Anthony Okoro Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
BODE RHODES-VIVOUR, J.S.C.
The appellant was charged and arraigned with three other persons on a one count charge which read as follows:
STATEMENT OF OFFENCE:
Murder contrary to Section 319 (1) of the Criminal Code. Cap.30 Vol. 11, Laws of the Eastern Nigeria 1963 as applicable to Imo State of Nigeria.
PARTICULARS OF OFFENCE
Anthony Okoro, Mbadiwe Okoro, Friday Okoro and Godwin Okoro on 14th day of October, 1987 at Umulolo in the Okigwe Judicial Division murdered Obediah Ofoegbe. Trial commenced on the 26th of October, 1993 in a High Court at Iho, Imo state, Onumajulu J presided. Ten witnesses testified for the prosecution. Godwin Okoro was subsequently withdrawn from the charge and discharged. The remaining three accused persons gave evidence in their defence. A fourth witness also testified for the accused persons. Thirteen exhibits were received in evidence.
In a considered judgment delivered on the 17th of November, 1997 the learned trial judge acquitted and discharged Mbadiwe Okoro and Friday Okoro, found the 1st accused person, Anthony Okoro guilty of murder and sentenced him to death. Anthony Okoro filed an appeal. It was heard by the Court of Appeal Port Harcourt Division. That Court confirmed the judgment of the trial court. The concluding paragraph of the judgment read thus:
“In conclusion, convicts appeal has no merit and is dismissed. I affirm the conviction and sentence of the appellant as found and declared at the trial court”.
This appeal is against that judgment. In accordance with Rules of this Court, briefs of argument were filed and exchanged.
Learned counsel for the appellant formulated six issues for determination from his nine grounds of appeal. They are:
- Whether the lower court was right when it upheld the judgment of the trial court when the appellant did not have a fair hearing in the trial court.
- Whether the lower court was right when it relied on the evidence of pw1, pw3, pw6, Pw7 and Exhibit B in upholding the finding of the trial court that it was the appellant that shot and or killed the deceased.
- Whether the lower court was right when it upheld the conviction and sentence of the appellant to death for murder by the trial court, after the trial court, based on the same evidence discharged and acquitted the 2nd and 3rd accused persons.
- Whether the lower court rightly upheld the conviction and sentence of the appellant to death for murder by the High Court, when the charge and the entire proceedings before the trial High Court were incompetent.
- Whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the appellant to death for murder by the trial court.
And for the respondent, learned counsel formulated three issues, which are:
- Whether the appellant was given a fair hearing.
- Whether there was evidence sufficient enough to warrant the conviction for murder and sentence to death of the appellant by the trial court.
- Whether the proceeding in the trial court was a nullity.
I am satisfied that the five issues produced by learned counsel for the appellant are adequate for the purpose of this appeal.
At the hearing of the appeal on the 20th of October, 2011 learned counsel for the appellant K. Wodu esq. adopted his appellant’s brief deemed duly filed on the 30th September, 2010 and a Reply brief filed on the 24th January 2011. Learned Counsel for the Respondent, N.A. Nnawuchi esq. adopted his brief filed on the 11th of November 2010 and in amplification of his brief referred us to the case of:
Anyanwu v State 2002 13 NWLR Pt 783 p107 on the doctrine of presumption of regularity and urged us to dismiss the appeal.
The facts are these:
Every morning at about 5a.m the deceased, Obediah Ofoegbu, before his death takes a short walk from his house to the village church to ring the bell to summon the villagers for morning prayers. On the 13th of October 1987 on his way back from the church he was shot. He immediately started shouting, saying “Anthony Okoro has shot me.”
His wife heard the gunshot and ran to her dying husband. She met him holding his neck which at the time was bleeding profusely. The deceased was crying and saying that the appellant shot him. A few people came to the scene and arranged to convey, and did convey the deceased to a nearby hospital and then to the Okigwe General Hospital. On his dying bed the deceased wrote a statement in the presence of the investigating police Officer PW7. That statement was admitted as Exhibit B. In exhibit B he said Anthony Okoro shot him, and when PW1, his wife visited him he told her that the appellant shot him. He died the next day and according to the Medical Doctor who performed the Post mortem examination, – PW6 from wounds consistent with gun shots.
Learned Counsel for the appellant submitted that the appellant’s right to fair hearing was grossly violated in the proceedings in the trial court since he was not heard in his defence. He observed that the appellant and DW4, his only witness, both testified in Igbo language, but their testimony was not translated to English language. He urged the court to hold that there was no interpretation as there was no record of such in the Record of Appeal. Relying on:
Damina v. State 1995 8 NWLR Pt.415 p513
Ogunye v. State 1999 5NWLR Pt. 604 p548
He concluded that the issue should be resolved in favour of the appellant.
Learned Counsel for the Respondent submitted that the issue of interpretation of proceedings in the trial court cannot be raised on appeal if it was not raised in the trial court. Reliance was placed on:
Uwaekweghinya v. State 2005 ALL FWLR PT 259 P.1911
Udosen v. State 2007 4NWLR Pt 1023 p125
He urged this court to resolve this issue in favour of the respondent.
Section 33 (6) of the 1979 Constitution, and/or Section 36 (6) (e) of the 1999 Constitution ensures that anyone charged with a criminal offence is entitled to have as of right an interpreter in court if he does not understand the language of the court. That is to say there must be proper interpretation to the accused person of the proceedings. See: State v. Gwonto 1983 1 SCNLR P 142 and it is mandatory that the court supplies an interpreter in cases where one is needed.
The impression of a reasonable person who was present at the trial is the true test of fair hearing. Justice cannot be said to have been done if an accused person who does not understand the English language (the language of the court) is denied the services of an interpreter. The entire proceedings would be strange to him and a grave miscarriage of justice would have occurred amounting to a failure of justice.
If the accused person and his counsel did not ask for an interpreter during trial the failure to supply one is treated as a matter of procedure and a conviction stands except the trial judge is satisfied that the failure to supply an interpreter led to miscarriage of justice.
Where an accused person is represented by counsel, objection to failure to provide an interpreter must be taken at the trial and not on appeal. The reasoning is simple. Once an accused person and his counsel acquiesced to an irregular procedure and there is no miscarriage of justice he cannot be heard to complain of the procedure on appeal. See: Egbedi v. State 1981 11-12 SC P98
Page 86 of the record of Appeal shows what occurred on the day the plea was taken it reads:
PLEA: The single count of the charge as contained in the information is read to the accused person in English language and interpreted and explained to each of them in Igbo language to the satisfaction of the court and each of the accused persons appeared perfectly to understand same before each pleads not guilty to the charge.
The record further shows that an interpreter was available when the following witnesses gave evidence, PW2, 4, 6, 7, 8, 9 but the learned trial judge failed to record that there was an interpreter when Pw1, 3, 5, 10 the appellant and his witness gave evidence.
My lords notwithstanding the instances where the learned trial judge failed to record that there was an interpreter, there is an irrebuttable presumption that an interpreter was present in court and interpreted the entire proceedings to the satisfaction of the appellant. This is so because at the commencement of the trial an interpreter was present and interpreted the plea to the accused person, and nowhere in the Record of Appeal is it shown that the accused person/appellant or his counsel objected to the non provision of an interpreter and they never said that they objected. The instances where the learned trial Judge failed to record the presence of an interpreter is an omission that can be waved aside as a mere irregularity.
Furthermore the appellant’s statement to the Police was recorded by Sgt peter-Ikonne in English language. His testimony on oath in court was given in Igbo language. What the appellant said in his statement is not different from his evidence in court. It has thus not been shown that failure to interpret has occasioned a failure of justice.
There was no objection to the non provision of an interpreter at the trial court by the appellant or his counsel, neither was there objection at the Court of Appeal. The issue comes up for the first time in this court. Once an accused person or his counsel fails to object to the non provision of an interpreter at trial their right to so object is lost forever. Such a right cannot be invoked on appeal.
I am in the circumstance satisfied that the appellant had a fair trial.
Learned counsel for the appellant observed that the learned trial judge relied on the evidence of PW1, PW3, PW6, PW7 and Exhibit B to find and hold that it was the appellant who shot and, killed the deceased. He further observed that the evidence of PW1 and PW3 are inadmissible because the said evidence was rendered in Igbo language and same was not translated into the English language by an interpreter. He adopted his argument canvassed for issue No.1; and urged this court to expunge from the records the evidence of PW1 and PW3.
Learned counsel observed that PW6, the Medical Doctor’s evidence is irrelevant as he never said that it was the appellant that shot the deceased. He urged us to hold that the court below was wrong to rely on evidence of PW6 to conclude that it was the appellant that shot the deceased.
Learned counsel observed that PW7, the investigating Police officer obtained Exhibit B the alleged written dying declaration made by the deceased, contending that there is nothing in his evidence that it was the appellant that shot the deceased. He urged us to so hold.
He submitted that exhibit B does not qualify as a dying declaration as the prosecution failed to prove that the deceased who allegedly made it believed that he was in danger of approaching death, observing that pw7 who obtained Exhibit B from the deceased said that the deceased did not believe that he was about to die. Referring to section 33 (1) (a) of the Evidence Act.
Akinfe v. The State 1988 2 NSCC Pt 1 p 313
R v. Ogbuewu 1949 12 WACA p483
Ogba v. State 1990 3 NWLR Pt 139 p505
Learned counsel submitted that Exhibit B does not qualify as a dying declaration because it has not been shown that the deceased made it at a time he believed that he was in danger of approaching death. Concluding learned counsel submitted that without the evidence of PW1, PW3, PW6, PW7 and Exhibit B there was nothing before the court of Appeal to uphold the finding of the trial court that the appellant shot and killed the deceased. He urged this court to resolve the issue in favour of the appellant.
Learned counsel for the respondent observed that concurrent findings were made by the courts below:
(a) That the deceased shouted repeatedly that the appellant had shot him.
(b) That as at the time the deceased was making Exhibit B he believed himself of being in danger of dying
(c) That the said statement was made contemporaneously with the fact of shooting such that it formed part of the same transaction.
and that they should not be disturbed since they are not perverse. Reference was made to:
Udosen v. State 2007 4 NWLR Pt 1023 p.125
Dokubo-Asari V. Federal Republic of Nigeria 2007 12NWLR Pt 1048 p320
He observed that Exhibit B fulfilled all the ingredients of a dying declaration and that even if it was expunged the evidence of Pw1 is enough to ground a conviction as it was unchallenged in cross examination. He urged this court to resolve this issue in favour of the respondent and hold that there was sufficient evidence to warrant the conviction and the sentences to death of the appellant by the trial court.
Section 33 (1) (a) of the Evidence Act states that:
Statements, written or verbal, or relevant facts made by a person who is dead are themselves relevant facts in the following cases:-
(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.
The learned trial judge held that Exhibit B is a dying declaration of the deceased. His lordship said:
“I must say that the belief envisaged by section 33(1) (a) of the Evidence Act is the belief of the deceased and not the opinion of any other person as to what that belief is. It is from the statement of the deceased that the belief must be garnered and not from the view held by other person. The deceased by himself may believe that he would die while a bystander believes he would not die.”
The Court of Appeal agreed with the above. I am in complete agreement with the above also. To qualify as a dying declaration the statement must be made by a person when he is dying or believes he is approaching death as a result of the injury which caused his death and such statements are admissible against anyone in situations where the cause of death is in issue.
At the time of making the statement the deceased must believe he is in danger of approaching death. Belief in this con is subjective and not objective.
Relevant extracts from Exhibit B runs thus:
“…I left my house to ring our bell for Morning Prayer as usual after ringing the bell, on my way back home to get prepared for the morning service, I saw Anthony Okoro jumped out from his hiding place opposite my house with gun. I flashed my touch light on him and called him by his name when he shot me with the gun on my head. I held my mind (sic) and flashed my touch light again and saw him with two of his brothers Mbadiwe Okoro and Friday Okoro accompanying him, what I said to him is if I die you caused it and my life is in your hand, they took to their feet. (sic)….”
In Akpan v. State 1992 5 NWLR Pt 248 p439
This Court held:
“that it is well established in our Law of evidence that a statement made by a person in imminent fear of death, and believing at the time it was made that he was going to die is admissible as a dying declaration.”
When the deceased was shot, bleeding profusely and was rushed to hospital and on his hospital bed makes a statement saying, “If I die you caused it.” To my mind that it is a statement made by the deceased in imminent fear of death and believing at the time he made the statement that he was going to die. Being in hospital gives anyone hope of recovery but that does not mean the deceased did not believe he was going to die. Exhibit B is a dying declaration and it was properly admitted in evidence by the trial court and affirmed by the Court of Appeal. The Court of Appeal found and I agree with the finding that the statements and evidence adduced by the prosecution witnesses. PW1, PW3, PW6 and PW7 as well as Exhibit B were all consistent and that it was actually the appellant that used the fatal weapon who shot him.
PW1 is the wife of the deceased. In her evidence in chief she said:
“…I heard the sound of gunshot and my husband’s voice “crying Anthony Okoro has shot me”. And that the deceased on his hospital bed told her that should he die PW1 should realize that it was Anthony Okoro that killed Him”.
The above are very material facts that ought to have been subjected to cross examination but they were not challenged by cross examination. I must state that examination in chief is an opportunity to state the facts of his case by the plaintiff and his witnesses. Cross examination is to test the correctness of the testimony of the plaintiff and his witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again. So where a witness, PW 1 testifies on a material fact in controversy (i.e. who killed her husband) the other party should if he does not accept PW1’s testimony as true cross-examine her on that fact or show that he does not accept the evidence as true. In the absence of cross-examination the court is at liberty to interpret his silence as an acceptance that the appellant does not dispute the material fact stated by PW 1.
PW3, conveyed the deceased from the first hospital to the second hospital and on oath said that at the first hospital that he saw the deceased at the hospital with blood gushing out from his left chin and in the presence of Dr Dan Igwe and the Nurses said that if he died from the injuries we should realize that it was Anthony Okoro who shot him. PW 6 is a medical doctor. It was he who performed the post mortem examination on the deceased and found that the deceased died from wounds consistent with gunshot.
PW 7 is the investigating police officer, and it was he who went to the deceased on his dying bed and obtained Exhibit B.
To succeed the respondent has a duty to establish to the satisfaction of the court, who shot the deceased To do this the respondent must prove beyond reasonable doubt, not only that it was the act of the appellant that resulted in the death of the deceased but also that death occurred in circumstances under one or more of the intents in section 316 of the criminal Code. See:
State v. Aibangbee 1988 2 NWLR Pt 84 p548
State v. Oka 1975 9-11 SC P17
Section 316 of the Criminal Code states that:
“316 Except as hereinafter set forth, a Person who unlawfully kills another under any of the following circumstances, that is to say:-
(1) if the offender intends to cause the death of the person killed, of that of some other person;
(2) if the offender intends to do to the person killed or to some other person some grievous harm;
(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) if death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder.
In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any Person.
In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
My lords, the statement of the deceased, (his dying declaration, Exhibit B) was corroborated by the testimonies of PW 1, PW3, PW6, and PW7. They all point clearly to the fact that it was the appellant who killed the deceased by shooting him with a gun. The act of shooting with a gun falls within the warm embrace of Section 316 (1) of the criminal code. Concurrent findings by the Courts below that the appellant shot and killed the deceased and is guilty of murder is correct.
This issue asks the question whether a court can convict a co-accused and discharge another co-accused on same or similar evidence. Learned counsel for the appellant submitted that where several persons are jointly charged for the commission of a criminal offence and based on the same or similar evidence, some are discharged, then all the others must also be discharged as some cannot be discharged and others convicted based on the same or similar evidence. Reliance was placed on:
Ebri v. State 2004 11NWLR Pt 885 P589
He observed that the appellant was convicted on Exhibit B, and the same Exhibit B formed the foundation for the acquittal and discharge of the 2nd and 3rd accused persons, further observing that the evidence against the appellant and the 2nd and 3rd accused persons are the same. He argued that there are doubts in Exhibit B and that the courts have held that when doubt has been cast on the evidence by the acquittal of some of the accused persons such piece of evidence should not be used as a basis to convict another accused person.
Reference was made to:
Umani v. State 1988 1NWLR Pt 70 P274
Orii v State 2008 10NWLR Pt 1094 P31
He urged this court to hold that the lower court was wrong when it upheld the conviction and sentence of the appellant to death for murder by the trial court, after the trial court based on the same evidence acquitted the 2nd and 3rd accused persons.
Learned counsel for the respondent observed that when evidence against two or more accused persons in a criminal case in all material respects are the same and a doubt is resolved by the trial judge in favour of one of the accused persons, the same doubt should be resolved in favour of the others. Reliance was placed on:
Akpan v. State 2002 F.W.L.R. P 1845
He observed that in this case the evidence is not in all material respect the same, contending that the evidence against the appellant is different from the evidence against the other accused persons. He observed that PW1 said that it was the name of the appellant the deceased said shot him, and in Exhibit B, the deceased said the appellant shot him, and at the time of the shooting the appellant was in the company of the other accused persons. Concluding he observed that the learned trial judge was right in finding that the case against the appellant is different from the case against the other accused persons.
Ebri v. State 2004 11 NWLR Pt 885 p 589 is authority for the position of the Law that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, the discharge of one must as a matter of Law, affect the discharge of the others. The reasoning being that if one or more of the accused persons is discharged for want of convincing evidence that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together. See on the above also:
Adele v State 1995 2NWLR Pt 377 P269
Kalu v State 1988 4NWLR Pt 90 P503
The question to be answered is whether the evidence is in all material respects the same.
The appellant and the 2nd and 3rd accused persons stood trial for murder. To establish a case of murder the prosecution has to prove the following:
(a) that the deceased died;
(b) that the death was not natural;
(c) that the act of the accused person caused the death of the deceased, or/and;
(d) that the deceased died as a result of injury caused by the accused Person. See:
Bwashi v. State 1872 6SC P93
Rex v. Abengowe 1935 3WACA P85
In acquitting and discharging the 2nd and 3rd accused persons the learned trial judge reasoned as follows:
“…The evidence of PW1 as to what the deceased told her appears to limit the incident to 1st accused. Although PW1 had under cross-examination stated that the 2nd and 3rd accused persons were also mentioned to her by the deceased, she did not state in what circumstances. This doubt which I entertain in respect the role played by the 2nd and 3rd accused persons must be resolved in their favour…”
The 2nd and 3rd accused persons were found not guilty of murder because there was doubt in the evidence linking them with the death of the deceased. The Court of Appeal agreed with the learned trial judge concluding that the appellant was responsible for the death of the deceased. That court said:
“…evidence of PW1, PW3, and PW6 has shown that the deceased was positive, unequivocal and irresistible in his statement, Exhibit B being his dying declaration that it was the appellant who shot and killed him. Deceased statement to his wife, the Police investigator and even in the presence of the other people who came to the scene and latter at the Community Hospital and General Hospital, Okigwe as testified before the trial court are sufficient proofs of circumstantial evidence that it was the appellant who shot him.”
Relevant extracts from Exhibit B (the dying declaration of the deceased) runs as follows:
…I saw Anthony Okoro jumped out from his hiding place opposite my house with gun. I flashed my touch light on him and called him by his name when he shot me with the gun …I flashed my touch light again and saw him with two of his brother Mbadiwe Okoro and Friday Okoro accompanying him…”
The deceased and the vital witnesses never said that the 2nd and 3rd accused persons were the persons who shot and killed the deceased.
What they said is that they were in company of the appellant when the appellant shot the deceased.
What then is the doubt There is no evidence linking the 2nd and 3rd accused persons with the offence of Murder, and it would be most unsafe to convict them in the absence of such evidence. There is extra evidence which makes the role of the appellant different from that of the 2nd and 3rd accused Persons.
It is clear that on the evidence available it was the appellant who shot the deceased. An act which resulted in his death. No one said that the 2nd and 3rd accused persons shot the deceased, and so the evidence used in convicting the appellant is not the same neither is it similar with the evidence against the 2nd and 3rd accused persons. If on the other hand the appellant and the 2nd and 3rd accused persons were charged with conspiracy to commit murder and the appellant was convicted on that count, while the 2nd and 3rd accused persons were acquitted, then an appeal court would acquit the appellant because the evidence for conspiracy is the same or interwoven around the appellant and the 2nd and 3rd accused persons. In this case there is no charge for conspiracy, only Murder. The trial court was thus correct to convict the appellant for Murder and acquit the 2nd and 3rd respondents because the evidence used in convicting the appellant was not the same or similar with the evidence available against the 2nd and 3rd accused persons for a charge of Murder.
The doubt expressed by the learned trial judge relates to a conviction for murder on the evidence available. He concluded quite rightly in my view that the 2nd and 3rd accused persons cannot be convicted for murder on the evidence before the court.
Learned counsel for the appellant observed that this case was originally before Ononuju J. of the Imo State High Court, Okigwe Judicial Division, and that the Chief Judge of Imo State ordered that the case be transferred to an Owerri High court where Onumajulu J. presided. He submitted that on the 7th of June 1993 Ononuju J. struck out the case, but Onumajuilu J. proceeded to hear the case as if it had not been struck out contending that where a criminal charge has been struck out it ceases to exist in the court. Reference was made to:
James v Nigerian Airforce 2000 13NWLR Pt 519 p513
He further observed that the order of Ononuju J. striking out the case was made without jurisdiction but such an order remains in force and must be obeyed until set aside. Reliance as placed on:
Rossek v. A.C.B. Ltd 1993 8NWLR Pt 312 p382
Mobil Oil (Nig) Ltd. V. Assan 1995 8 NWLR Pt 412 p109
He submitted that since the judge failed to set aside the order, the order striking out the suit is still in force, contending that the case came to an end when Ononuju J. struck it out, and so the proceedings before Onumajulu J. culminating in the death sentence passed on the appellant is null and void.
Learned counsel for the respondent argued that the right approach for this court to take would be to ignore the order and regard it as a non-event. He further argued that this court can invoke its powers under section 22 of the Supreme Court Act and do what the trial court failed to do, contending that the appellant would not be prejudiced if this court sets aside the null order made by Ononuju J. as no miscarriage of justice will occur. He urged this court to resolve the issue in favour of the respondent and hold that the proceedings in the trial court were competent.
On the 26th of April 1993 the Chief Judge of Imo State Ojiako C.J. pursuant to section 47(1) of the High Court Law cap 61 Laws of Eastern Nigeria, 1963 transferred this case from an Okigwe High court presided over by Ononuju J. to an Owerri High Court presided over by Onumajulu J. (see instrument of transfer on page 57 of the Record of Appeal) On the 7th of June 1993 Ononuju J. struck out the case.
As at the 26th day of April 1993 when the case was transferred by the Chief Judge vide instrument of transfer, Ononuju J. no longer had jurisdiction over the case and so striking out the case on the 7th of June 1993 over two months after it was transferred amounts to striking out no case as no case was before him. It was a null order.
When a judge makes a null order or one without jurisdiction it is advisable but not mandatory to go to court to set it aside. The only reason for going to court is to have it put on record that it has been set aside. Where on the other hand a null order, such as the one under review does not affect anyone, and no one is prejudiced by it, neither was there a miscarriage of justice by it, it is better ignored.
It was made by Ononuju J. for the purpose of tidying his Records, a very harmless act by the learned trial judge.
Learned counsel for the appellant observed that there are grave doubts in the case against the appellant and the trial court ought to have resolved the doubts in favour of the appellant.
He observed that the lower court discredited portions of Exhibit B casts grave doubts as to the veracity of the said Exhibit B in that there is no longer any certainty about the correctness of the statements contained therein. He then asked the question, if the trial court had found portions of the statements relating to the 2nd and 3rd accused persons as being untrue what is the guarantee that the rest of the statements implicating the appellant in the commission of the alleged crime is true, arguing that there is a grave possibility that the allegation against the appellant in Exhibit B is not true.
Highlighting another doubt learned counsel referred to the non interpretation of the evidence of PW1 and PW3 and observed that the doubt created in Exhibit B runs through the said dying declarations as narrated by pw1 and pw3. He urged this ought to so hold.
Learned counsel observed that before an accused person can be convicted for murder on circumstantial evidence the accused person must have been seen with the weapon he used to kill the deceased shortly after commission of the offence or the weapon must have been recovered from the accused person. Reliance was placed on State V. Ogbubunjo 2001 2NWLR pt 698 p576; Ukorah v. State 1977 NSCC Vo1.11 p218.
He further observed that there are grave doubts in respect of the identification of the appellant as the one who shot the deceased, and the fact that the gun allegedly used in shooting the deceased was never recovered.
Finally he observed that there is a fundamental conflict in the case of the prosecution that in the information the prosecution alleged that the appellant and the other accused person murdered the deceased on 14/10/87 while PW1 said the deceased died on 13/10/87 and the other prosecution witnesses said he died on 14/10/87. He submitted that conflict in respect of date of commission of criminal offence is fundamental particularly where the accused/appellant is consistently denying involvement in the commission of the offence.
He urged this court to resolve all these doubts in favour of the appellant and allow the appeal.
This issue was not responded to by the respondent’s learned counsel in the respondent’s brief. A response is unnecessary because in criminal appeals, after considering the issues in detail there is not much difficulty deciding if the case was proved beyond reasonable doubt.
The standard of proof in criminal trials is proof beyond reasonable doubt. A conviction would not be upset on appeal if the charge was proved by the prosecution beyond reasonable doubt.
In Miller v. Minister of pensions 1947 2 ALL ER p372 it was stated that:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted to fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as leaves only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
See on this: Lori v. State 1980 8-11 SC p. 81
The submissions of learned counsel for the appellant rest on what he termed “grave doubts” in the prosecution’s case. According to learned counsel if these doubts are resolved in favour of the appellant he would be entitled to an acquittal. The grave doubts are:
- That the learned trial judge discredited portions of Exhibit B in that if the portions of the statement relating to the 2nd and 3rd accused persons are untrue the portion implicating the appellant should also be untrue.
The portion that refers to the 2nd and 3rd accused persons in Exhibit B reads thus:
“…I hold my mind (sic) and flashed my touch light again and saw him with two of his brother Mbadiwe Okoro and Friday Okoro accompanying him…
The portion that refers to the appellant in Exhibit B is:
“…I say Anthony Okoro jumped out from his hiding place opposite my house with gun. I flashed my touch light on him and called him by his name when he shot (sic) me with gun on my head…”
The Learned trial judge did not find portions of Exhibit B relating to the 2nd and 3rd accused persons untrue neither was any portion of Exhibit B discredited by the learned trial judge. Rather he found that those portions could not sustain a charge of Murder against the 2nd and 3rd accused persons, moreso as the deceased and none of the witnesses said the 2nd and 3rd accused persons killed the deceased.
- On the non interpretation of the evidence of PW1 and PW3.
If there was non interpretation of the evidence of PW1 and PW3 it was the duty of the appellant and/or his counsel to object during the trial and not on appeal. The failure to provide an interpreter has always been treated as a matter of procedure and a conviction would not be disturbed on appeal except it can be shown that the failure to provide an interpreter led to miscarriage of justice. The appellant has failed to show how his assertion that there was no interpretation of the evidence of PW1 and PW3 led to miscarriage of justice.
- On conviction of the accused person on circumstantial evidence. That is to say the accused person must have been seen with the weapon used to kill the deceased shortly after commission of the offence or the weapon must have been recovered from the accused person.
- On identification of the appellant as the one who shot the deceased.
Immediately after the deceased was shot he started shouting, “Anthony Okoro shot me” He said it to the hearing of the crowd and PW1, PW3, and PW7. The deceased had a good view of the appellant after he pointed his touch light in the direction of the appellant at the time he was shot. On his dying bed he made a statement, Exhibit B in the presence of PW7 wherein he said again that it was the appellant who shot him. I am in the circumstances satisfied that it was the appellant who shot and killed the deceased.
- On conflict in the case of the prosecution as regards the date of death.
The charge reads that the deceased was murdered on 14/10/87. PW1, his wife said he died on 13/10/87 while all the other prosecution witnesses said he died on 14/10/87. If all the witnesses say the deceased died on 14/10/87 it may lead to suspicion that they were all tutored, moreso as they are villagers. PW1 said that her husband died on 13/10/87 and not a day later, 14/10/87 is to my mind a minor discrepancy that amounts to a non issue.
The case against the appellant rests on circumstantial evidence. Before an accused person can be convicted on such evidence it must be shown that:
- The circumstances from which an inference of guilt is arrived at must be cogently and firmly established;
- The circumstances must point towards the guilt of the accused person and no one else. See:
Ukorah v. State 1977 4SC P.167
Adie v. State 1980 1 – 2 SC P. 116
Gabriel v. State 1989 5 NWLR pt.122 p. 430
That is to say a conviction for murder based on circumstantial evidence would be justified only where the circumstances are such as to lead to no other conclusion, but that the accused killed the deceased.
Circumstantial evidence would sustain a conviction where it is consistent with the guilt of the accused person but inconsistent with his innocence.
The evidence of PW1, PW3, PW6, PW7 and the contents of Exhibit B (the deceased dying declaration) are compelling and conclusive evidence which to my mind is positive and unequivocal that the appellant was the one who shot the deceased. Both courts below were correct to find the appellant guilty of the offence of Murder.
The appeal is hereby dismissed.