nwakpoku would have been against the prosecution if he were called to give evidence. I do not know how that presumption of fact can aid the Appellant in criminal proceedings, because the trial Court cannot be allowed to presume that the extra judicial statement of Maduabuchi Nwakpoku is favourable to the case of the Appellant and the Court can then act on it in his favour. Since it is in a criminal matter that statement is intrinsically inadmissible not having been tendered and admitted in open Court to show the inconsistency of a witness on oath before that Court. The duty of the defence counsel is to do their work exercise all diligence and efforts to defend the accused using the instrument of the law. Because according to the Administration of Criminal Justice Act 2015, a vital witness can be compelled to give evidence. Where failure to call a witness to give evidence can be said to inure in favour of an accused, would it not be better for a criminal trial lawyer to use all the provisions of the Administration of Criminal Justice Act to compel witness? I have to mention that learned counsel for the accused at criminal trials are fond of making this point without making any attempt at proactive defence of their client. Because of the nature of the charge, particularly murder with a sanction of death sentence, the state apparatus has by law been made to assist the defence in prosecuting its case. I concede that most cases are done pro bono, but the High Court is obliged to pay for the attendance of witnesses to Court. I will set out in extension the provision of the Administration of Criminal Justice Act 2015 which relate to compellability of witnesses and the State's obligation to pay for their transportation.?these provisions were in the previous Criminal Procedure Act and Criminal Procedure Code, but are rarely used by counsel. They are set down below: 241. (1) The Court may, on an application of the prosecution or the defence, issue a summon or a writ of subpoena on a witness requiring him to attend Court to give evidence in respect of the case, and to bring with him any specified documents or things and any other documents or thing relating to them which may be in his possession or power or under his control. (2) Where the prosecutor is not a public officer the person to whom the summons is addressed is not bound to attend unless his travelling expenses are paid to him (1) A Court with criminal jurisdiction shall have a process server specifically assigned to it. (2) The process server has the responsibility to effect due efficient service of witness summons, defendant's production orders, writs and all other processes issued in the Court in respect of all criminal matters. (3) A summons shall be served on the person to whom it is directed in the same manner as is set out in Section 122 or 123 of this Act or, with leave of the Court, Section 124 and Sections 126 to 130 of this Act shall apply to the summons. (4) Service of processes may be effected by registered reputable courier companies, recognized and authorised by the Chief Judge in accordance with the provisions of this Act, and the registered courier companies may be assigned to a Court with criminal jurisdiction as a process server in accordance with Subsection (1) of this Section. (5) The Attorney-General of the Federation or a person so authorized or the police, may serve on a person whom the prosecutor wishes to call as witness, a witness summons or writ of subpoena. (6) Proof of service of a process or document shall be endorsed by the process server effecting the service, and shall be filed in the Court's file Where a witness summoned to give evidence does not: (a) attend Court at the time and place indicated on the summons; and (b) provide any reasonable excuse for his non-attendance, then after proof that the summons was duly served on him, or that the person to be served willfully avoids service, the Court may issue a warrant to arrest and bring him before the Court Where the Court is satisfied in the first instance, by proof on oath, that a person likely to give material evidence, either for the prosecution or for the defence, will not attend to give evidence without being compelled to do so, then, instead of issuing a summons, it may issue a warrant for the arrest of the person (1) A witness arrested under a warrant shall, if practicable and where the hearing of the case for which his evidence is required is fixed for a time which is more than twentyfour hours after the arrest, be taken before a Magistrate, and the Magistrate: (a) may, on the witness furnishing security by recognizance to the satisfaction of the Magistrate for his appearance at the hearing, order him to be released from custody; or (b) shall, on the witness failing to furnish the security, order him to be detained for production at the hearing. (2) The provisions of this Act relating to bail, summons and warrants in respect of the defendant shall apply to witnesses. (3) A witness arrested or detained under this section shall not be kept in the same room or place as the defendant, if the defendant is in custody and the defendant shall not be allowed to make any contact with the witness (1) A witness who: (a) refuses or neglects, without reasonable cause to attend Court in compliance with the requirements of a summons duly served in the manner prescribed by law; or (b) departs from the premises of the Court without the leave of the Judge or Magistrate hearing the case, is liable, on summary conviction, to a fine not exceeding ten thousand naira or to imprisonment for a term not exceeding two months. (2) A complaint shall not be made for an offence under this section except by the order of the Court made during the hearing of the case for which the evidence of the witness is required A witness who is present when the hearing or further hearing of a case is adjourned, or who has been duly notified of the time and place to which the hearing or further hearing is so adjourned, shall attend any subsequent hearing and if he defaults, he may be dealt with in the same manner as if he had refused or neglected to attend the Court in obedience to a witness summons A person present in Court and compellable as a witness, whether a party or not, in a cause, may be compelled by a Court to give evidence, and produce any document in his possession, or in his power, in the same manner and subject to the same rules as if he had been summoned to attend and give evidence, or to produce the document and may be punished in like manner for any refusal to obey the order of the Court A witness shall take an oath or make a solemn affirmation in such a manner as the Court considers binding on his conscience (1) When a person attending Court and who is required to give evidence, without any sufficient excuse or reason: (a) refuses to be sworn or to affirm as a witness; (b) having been sworn or having taken affirmation refuses to answer any question put to him; (c) refuses or neglects to produce any document or anything which he is required by the Court to produce, the Court may adjourn the hearing of the case and may in the meantime by warrant, commit the person to prison or other place of safe custody for a period not exceeding thirty days. (2) Nothing in this section shall: (a) affect the liability of the person to any other punishment for refusing or neglecting to do what is so required of him; or (b) prevent the Court from disposing of the case in the meantime according to any other sufficient evidence taken by it. The provision for the payment of witnesses as contained in the Administration of Criminal Justice Act 2015 are set out below: 251. Where a person attends Court as a State witness, the witness shall be entitled to payment of such reasonable expenses as may be prescribed Where a person attends Court as a witness to give evidence for the defence, the Court may in its discretion on application order payment by the Registrar to such witness of Court such sums of money, as it may deem reasonable and sufficient to compensate the witness for the expenses he reasonably incurred in attending the Court The Court may permit, on application of a party for an adjournment of the proceedings, and in so doing, may order the party seeking the adjournment to pay to a witness present in Court and whose evidence it has not been possible to take owing to the adjournment such sum in the amount payable to a witness in accordance with Section 251 and 252 of this Act, or such sum as the Court may fix The amount of the expenses payable to a witness pursuant to Sections 251 and 252 of this Act shall be processed and paid by the Registrar of the Court to the witness out of the relevant vote as appropriated by the Judiciary. After all the above have been done and the witness changes his story that witness can be treated as a hostile witness and that evidence favourable to the accused tendered through that witness. Suffice it to say that the so called eyewitness who saw the Moses AKpa Nwafor being taken away would have been able to tell the Court precisely what happened if a summons had been issued at the instance of the defence to make him appear in Court."Per OGUNWUMIJU, J.C.A. (Pp , Paras. B-D) - read in context 6. EVIDENCE - EVIDENCE OF WITNESS: Whether the malicious intent of a witness can be used as a defence to raise doubt regarding the evidence of the witness "...The Appellant and the other accused persons had stated that the PW1 implicated them in the murder case out of malice because they had a quarrel over communal land which PW1 had sold without their consent. I have to agree with the learned trial judge that the police was not obliged to investigate the allegation of the land quarrel between the complainant-pw1 and the Appellant and the other accused persons at trial. It would indeed amount to a wild goose chase of no benefit to the defence if found to be true, since the fact of a previous quarrel over land in itself cannot detract from any other facts or evidence adduced by the prosecution. Generally, the issue of the malicious motive of the PW1 in giving his testimony would go to the credibility of his evidence and that point could have been elicited from him during cross-examination. There is no doubt that malicious intent of a witness or complainant can be a good defence where the defendant can say and then go on to prove that apart from the existing ill will on the part of the witness, the witness did something overtly to tamper with the evidence produced by the prosecution, for example, deliberately planting the clothes of the defendant at the scene of crime etc. Where there is no overt act of the witness, the mental state of having ill will against the defendant unless verbally expressed and conceded under cross-examination cannot be used by the defendant as a defence or to raise doubt regarding the evidence of a witness. Afterall, as the immortal bard for all seasons Williams Shakespeare would say: "There is no art to find the mind's construction in the face."per OGUNWUMIJU, J.C.A. (Pp , Paras. D-F) - read in context 7. EVIDENCE - CONTRADICTION IN EVIDENCE: Whether court can pick and choose where there is contradictions in evidence of witnesses "The Court cannot pick and choose which portion of the evidence of prosecution witness to believe. It is either the witness is a truthful witness or an outright liar whose total evidence must be evaluated as credible or incredible as the case may be. See: Kayili V. Yilbuk & Ors (2015) LPELR (SC). It is only an accused who has the luxury of stating several versions of a story and the Court is bound to consider all the versions before arriving at a conclusion as regards his credibility on each fact to make a finding in that regard. See: Ayeni v. The People of Lagos State (2016) LPELR-41440(CA); Osokoya v. Onigemo (2017) LPELR-42730(CA); Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 798) 623; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 245."Per OGUNWUMIJU, J.C.A. (P. 41, Paras. A-D) - read in context

4 8. EVIDENCE - DOCTRINE OF LAST SEEN: The doctrine of last seen and the extent of its application "The Learned trial Court was also of the view that the "Last Seen Theory" is applicable in the circumstances of this case. The theory postulates that where the accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to whatever happened to the later or how the later met his death. In the absence of an explanation, the trial Court is justified in drawing the inference that it was the accused that killed the deceased. See Illiyasu v. State, Igabele v. The State (2006) 6 NWLR Pt Pg.100. The jurisprudence behind the "Last Seen Theory" that raises, contrary to the norm, a presumption of guilt until innocence is proved is that there must have been credible eyewitness evidence that the deceased was last seen in the company if the accused. The evidence that the accused was last seen in the company of the deceased cannot be deduced by circumstances. If particularly where there is no corpus delicti as in this case, the body of the deceased is never recovered, or even where the dead body was later recovered, the accused person last seen with the deceased must explain the circumstances of his death. The last seen theory can only be activated where there is credible eyewitness testimony on oath that indeed the accused was "Last Seen" with the deceased."per OGUNWUMIJU, J.C.A. (Pp , Paras. C-E) - read in context

5 9. JUDGMENT AND ORDER - JUDGMENT OF COURT: Proper tag to be given to determinations of the Supreme Court and the Court of Appeal "I shall render my opinion in conformity with provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows: "294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice, who delivers a written opinion: Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing." Determination of disputes or controversies by Justices of the Court of Appeal or the Supreme Court as the case may be are either an "opinion" or a "decision" as provided in Section 294(2) of the Constitution. Though the word "opinion" is not defined, a "decision" is defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered in the following manner: "318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:- "Decision" means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation." Besides, the right of appeal in Criminal or Civil Proceedings has to be against decisions of the Courts that determined the dispute or controversy under Section 294(1) of the Constitution. The provision provides as follows: "294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof." Section 294(1) of the Constitution comes into play in "Every Court" that is "...established under this Constitution," etc. The Court of Appeal exercises original jurisdiction under Section 239(1)-(2) of the Constitution as follows: "(1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether:- a. any person had been validly elected to the office of President or Vice-President under this Constitution, or b. the term of office of the President or Vice President has ceased, or c. the office of President or Vice President has become vacant. (2) In the hearing and determination of an election petition under Paragraph (a) of Subsection (1) of this Section, the Court of Appeal shall be duly constituted if it consists of at least three Justice of the Court of Appeal." But the appellate jurisdiction of the Court of Appeal is under Sections 240 to 247 of the Constitution of the Federal Republic of Nigeria 1999 as altered to wit: "240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federation Capital Territory Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory Abuja, Sharia Court of Appeal of State, Customary Court of Appeal of a State and from decisions of a Court Martial or other Tribunals as may be prescribed by an Act of the National Assembly. 241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:- a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; b. where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings; c. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; d. decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person; e. decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; f. decisions made or given by the Federal High Court or a High Court:- i) where the liberty of a person or the custody of an infant is concerned, ii) where an injunction or the appointment of a receiver is granted or refused, iii) in the case of a decision determine the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and v) in such other cases as may be prescribed by any law in force in Nigeria. (2) Nothing in this Section shall confer any right of appeal:- a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action, b) from an order absolute for the dissolution of nullity or marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi, and c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only. 242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. (2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application. 243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be: a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed; b) exercised accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal. (2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal. (4) Without prejudice to the provisions of Section 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final. 244(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide. (2) Any right of appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by this Section shall be:- a. exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or the Court of Appeal, at the instance of any other person having an interest in the matter, and b. exercised in accordance with an Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. 245(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly. (2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this Section shall be:- a. exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter; b. exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. 246(1) An appeal to the Court of Appeal shall lie as of right from:- a. decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution; b. decisions of the National and State Houses of Assembly Election Tribunals; and c. decisions of the Governorship Election Tribunals on any question as to whether:- i. any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, ii. any person has been validly elected to the office of a Governor or Deputy Governor, or iii. the term of office of any person has ceased or the seat of any such person has become vacant. (2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or Tribunal established by the National Assembly. (3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final. 247(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal and in the case of appeals from: a. a Sharia Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Islamic personal law; and b. a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Customary law." The Court of Appeal hears evidence and relies on addresses from the parties or their learned counsel in order to determine the dispute or controversy when exercising original jurisdiction over persons and causes or matters expressly mentioned or provided in the Constitution. The Justice have to render an opinion or a decision in compliance with the provisions of Section 294(1) of the Constitution. But rarely does the Court of Appeal hear evidence and relies on addresses of counsel or the parties to determine a dispute or a controversy. I have read the proceedings, the argument of learned counsel and the decisions cited in the briefs. I have considered the reasoning of my learned colleague on the bench, Ogunwumiji JCA, who presided and has rendered a decision to allow the appeal. I am in complete agreement with my Lord that there was no iota of credible evidence beyond reasonable doubt to warrant the conviction and sentence of the appellant to death by hanging. I shall draw inspiration from what Irikefe, JSC (as he was) said in Ibrahim Vs. Shagari (1983) 14 NSCC 431 at 435 lines 5-8 about the evidence appellant had marshaled to upturn the election of Alhaji Shehu Shagari as the President of the Federal Republic of Nigeria that, "...the evidence was so palpably unreliable as to reduce the proceedings to a farce." In Sabiya Vs. Tukur & Ors. (1983) 14 NSCC 559, Aniagolu JSC held at pages that the case of the appellant was "...vague - a wodly mixed bag of incomprehensive assertions..." That is the position of the respondent in this appeal. I shall refer to the provisions of Section 294(3) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows: "(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members." I adopt the opinion of my learned colleague that this appeal should be allowed to enable the appellant breath and enjoy freedom and liberty as enshrined in the preamble to the Constitution of the Federal Republic of Nigeria 1999 as altered."per TUR, J.C.A. (Pp , Paras. E-D) - read in context

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7 HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State, Abakaliki Judicial Division, delivered by Hon. Justice B.A.N. Ogbu on 24/06/16 wherein the learned trial judge convicted the Appellant for the offence of murder and sentenced him to death by hanging. The Appellant by the information filed on 6/11/09 was arraigned together with Ikechukwu Nwafor, Michael Chukwu Obasi, and Chinedu Ekuma before the High Court of Ebonyi State, Abakaliki Judicial Division, Ebonyi State on a one count charge of murder to wit: STATEMENT OF OFFENCE MURDER contrary to Section 319(1) of the Criminal Code Cap 30 Vol. II, Laws of Eastern Nigeria as applicable in Ebonyi State. PARTICULARS OF OFFENCE Ikechukwu Nwafor, Amaechi Nworu, Michael Chukwu Obasi and Chinedu Ekuma on the 22nd day of August, 2008 at Okpoduma Road, Effium in Ohaukwu Judicial Division murdered one Moses Akpa Nwafor. In proof of its case, the prosecution called four witnesses. The Appellant testified in his own defence to the charge against him. 1

8 In the course of the trial, the prosecution called four witnesses namely PW1 Peter Eze, PW 2 Mrs. Ngozi Nwafor Akpa, PW3 Sergeant DanjiIllya, and PW4 ASP Elias Ude Chukwu. There were also documentary Exhibits tendered in the proceedings through PW3 and PW4, which were mainly extra judicial statements of the appellant, the co-accused persons and some of the witnesses. The Appellant raised the defence of alibi. The prosecution claimed that Moses Akpa Nwafor had died and it was the Appellant and the other accused persons that killed him. The prosecution claimed that the 4th accused person at trial made a confessional statement to the effect that he and the other accused persons grievously assaulted the deceased and subsequently handed him over to some men in Benue State. At the end of the trial, the Appellant and other co-accused were all convicted of the offence of murder and sentenced to death by hanging. Dissatisfied, the Appellant filed a Notice of Appeal on 5/10/16 and deemed filed on the same day. Record of Appeal was transmitted on 18/4/17, deemed filed same day. The Appellant s brief was filed on 2/6/17. The Respondent s brief was filed on 8/3/18 and deemed filed on 13/3/18. 2

9 In the brief settled by B.C. Uzuegbu Esq., the Appellant raised two issues for determination as follows: 1. Whether the Court below in the light of the evidence adduced in the case was right when it held that the prosecution proved the offence of murder beyond reasonable doubt against the Appellant through cogent and credible evidence as required by law 2. Whether the defences of alibi and malice timeously made by the Appellant which were not investigated by the police avail the Appellant. The Respondent in the brief settled by I.I. Alobu Esq. DPP, Ministry of justice, Abakaliki, Ebonyi State, P.I. Ogodo Esq., Assistant Chief State Counsel, Ministry of justice, Ebonyi State, raised two issues for determination as follows:- 1. Whether the prosecution successfully proved the offence of murder against the Appellant. 2. Whether the defences of Alibi and Malice avail the Appellant. Having read the record and the briefs of counsel, I have distilled the following sole issue for the determination of this appeal: 1. Whether the prosecution proved that the Appellant is not entitled to the defence of Alibi and 3

10 Malice and had successfully established a case of murder against the Appellant. SOLE ISSUE Appellant s counsel Mr. Uzuegbu Esq., argued that it is the duty of the prosecution in a charge murder to establish the following: (a) That the deceased died. (b) That it was the unlawful act or omission of the Appellant which caused the death of the deceased. (c) That the act or omission of the Appellant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. Counsel argued that the prosecution must satisfy the above requirements through credible evidence, and the three conditions must co-exist, and where one of them is absent or tainted with doubt, the charge is said not to be proved. Counsel cited Itu v. State (2016) 5 NWLR Pt Pg. 443 at 465 Paras. B-F; Igabele v. State (2006) 6 NWLR Pt. 975 Pg. 100; Uwagboe v. State (2007) 6 NWLR Pt Pg Appellant s counsel argued that the burden to prove the guilt of the accused is on the prosecution. Counsel argued that the prosecution did not prove the charge of murder against the Appellant.

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12 Counsel cited Bello v. State (2007) 10 NWLR Pt Pg. 564; and Sec. 135 Evidence Act, Appellant s counsel pointed out that the trial Court on page 152 of the Record held that from the evidence of PW2, she did not witness the death of her husband, because she said in her statement - Exhibit P4 that on the day of the incident, her husband went to the market square and never returned, which contradicted her evidence on oath. Learned Appellant s counsel argued that there was no eyewitness to the killing of Moses Akpa Nwafor since the evidence of PW1 and PW2 as eyewitness was not believed by the learned trial judge because of their inconsistencies. Counsel argued that PW3 and PW4 were the police investigators in the case at hand and they didn t witness the incident, they only gave evidence about their findings during the investigation, and their findings were based on the alleged confession made by the 4th accused at trial that the deceased was attacked by him and other accused persons. Counsel submitted that there was no eye witness to the alleged killing. 5

13 Appellant s counsel argued that the confessional statement of the 4th accused person has no bearing as to whether the Appellant committed the alleged murder. Appellant s counsel submitted that having held at Page 157 that Exhibit P8 the confessional statement of the accused was not binding on the 1st-3rd accused persons, the lower Court overruled itself and used Exhibit P8 to ground the circumstantial evidence on which the Court reasoned to convict the Appellant and the other accused persons. Counsel further submitted that the lower Court held that the incrimination of the Appellant was corroborated by other evidence. Counsel submitted that Exhibit P8, the confession of the 4th accused person is not evidence against the Appellant and any evidence to corroborate it is like putting something on nothing and expecting it to stand. Counsel cited Macfoy v. United Africa Co. Ltd (1962) AC 152. Appellant s counsel argued that before circumstantial evidence can form the basis for conviction, the circumstances must clearly and forcibly suggest that the appellant was the person who committed the offence and that no one else could have been the offender. 6

14 Counsel argued that the Appellant was not the person that committed the offence and that anyone else could have been the offender in the circumstances of this case. Counsel cited Adeniji v. State (2001) 13 NWLR Pt. 730 Pg. 375 at 390 Paras. F-H. Counsel argued that an eye witness in her extra-judicial statement in the Court s file stated that the people who kidnapped Moses Akpa Nwafor wore masks; they took him away alive to an unknown destination. Counsel argued that it is evident that it was not the Appellant that committed the offence, and anyone else could have been the offender. Counsel submitted that circumstantial evidence as it relates to the instant case is unreliable. Appellant s counsel argued that the prosecution withheld the evidence of the only eye witness because it would have truncated their case against the Appellant. Counsel argued that the prosecution need not call a host of witnesses, but when the evidence of a direct eye witness is available and the prosecution withholds it, doubt is created because they cannot leave out solid evidence and go for sketchy one. Counsel further argued that this Court is entitled to presume that the facts were against the prosecution 7

15 and they deliberately withheld it. This Court should presume the facts in favour of the Appellant. Counsel argued that the defendant has been able to establish that: (a) Such evidence existed and (b) It was the party that withheld it. Counsel submitted that the evidence of the eye witness existed and it was the prosecution that withheld it. Counsel cited Akindipe v. State (2012) 16 NWLR Pt Pg. 94 at 116 Paras. A-D. Counsel urged this Court to activate the presumption of facts provided by S. 167(d) of the Evidence Act against the respondent in the circumstances of this case. Appellant s counsel argued that the lower Court held at page 159 of the Record that the Appellant was the last person seen with the deceased. Counsel argued that there was no eye witness that testified at the lower Court that the deceased was last seen with the Appellant. Counsel further argued that Exhibit P8 cannot be used as a hanger since the lower Court rightly found that it cannot be used against the Appellant. Counsel submitted that the direct eye witness testified that those that took the deceased away were twenty people who wore masks, and that he could not identify any of the kidnappers. 8

16 Counsel argued that it was wrong for the learned trial judge on Page 159 of the Record to hold that all the proved evidence of the prosecution implicating the Appellant pointed irresistibly to the fact it was the Appellant that handled the deceased last before the deceased was not seen again. There was no eye witness testimony to that effect. Counsel submitted that there was no evidence directly pointing to the fact that Moses Akpa was last seen with the Appellant that would make the Last Seen Theory applicable. Counsel cited Madu v. State (2012) 15 NWLR Pt Pg. 405 at 447 paras. A-F; Rajashkhanna v. State of A.P. (2006) 10 SCC 172. Appellant s counsel argued that doubt as to the guilt of the Appellant must be resolved in favor of the Appellant where the ingredient of his offence was not proved beyond reasonable doubt. Counsel argued that where the guilt of the Appellant is in doubt, the Court should discharge him. Counsel submitted that a conviction of murder may be predicted on circumstantial evidence only when that evidence is compelling, unequivocal and points to only one 9

17 direction that is, it is the Appellant that killed the deceased. Counsel cited State v. Gwangwan (2015) LPELR-24837; Shande v. State (2005) 15 NWLR Pt. 939 Pg Lori v. State (1980) 8 11 sc 81; Apishe v. State (1971) 1 All NLR 50; Ugwu v. State (1972) 1 SC 128. In response, Learned Respondent s counsel Mr. I.I Alobu- Director of Public Prosecution, Ebonyi State submitted that the essential ingredient necessary to prove a charge of murder and the modes of proving the charge are as follows: a) By direct evidence, b) By confession, and c) By circumstantial evidence. Counsel cited Mohammed v. State (2007) 11 NWLR Pt 1045 Pg. 313 And 306, Emeka v. The State (2012) 9 ACLR 407 at 409 Ratio 8. Respondent s counsel argued that the prosecution relied on all the modes of proving the crime in this case. Respondent s counsel argued that for circumstantial evidence to be sufficient for conviction, it must point to the possibility that the offence was committed and it was the accused who could have committed it. Counsel argued that where such evidence is capable of two interpretations, one against and the other in favour of 10

18 the accused, the one favourable to the accused must be preferred, in such case, the prosecution would be taken not to have proved its case beyond reasonable doubt. Counsel cited Kingsley Omoregie v. State (2009) 10 NWLR Pt. 150 Pg. 493, State v. Kura (1975) 2 FSC 83. Counsel argued that to support a conviction based on circumstantial evidence, it must not only be cogent, complete and unequivocal, but compelling and lead to the irresistible conclusion that the accused and no one else is the murderer, it must leave no ground for reasonable doubt. There must be no other co-existing circumstance which can weaken such inference. Counsel cited Adepetu v. State (1998) 7 SCNJ 83; Fatoyinbo V. A.G. Western Nigeria (1996) NWLR Pg. 4; Fatilewa & Anor v. State (2007) All FWLR Pt. 347 Pg Respondent s counsel argued that at page 74 and 79 lines 1-5 of the Record, both PW1 and PW2 timeously identified the Appellant and other accused persons as one of those that went to the house of the deceased and violently demanded from his wife his whereabouts. The following day which was 22/08/08, the Appellant and other accused 11