Corporal Desmond Ononuju V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Owerri Division (hereinafter referred to as the lower court or the court below) delivered on the 24th March, 2011 confirming the conviction for murder and sentence to death by hanging passed on the Appellant. The Appellant as 3rd accused was charged along with others as follows:-

STATEMENT OF OFFENCE

Murder, Contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. II – Laws of Eastern Nigeria 1963 as applicable to Imo State.

PARTICULARS OF OFFENCE

Inspector David Poli, Sgt. Lazarus Adiele, Cpl. Desmond Ononuju, Inspector Victor Chiaka, PC Augustine Ochiaga, Inspector Sunday Uwadiegwu and Bonny Aikhadueki on the 15th day of August, 2002 along Orlu Road Junction by Mgbidi in Orlu Judicial Division murdered Christian Owerreoma. Each pleaded not guilty and the case proceeded to be heard with the prosecution calling five witnesses while the accused persons testified on their own behalf but did not call any witnesses. At the conclusion of the trial and in his judgment, the learned trial Judge Njemanze, J. found not guilty and discharged and acquitted the 1st, 4th and 5th accused persons while convicting and sentencing to death by hanging the 2nd, 3rd and 6th accused persons. An appeal against their conviction and sentence wherein the 3rd accused at the High Court, Corporal Desmond Ononuju was the 2nd Appellant at the Court below was dismissed and the conviction and sentence of death by the High Court was affirmed by the Court below. This is a further appeal to this court by Corporal Desmond Ononuju against his conviction and sentence of death by the trial court. It is pertinent to consider at this stage and in a nutshell the evidence of PW 2 – Boniface Ozumba which is fairly representative of the case for the prosecution at the High Court. His evidence was that he was travelling in his Nissan Car with registration number CY 926 AA with his brother in law one Christian Owerreoma on the 15th August, 2002 when they arrived at a checkpoint along Orlu Road Junction by Mgbidi. No sooner however had they left the checkpoint than they were chased by police officers from that check point in their ALGON Jeep. At the approach to the next checkpoint which was manned by mobile policemen, one of the policemen in the ALGON Jeep by name Inspector Uwadiegwu raised an alarm that PW2 and his brother in law Christian Owerreoma were thieves and the said Inspector Uwadiegwu and other policemen in the ALGON Jeep began to shoot at PW2’s car, prompting the mobile policemen at the next checkpoint to also start shooting at PW2’s car. PW2 and Christian Owerreoma were severely wounded and were taken to the White Rose Hospital Mgbidi where Christian Owerreoma was pronounced dead. The defence of both sets of policemen at their trial was that they had thought that PW2 and the deceased Christian Owerreoma were armed robbers as they had refused to stop their car at the regular police check point for routine check. They all however denied shooting at the deceased’s car. These are the brief facts of the case which have given rise to this appeal.

From the Grounds of Appeal the Appellant at page 7 of his Amended Brief of Argument dated the 22nd February, 2012 and filed on the 23rd February, 2012 but deemed properly filed on the 25th April, 2012 formulated the following six issues:-

1. Whether the lower Court was right to have consolidated and/or heard together the appeals filed in Appeal Nos. CA/PH/326A/2007, CA/PH/326B/2007 and CA/OW/251C/2010 instead of hearing them separately and whether it occasioned a miscarriage of justice on the Appellant.

(Ground 1)

2. Whether the findings of fact by the lower Court and the decision reached therefrom affirming the conviction and sentence of the Appellant was not perverse and whether the said decision did not occasion a miscarriage of justice on the Appellant.

(Grounds 3, 4, 5, 12 & 16).

3. Whether the lower Court was right in law to have affirmed the conviction and sentence of the Appellant for murder when the arraignment of the Appellant at the trial court did not comply with the mandatory statutory requirements of Section 215 of the Criminal procedure Act and Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which thereby robbed the trial Court of jurisdiction and rendered the entire proceedings a nullity.

(Ground 2)

4. Whether the lower Court was right in law to have affirmed the conviction and sentence of the Appellant when the evidence of the 2nd prosecution witness was tainted with material contradictions and the oral testimonies of DW4, DW5 and DW6, co-accused persons at the trial were uncorroborated, inconsistent and materially contradictory with their extra-judicial statements to the police.

(Grounds 6, 7, 9, & 10).

5. Whether the lower Court was right to have affirmed the conviction and death sentence of the Appellant when the prosecution failed to prove its case beyond reasonable doubt, as required by law.

(Grounds 8 & 15).

6. Whether the lower Court was right when it held that the statutory defences as provided for under sections 28, 261 & 271 of the Criminal Code and section 4 & 24(1) of the Police Act were not applicable nor available to the Appellant in this appeal and whether the lower Court’s decision did not occasion a miscarriage of justice on the Appellant.

(Grounds 13 & 14).

On the 28th March 2013 when this appeal came up to be heard Uche Obi, Esq., counsel for the Appellant adopted the said Appellant’s Amended Brief of Argument and the Appellant’s Reply Brief of Argument deemed properly filed and served on the 27th February, 2013 and urged this court to allow the appeal, set aside the conviction and sentence of the court below and discharge and acquit the Appellant.

The Respondent distilled the following six issues at page 5 of the Respondent’s Brief of Argument dated the 16th December, 2011 and filed on the 20th December, 2011:-

(1) WHETHER the hearing of Appeal Nos. CA/PH/326A/2007, CA/PH/326B/2007 and CA/OW/251/2010 together instead of hearing them separately by the Learned Justices of the Court of Appeal occasioned a miscarriage of justice.

(2) WHETHER the prosecution proved the case of murder contrary to Section 319 (1) of the Criminal Code beyond reasonable doubt against the Appellant.

(3) WHETHER the evidence of the co-accused persons were not corroborated.

(4) WHETHER the Appellant and the other accused persons had common intention to commit an unlawful purpose when they shot at the vehicle conveying the deceased person.

(5) WHETHER the defences provided in Sections 25, 261 and 271 of the Criminal Code availed the Appellant.

(6) WHETHER Sections 4 and 24(1) of the Police Act availed the Appellant.

On the said date of hearing S. A. Njoku, Esq., Hon. Attorney General of Imo State adopted and relied on the Respondent’s Brief of Argument and urged this court to dismiss the appeal.

One glaring fact about the issues formulated by the parties in their respective Briefs of Argument is that they are somewhat proliferated. This court has constantly and consistently frowned at the proliferation of issues in briefs of arguments. In OMEGA BANK NIGERIA PLC v. O.B.C. LTD (2005) 8 NWLR (PART 928) 547, Dahiru Musdapher, JSC (as he then was) lent his voice to this vexed question when he said that,

“this court has on several occasions condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.”

See also the following cases – IWOHA V. NIPOST LTD (2003) 8 NWLR (PART 822) 908; MOZIE v. MBAMALU (2006) 15 NWLR (PART 1003) 466; ATTORNEY GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PART 118) 646; UGO v. OBIEKWE (1989) 1 NWLR (PART 99) 566; ANON LODGE HOTELS LTD V. MERCANTILE BANK OF NIGERIA LTD (1993) 3 NWLR (PART 284) 721); OKWUAGBALA v. IKWUEME (2010) 19 NWLR (PART 1226) 54; GKF INVESTMENT NIGERIA LTD V. NITEL PLC (2009) 15 NWLR (PART 1164) 34.

The legal authorities on this subject matter are indeed inexhaustive.

The following in my view are the proper issues for the hearing and determination of this appeal.

1. Whether the lower court was right to have consolidated and or heard together the appeals filed in Appeal Nos. CA/PH/326A/2007, CA/PH/3268/2007 and CA/OW/251C/2010 instead of hearing them separately and whether it occasioned a miscarriage of justice on the Appellant.
2. Whether the lower court was right in law to have affirmed the conviction and sentence of the Appellant when the evidence of the 2nd prosecution witness was tainted with material contradictions and the oral testimonies of DW 4, DW 5 and DW 6 who were co-accused persons at the trial were uncorroborated, inconsistent and materially contradictory with their extra judicial statements to the police.
3. Whether the lower court was right when it held that the statutory defences as provided for under Sections 25, 261 and 271 of the Criminal Code and Sections 4 and 24(1) of the Police Act were not applicable nor available to the Appellant in this appeal and whether the lower court’s decision did not occasion a miscarriage of justice on the Appellant.
4. Whether the lower court was right to have affirmed the conviction and death sentence passed on the Appellant for murder when the prosecution failed to prove its case beyond reasonable doubt as required by law.

What I have done is to prune down and adopt the issues formulated by the Appellant while changing the order as they appear in the Brief where necessary. It is hoped that all the questions for determination in both briefs of argument are subsumed in these issues. With respect to the first issue, the Appellant has submitted that the consolidation suo motu by the Court below of Appeal Nos CA/PH/326A/2007, CA/PH/326B/2007 and CA/OW/251C/2010 without a formal application from the parties was wrong and a breach of fair hearing which should lead to a nullification of the proceedings no matter how well conducted.

Appellant placed reliance on WING COMMANDER SHEKETE V. THE NIGERIA AIR FORCE (2007) 14 NWLR (PART 1053) 159; BAKOSHI v. CHIEF OF NAVAL STAFF (2004) 15 NWLR (PART 896) 268; PATRICK ZIIDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 3 NWLR (PART 1022) 554 at 568. THE STATE EX PARTE CHINASA AGBAEZE & ANOR V. CUSTOMARY COURT ITEM DISTRICT & 5 ORS (2007) 7 NWLR (PART 1032) 192. Counsel has been honest enough to concede in paragraph 3.1.9 at page 10 of the Appellant’s Amended Brief of Argument that there is a paucity of authorities on the consolidation of appeals. Counsel for the Respondent has submitted that the hearing of the Appeals together did not becloud the mind of the learned Justices of the Court below, the appeals having arisen from the same or similar facts of murder of the deceased but filed separately by the Appellant who were represented by Counsel of their choice. The paramount consideration I must say is whether the hearing of the appeals together occasioned a miscarriage of justice. What amounts to a miscarriage of justice was considered by this court in SABURI ADEBAYO V. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (PART) 201 where Muhammad, JSC said as follows,

“It is the decision of this court in many decided cases that in deciding upon whether there had been a miscarriage of justice, the Court of Appeal dealing with the issue raised must be satisfied that it is substantial, not one of mere technicality which had caused no embarrassment or prejudice to the Appellant.” See also OKEGBU V. THE STATE (1979) 12 NSCC 151 at 156. Quite germane to this point now being discussed is what Ogunwumiju, (JCA) who wrote the lead judgment said at page 264 of the Records –

“The Appellants filed separate Notices of Appeal as required by the Rules of this Court. In a needless procedure, different files were opened for each Appellant. Each Appellant was represented by a counsel of his choice and they filed different briefs. The Appeals were taken together. Because of the different interests and defence inherent in the case made by each Appellant and the circumstances of this case, I will address the issues raised by each Appellant separately as contained in the different briefs in respect of their appeal or it has been submitted on behalf of the Appellant that the evidence of PW2 at the trial was contradictory with his statements made to the police on the 15th August, 2002, 17th August 2002 and 28th August, 2002 which contradictions were not only material but remained unexplained by PW2. Counsel therefore submitted that such material contradictions ought to have been resolved in favour of the Appellant. Reliance was placed on QUEEN V. UKPONGE (1961) ANLR 25 9/11 SC 139, JIZURUMBA V. STATE (1976) 3 SC 89 and ONUBOGU v. QUEEN (1975) 9 SC 1 where this court said as follows:

“where A witness gives evidence in court which is inconsistent with a statement he had made earlier before the trial in the absence of satisfactory explanation of the inconsistency, the court is to regard such witness as unreliable …where there are such inconsistencies in the evidence before a criminal court such accused person should be given the benefit of doubt and should not be convicted on the basis of such unreliable evidence.”

Counsel went further to submit that the rejection of the evidence of the witness would be that both his extra judicial statement to the police and his evidence in court would be seen as worthless and therefore discarded as the court cannot be expected to pick and choose between two inconsistent statements. Reliance was placed for this proposition of the law on HENRY NWOKEARU v. THE STATE (2010) 15 NWLR (PART 1215) at 27. Counsel went further to submit on behalf of the Appellant that the lower court erred in law when it affirmed and upheld the conviction and sentence of the Appellant based on the uncorroborated oral testimonies of DW 4, DW5 and DW 6, who were also co-accused persons when such oral testimonies were in material conflict or contradiction with their previous extra judicial statements to the police. These statements to the police were that no mobile policeman including the Appellant shot at the car in which the deceased was travelling. Some years later DW 4, DW 5 and DW 6 had shifted from their earlier statements to the police to now say in their oral evidence in court that the Appellant shot at the vehicle in which the deceased travelled. Counsel submitted on behalf of the Appellant that it was wrong for the court below to have ascribed any credibility to the said oral testimony of DW4, DW5 and DW 6 especially when the name of the Appellant was never linked to the crime by DW 4, DW 5 and DW 6 at the earliest opportunity. Reliance was placed on the following cases – ABDULLAHI V. STATE (2008) 15 NWLR (PART 1115) 203 at 216 – 217; UDEH v. THE STATE (1991) 8 NWLR (PART 211) 522; SUNDAY & ANOR v. THE STATE (2009) 16 NWLR (PART 1168) 443.

Counsel went further to say that the Appellant, it had been shown, retired his gun and accounted for his ammunition as contained in his extra judicial statement to the police on the 5th September, 2002 and 13th September, 2002 which factual situation was consistent with his oral testimony in court. Appellant’s counsel also referred to the acceptance by the trial court of two apparently contradictory pieces of evidence by DW 2 and DW 4, one to the effect that Inspector Sunday Uwadiegwu fired a gun shot into the air and the other that Inspector Sunday Uwadiegwu fired at the vehicle and submitted that such contradictory evidence ought to have been resolved in favour of the Appellant. Much emphasis was placed by Appellant’s counsel on the need for corroboration of the evidence of DW 4, DW 5 and DW 6 being evidence of co-accused persons who could have their own selfish individual interests to protect. Reliance was placed on OSITA EMORDI v. THE STATE (2000) 8 NWLR (PART 670) 604 at 605; OKORO v. THE STATE (1988) 5 NWLR (PART 95) 255; UKUT & ORS v. THE STATE (1965) ANLR 325; OYEDIRAN V. REPUBLIC (1967) NWLR 122 at 127. It is improper, Appellant’s counsel went on further to submit, for the trial court to rely on the evidence of an accused person who has been totally discredited and found to be a liar in convicting a co-accused. Reliance was placed on SHODAY A. V. STATE (1992) 2 NWLR (PART 230) 457 OGUONYE V. STATE (1995) 8 NWLR (PART 413) 333 at 349; STATE V. ONYEUKWU (2004) 14 NWLR (PART 893) 340 at 378 – 379 where this court held that.

“the evidence of an accused person in a criminal trial cannot be received as evidence either for or against another accused person, the reason being that otherwise there would be a great danger that one accused person would be tempted to exculpate himself at the expense of his co-accused. Thus a statement of an accused person cannot be used as the evidence against a co-accused without corroboration. The evidence when not corroborated goes to no issue. And neither the evasiveness nor the brazen falsehood of a co-accused would be an excuse for the prosecution to assume that the case has been proved beyond reasonable doubt.”

Respondent on its part has submitted that where an accused gives evidence against a co-accused, it is admissible for all purposes against a co-accused and does not require corroboration before it can be acted upon by the court against the co-accused, the only requirement being that the trial judge should warn or caution himself before convicting on the uncorroborated evidence of a co-accused. The court, Respondent’s Counsel said is not obliged to seek for corroborative evidence of an accomplice. Counsel relied on Section 178 (2) of the Evidence Act and to the cases of IDAHOSA V. QUEEN (1965) NMLR 85, OKOSI V. STATE (1989) 1 NWLR (PART 100) 624; SALISU YAHAYA v. STATE (2005) 1 NCC 120 at 140. Respondent’s Counsel went further to say that in the present case, the learned trial judge cautioned himself before convicting the Appellant and two others in these words,

“I have painstakingly and cautiously considered the evidence of DW1, DW2, DW3, DW4, DW5 and DW6 who are co-accused persons in this case and whose portions of evidence incriminated some of the co-accused persons.”

Counsel said DW 4 and DW 5 were among the mobile policemen at the checkpoint with the Appellant and were in a position to say who shot at what. Their evidence was thus very material and revealed the policemen who shot at the vehicle. On the other hand, the oral evidence of DW 1, DW 2, DW 3, DW 4, DW 5 and DW 6 were materially in consonance with the evidence of PW 2 and PW 4 (an independent witness) as to how the deceased was killed which evidence implicated the Appellant.

It is the further submission of learned Counsel for the Respondent that the evidence of a co-accused on oath that he witnessed and/or participated in the actions that led to the crime is in law strong in relation to the persons involved in the commission of the crime. MICHAEL V. THE STATE (2008) 13 NWLR (PART 1104) 361 at 383 was cited in support. Counsel referred to the evidence on oath of DW 4 that, “Inspector Sunday Uwadiegwu fired at the vehicle. As he fired the 3rd accused (Appellant in this appeal) and 6th accused persons also fired at the red car”; to the evidence of DW5 that, “Corporal Desmond Ononuju (Appellant in this appeal) started to fire on the red car. Also Cpl. Bonny Aikhadueki who was with Cpl. Desmond Ononuju fired at the red Nissan car” and the evidence of DW 5 that, “Cpl. Desmond Ononuju who was on the same side with me fired at the red Nissan car. He fired two gun shots into the red Nissan car.” Counsel said they are evidence on oath from co-accused persons to the effect that the Appellant shot at the vehicle carrying the deceased, and which evidence do not contradict one another and directly implicate the Appellant and do not require corroboration being the evidence of co-accused persons. They strengthen, Counsel submitted, the fact that the Appellant participated in the shooting that led to the death of the deceased and such evidence is admissible for all purposes and the court is not bound to look for corroboration. Counsel fell back on OYAHIRE v. THE STATE (2006) 7 SCNJ 319 at 332- 333.

PW 2 Boniface Ozumba it was who drove the red Nissan car in which the deceased Christian Owerreoma was seated on the 15th August, 2002 when it was allegedly shot at by the Appellant and other policemen. It is being submitted on behalf of the Appellant Cpl. Desmond Ononuju who was third accused person at the trial in the High Court that Statements made by him (PW2) to the police on the 15th August, 2002, 17th August, 2002 and 28th August, 2002 are materially contradictory to his oral evidence on oath in court in the course of trial. Recourse must now be had to the Records. At pages 13 – 14, beginning from line 35 on page 13 to page 14 this is what Boniface Ozuaba, known also as Boniface Ozumba said in his statement to the police – “I was in a haste with my in-law which made me not to stop when the police stopped me near Nempi. I did not know that the policemen were pursuing me after I refused to stop near Nempi. Again I was in a speed when I was stopped by the police. The particulars of the vehicle are in the vehicle.”

On the 17th August, 2002, the said Boniface Ozuaba also made another statement to the police contained at pages 16 – 17 line 35 on page 16 to line 4 at page 17 of the record where he said as follows, “what made me not to stop at the mobile policemen checkpoint was because of the shock and panic that the sporadic firing of the ALGON Policemen has inflicted on me.”

This statement was admitted in evidence as exhibit “B”. In yet another statement made to the police at Zone 9 police Command Umuahia on the 28th August, 2002 contained at page 11 lines 5 – 7 of the Record, PW2 said as follows, “As I was going reaching the Mgbidi/Uli road, I saw the police ALGON Jeep following my car. I did not stop I continue (sic) to move.” However at page 86 of the Record, to this question put to him under cross-examination – Question: “You were in a haste that day because you wanted to get home to collect money to give to your in law for his wedding the next day”, PW2’s response was, “I was not in a hurry. I was driving normally.” This evidence of PW 2 under cross examination is materially contradictory to his statement to the police on the 15th August, 2002 that he was in a haste with his brother in-law, the late Christian Owerreoma which made him not to stop when the police stopped him near Nempi. It is also contradictory to his statement to the police on the 17th August, 2002 that what made him not to stop at the mobile policemen checkpoint was because of the shock and panic that the sporadic firing of the ALGON policemen inflicted on him.

Equally contradictory materially to his statement to the police on the 28th August, 2002 that reaching Mgbidi/Uli road he saw the police ALGON jeep following his car. He did not stop and continued to move is his evidence in court at pages 78 – 79 of the Records that, “At Mgbidi Eziala Road, he saw the policemen who stopped him. He stopped. The police were with the police official vehicle ALGON Jeep. One of them came and looked inside the vehicle and saw that he was in the vehicle with only Christian Owerreoma. He motioned on him to continue his journey which he did until he got to a place where the mobile policemen were also on check. He stopped. As he did so the policemen in the ALGON Jeep stopped behind his vehicle and immediately started to fire at his vehicle. He drove off stopping after about two poles. As he stopped the policemen in the ALGON jeep stopped behind him and a search by them of his vehicle revealed nothing. Counsel for the Respondent has submitted that these material contradictions were not explained to the court by PW 2 and it was wrong for the trial judge to have convicted the Appellant on the basis of such contradictory and inconsistent evidence. There is a long and almost inexhaustive line of judicial authorities by this court that in the prosecution of criminal cases material contradictions in the evidence adduced by the prosecution which lead to doubts as to the guilt of the accused must be resolved in favour of the accused person. In THE STATE V. IDAPU EMINE & ORS (1992) NWLR (PART 256) 258, this court per Kawu, JSC, held that, “The principle is well established in our criminal law that any doubt as to the guilt of the accused, arising from contradictions in the evidence adduced by the prosecution on material issues must be resolved in favour of the accused, see also IGBO V. THE STATE (1975) 11 SC 129; AKPABIO V. THE STATE (1994) 7 NWLR (PART 359) 635; ONUBOGU v. STATE (1974) 9 SC 1; BUBA v. STATE (1994) 7 NWLR (PART 355) 195; PRINCEWILL v. STATE (1994) 6 NWLR (PART 355) 703; ITESHI V. ONWEAREHIA V. STATE (1976) 9 – 10 SC 305; R. V. WILCOX (1961) 1 ALL NLR 531. We shall come to this later but let us now turn our attention to what the Appellant’s counsel has referred to as the uncorroborated oral testimonies of DW 4, DW 5 and DW 6 who were also co-accused persons vis-a-vis their extra judicial statements made to the police which have led to the conviction and sentence of death on the Appellant which conviction and sentence has been affirmed by the Court below. DW 4 Inspector Victor Chiaka in his Statement to the police dated the 22nd August, 2002 at page 43 of the Records said as follows at lines 26 – 31, “At my point non (sic) of my men fired any gunshot because we did not know why they (ALGON jeep) were chasing the car, my men only used vehicle to block them which both the ALGON jeep and the red car subsequently passed through towards Uli in Anambra State. “This statement was admitted in evidence as exhibit “H”. DW 5 PC Augustine Ochiaga made a statement to the police on the 22nd August, 2002 contained at page 51 lines 9 – 21 of the Records where he said as follows; “we did not open fire we only try (sic) to assist in blocking the road but then the red car maneuvered from our point…” This statement was admitted in evidence in Court as exhibit “J”. DW6 Bonny Aikhadueki in his statement to the police on the 22nd August, 2002 at page 58 line 23 of the Record stated as follows, “We mobilemen did not fire.” This statement was admitted in evidence as exhibit “K1”. From these statements to the police none of the policemen at the check point manned by mobile policemen admitted that any of the mobile policemen including the Appellant shot at the red Nissan car carrying the deceased on that fateful day being 15th August, 2002. We shall now proceed to examine the evidence of DW 4, DW 5 and DW 6 in court in the course of trial and in relation to the Appellant. It is instructive to note here that in their oral testimonies in court a few years later DW 4, DW 5 and DW 6 made a complete volte face from their earlier statements to the police that no mobile policemen including the Appellant was involved in the shooting of the red Nissan car that was conveying the deceased to now say that the Appellant had been involved in the shooting incident into the car conveying the deceased. At page 140 lines 15 – 17 of the Record DW 4 said as follows, “As he fired the 3rd (i.e. the Appellant) and 6th accused persons also fired at the red car.” DW 5 at page 145 lines 5 – 7 of the Records said, “Cpl. Desmond Ononuju started to fire on the red car.” On his own part DW 6 at page 148 lines 4 – 7 of the Records said as follows, “Cpl. Desmond Ononuju who was on the same side with me fired at the red Nissan car. He fired two shots inside the red Nissan car.” The aspect of this case which I find very intriguing and interesting is that the learned trial judge based his conviction and sentence of the Appellant wholly on these pieces of evidence of DW 4, DW 5 and DW 6 which was affirmed by the court below. The Appellant was implicated by name by DW 4, DW 5 and DW 6. Not even the star witness for the prosecution PW 2 Boniface Ozumba or Boniface Ozuaba whose evidence as we have seen earlier was shaky, inconsistent and contradictory, but were it to be believed, implicated the Appellant by name. Not even the evidence of PW4 the independent witness or the evidence of any other witness implicate the Appellant by name. DW4, DW5 and DW 6 were mobile policemen, same with the Appellant at the 2nd checkpoint. They are co-accused persons with the Appellant and their initial statements to the police were to the effect that no mobile policemen including the Appellant, shot at or into the car in which the deceased Christian Owerreoma was travelling with PW 2. From this earlier stand in their statements to the police, they completely changed in their evidence in court a few years later to pinpoint the Appellant as having taken part in the shooting of the red Nissan car conveying the deceased. How much value is it right and proper for any court of law to ascribe or attach to these pieces of evidence This is more so when the offence for which the Appellant is charged, sentenced and convicted and which has been confirmed by the court below is a capital offence. Could the evidence of DW 4, DW 5 and DW 6 who are co-accused persons not have been corroborated Could the learned trial Judge not have warned or advised himself of the dangers in not seeking such corroboration Learned Counsel for the Respondent has drawn the attention of this court to page 201, of the Records where the learned trial Judge warned or cautioned himself in these words, “I have painstakingly and cautiously considered the evidence of DW 1, DW 2, DW 3, DW 4, DW 5 and DW 6 who are co-accused persons in this case and whose portions of evidence incriminated some of the co-accused persons.” How “painstakingly” and “cautiously” has this self caution on the part of the learned trial judge been On appeal the lower court’s decision is that the evidence of DW 4, DW 5 and DW 6 being co-accused persons do not need corroboration and that the trial court is not bound to look for corroboration. Is this legal postulation sacrosanct and settled on the authorities I must not be misunderstood as saying that corroboration is always necessary. That would be tantamount to unilaterally changing the true position of the law which I neither have the competence nor the desire to do. The point I seek to make here is that where a witness has an interest to serve or protect, great caution should be exercised in the acceptance hook line and sinker of his evidence. In UKUT & ORS V. THE STATE (1966) NMLR 18 Justice Bairamain made the position clear when he said as follows, “It is prudent for the trial Judge to remind the jury or himself of the need for caution in regard to any witness, including a defendant who has an interest to serve.” He went on further to say as follows, “The judicial attitude despite the clear words of section 177 (2) of the Evidence Act is that although the evidence of a co-accused incriminating another is not to be regarded as the evidence of an accomplice which requires corroboration, to be relied upon it was necessary to find corroboration outside the evidence of the accused person.”

(Underlining mine for emphasis.)

In OSARODION OKORO V. THE STATE (1988) NWLR (PART 94); (1988) 12 SC (PART 11) 88 which is similar to the present case one of the questions for determination by this court was whether the trial Judge and Justices of the Court of Appeal were right to have convicted the Appellant solely on the uncorroborated evidence of the 6th and 7th accused persons who were co-accused at the trial court. As the court pointed out there was no dispute that the Appellant could not have been convicted of the murder of one Monday Mozea without the evidence of the 6th and 7th accused persons. Karibi Whyte, JSC, reading the lead judgment had this to say, “Thus in UKUT & ORS V. THE STATE (supra) the practice became established that though the evidence of a co-accused is not to be regarded as the evidence of an accomplice, it does require corroboration or warning. See OGUNDIPE & ORS V. QUEEN (1954) 14 WALA 458. Obviously a co-accused person is a person who has his own purpose to serve. The evidence of such a witness must be suspect and regarded with considerable caution.” In the present case now being considered DW 4, DW 5 and DW 6 quite apart from the possibility that they could have their own purposes to serve, have undoubtedly shown that they are not reliable and trust worthy people whose words can be taken as the gospel truth. Truth is sacrosanct and constant. It does not waiver. Truth is neither variable nor subject to changes in circumstance. Once truth becomes inconsistent and as variable as the weather, it ceases to be sacrosanct. It ceases to be truth and must be discarded. DW 4, DW 5 and DW 6 are men who in one breath had stated in writing at the police station individually and separately that they and the Appellant did not open fire on the red Nissan car in which the deceased Christian Owerreoma was being conveyed only to change gear in court to say that the Appellant shot at the car. How safe is it to send a man to the gallows based solely on the evidence of such witnesses whose very words cannot be trusted. I said this earlier and I will say it again for the umpteenth time that no other witness singled out the Appellant by name or description as having shot at the red Nissan car except DW 4, DW5 and DW6. The Appellant himself in his extra judicial statement to the police on the 15th August, 2002 and in his oral evidence in court denied ever shooting at the red Nissan car conveying Christian Owerreoma. Instead he was among those who conveyed Christian Owerreoma to the White Rose Hospital along Oguta road Mgbidi where he later died.

I shall take issues 3 and 4 together as it is possible and convenient to do so. Issue 3 is whether the lower court was right when it held that the statutory defences as provided for under sections 25, 261 and 271, of the Criminal Code and Sections 4 and 24 (1) of the Police Act were not applicable nor available to the Appellant in this appeal and whether the lower court’s decision did not occasion a miscarriage of justice on the Appellant. Issue 4 is whether the lower court was right to have affirmed the conviction and death sentence of the Appellant when the prosecution failed to prove its case beyond reasonable doubt as required by law. The offence with which the Appellant is charged, convicted and sentenced to death is murder. In FRANK UWAGBOE V. THE STATE (2008) 12 NWLR (PART 1102) 621 this court held as follows, “It is settled law that for there to be a valid conviction of an accused person for the offence of murder under section 319 of the Criminal Code, the prosecution must establish or prove the following ingredients beyond reasonable doubt-

(a) That the deceased died

(b) That the death of the deceased resulted from the act of the accused person.

(c) That the act of the accused was intentional with knowledge that death was its probable consequence.

There is a plethora of case law on this subject matter. See however the following: NWACHUKWU V. THE STATE (2005) 4 LRCN 53 at 72; OGBA v. STATE (1992) 2 NWLR (PART 164) 198; BAKARE V. STATE (1987) 1 NWLR (PART 52) 579 at 582; ONAH v. STATE (1985) 3 NWLR (PART 12) 236; ABOGEDE v. STATE (1996) 5 NWLR (PART 448) 270 at 277.

The burden of proof as has been stated above is on the prosecution and it does not shift. This point was made clear by this court in ELIZABETH OGUNDIYAN v. STATE (1991) 3 NWLR (PART 181) 519; (1994) 4 SCNJ. 44; (1991) 3 SC 100 where Obaseki, JSC said as follows,

“In all criminal trials in this country and indeed in all common law jurisdictions, the burden or onus of proof is always on the prosecution. Except in very few statutory offences, this burden of proof can only be discharged by proving the guilt of the accused beyond reasonable doubt.”

The authorities on this point are indeed inexhaustive. See generally the following cases –

ALONGE V. INSPECTOR GENERAL OF POLICE (1959) 4 FSC 203; (1959) SCNLR 576; YONGO V. COMMISSIONER OF POLICE (1992) NWLR (PART 257) 36; (1992) 4 SCNJ, 113; THE STATE v. EMINE & ORS (1992) NWLR (PART 256) 658; ALOR v. STATE (1997) 4 NWLR (PART 501) ARUNA V. STATE (1990) 6 NWLR (PART 155) 125 at 137; PUBLIC PROSECUTOR V. YUVARED (1970) A.C. 913 at 921. In the present case there is no doubt that the person being conveyed in the red Nissan car driven by PW 2 Boniface Ozumba or Boniface Ozuaba, one Christian Owerreoma died. There is abundant evidence to this including that of PW 5, Dr. Jonathan Nnawuihe Osuji, Senior Medical Officer in the Pathology Department of the Federal Medical Centre, Owerri who performed the post mortem examination on the body of Christian Owerreoma. His evidence at page 117 of the Records is that the Corpse of Innocent Owerreoma was identified to him by one Osita Owerreoma in the presence of the Investigating Police Officer. The first ingredient of the offence of murder would thus appear to have been satisfied. The 2nd ingredient is that the death of the deceased was caused by the act of the accused person in this case the Appellant. This aspect has been dealt with to some degree earlier in this write-up. The evidence of DW 4, DW 5, and DW 6 which were evidence of co-accused persons had been viewed upon by the trial court to convict and sentence the Appellant to death which conviction and sentence had been confirmed by the lower court. We have seen how in OSARODION OKORO V. THE STATE (supra) this court, relying on its earlier decision in UKUT & ORS V. THE STATE (supra) stressed the need for caution in dealing with the evidence of co-accused persons who, though not accomplices and whose evidence would not require corroboration could have their own purpose to serve.

In OKORO’s case (supra) this court discharged and acquitted the Appellant on the uncorroborated evidence of the 6th & 7th accused persons who were charged together with the Appellant with the murder of one Monday Mozea. In OKORO (supra), Karibi Whyte, JSC, had this to say, “In DPP V. KILBOURNE (1973) 57 Cr. App. R. 381, the general principle that accomplices cannot corroborate each other was accepted.” (Underlining mine for emphasis.)

Something must now be said about the investigation or lack of same carried out in this case and the standard of prosecution. Appellant had said in his statement to the police that he did not expend the ammunition given to him on the day of the incident and returned same intact. In his statement to the police under caution on the 5th September, 2002 lines 3 – 5 at page 40 of the Record, the Appellant Desmond Ononuju said as follows, “I signed AK 47 with 20 rounds of L. ammunition and returned it completely.” In another statement to the police on the 13th September, 2002 (last six lines) at page 41 of the Records, Appellant further elaborated on this same point of handover of rifle and ammunition in these words, “The AK rifle I collected with twenty (20) rounds of live ammunition was returned after my twenty four (24) hours duty without any complaint. This is all. The entire rifle used at the checking point was signed from the armory by Sgt. Jude Onyedu and was returned to armory through him.” This is a very serious statement which if proved to be correct would certainly exonerate the Appellant from blame and how was it handled by the team of prosecutors PW3 Assistant Superintendent of Police Nathaniel Onobi said he investigated the case of murder in which the Appellant and others are standing trial in this case. His evidence is contained at pages 97 – 111 of the Records. His evidence in court that is germane to this point of armament is reproduced from pages 108 – 109 of the Records as follows, “At the Mgbidi police Station I checked from the armory section to find out the Calibre of arms and ammunition the 2nd accused Sunday Uwadiegwu and one Sgt. Kingsley were issued with. I discovered that the 2nd accused was issued with a Lar Riffle with 20 rounds of ammunition. Inspector Sunday Uwadiegwu (deceased) was issued with one Barreta Pistol with 6 rounds of ammunition and Sgt. Kingsley Ohiengbomu was issued with AK 47 riffle with 20 rounds of ammunition. I observed that late Inspector Sunday Uwadiegwu expended one ammunition. I collected the arms and registered them at the Zonal C.I.D. Umuahia. This is the Lar riffle which was issued to the 2nd accused.”

In lines 23 – 28 at page 109 of the Records, PW 3 continued to say as follows, “My investigation took me to Mgbidi Road Block mounted by the mobilemen to check the state of arms. The mobilemen were 3rd Accused (Appellant in this appeal), 4th Accused, 5th Accused and 6th Accused. I discovered that the mobilemen had no system of identifying the handing over and taking over of arms.”

(underlining mine for emphasis)

A proper and thorough investigation would have found out what caliber of arms and ammunition that were issued out to not just the 2nd accused Sunday Uwadiegwu (now deceased) and Sgt. Kingsley. A proper and more thorough investigation would have found out not just that Inspector Sunday Uwadiegwu expended one ammunition but also the number of ammunition if any, expended by each of the accused persons. No mention was made of the Appellant having expended any ammunition. The stand of the Appellant is that he did not expend any of the 20 (twenty) rounds of ammunition issued out to him. Strangely not even in the cross examination of the Appellant at pages 136 – 138, was this issue of arms and ammunition raised. Balanced against the evidence of the prosecution, the Appellant would appear to me to have successfully proved that he did not expend any part of the ammunition comprising 20 rounds supplied to him and returned same and the AK 47 gun supplied to him intact. Appellant named one Sgt. Jude Onyedu as the Officer from whom the entire riffles used at the check point was received and most probably returned. Neither Sgt. Jude Onyedu nor any other officer detailed in this regard was called to testify in this case.

At page 102 of the Records, Assistant Superintendent of Police Nathaniel Ononobi who investigated this case of murder and who testified as PW 3 tendered in court two statements made to the police by the 3rd accused person who is the Appellant in this case. Those statements of the Appellant which are dated 15th August, 2002 and 22nd August, 2002 were admitted by the trial court as exhibits “G” and “G1” respectively. The said exhibits “G” and “G1” do not contain the fact disclosed by the Appellant that he signed for and collected an AK 47 gun with 20 rounds of ammunition. As earlier stated Appellant made further statements to the police on the 5th September, 2002 and 13th September, 2002 contained at pages 40 and 41 of the records. These two statements contain the information that the Appellant signed for and received an AK 47 gun with 20 rounds of ammunition which arm and ammunition were returned intact. Curiously these two statements made by the Appellant as 3rd accused person on the 5th September, 2002 and 13th September, 2002 were not tendered in court by ASP Nathaniel Ononobi. Those two statements made to the police by the Appellant as 3rd accused were available. Why were such vital documents not tendered in court and what is the effect in law of this kind of suppression of evidence Section 167 of the Evidence Act 2011 states as follows:-

“The court may presume the existence of any fact which it deems likely to have happened regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case and in particular the court may presume that:

(d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.”

In OBIANWUNA OGBUANYINYA & ORS V. OBI OKUDO & ORS (1990) 7 SC (PART 1) 66 this court per Karibi-Whyte, JSC held as follows:-

“the court is free having regard to the common course of natural events, human conduct, public and private business to presume the existence of any fact which it seems likely to have happened in their relation to the facts of a particular case. The court is not obliged to draw the inference although it generally does. But it seems to me that the court will draw the inference where there is no evidence to the contrary.”

In IGNATIUS ANYANWU & ORS V. ALOYSIUS UZOWUAKA & ORS (2009) 13 NWLR (PART 1159) 445 this court also held that.

“It is settled law that the court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts.”

See also HIGH GRADE MARITIME SERVICES LTD V. FIRST BANK LTD (1991) 1 NWLR (PART 167) 290 at 308; R V. IREGBU (1938) 4 WACA 32. What inference would this court be expected to draw from a situation in which of the four statements made to the police by an accused person, the latter two which are more informative and detailed and which have the potential of settling an issue once and for all are suppressed from being tendered just because their contents are detrimental to the prosecution while only the earlier statements are tendered. PW 3 knew he did a shoddy job as far as that area of his investigation was concerned and had he tendered the Appellant’s statements made on the 5th September, 2002 and 13th September, 2002 they would have been detrimental to the prosecution’s case. The none tendering of these latter statements of the Appellant have created some doubt in my mind about the guilt of the Appellant.

Another aspect of the investigation of this matter which appears to have been slovenly and which agitates my mind is that the red Nissan car in which the deceased was travelling with PW2 was not tendered. On this aspect of the investigation, PW3 ASP. Nathaniel Ononobi said as follows at page 99 of the Records, “I invited a photographer who took five snapshots of the vehicle. After processing the photograph he gave me the copies … I registered the vehicle as an exhibit but later released it on bond to PW2 after the investigation of ownership as I established that he was the owner.” Going through the whole gamut of the proceedings in the Records, there isn’t the slightest indication that the vehicle itself or any of the photographs given by the photographer to PW 3 was tendered. This is a very crucial and important aspect of investigation which the police have failed to carry out. I would for example imagine that the five snapshots taken by the photographer would cover different positions of the car and ascertain where bullet shots hit the car. Available evidence is that the car was riddled with bullets but there is also the evidence of PW 3, the investigating police officer that after registering the car as an exhibit he handed it back to PW2 having ascertained that he was the true owner. If it was so riddled with bullets could it continue to be of any functional use to PW2 At page 11 lines 17 – 18 of the Records, PW 2, Boniface Ozuaba said as follows, “One of the bullet (sic) that punctured my tyre car …” This shows that some of the bullet shots punctured PW2’s red Nissan car. Could the intention of whoever shot at the vehicle have been to immobilize it and not to kill the occupants It is curious that not even one of the snapshots of the car taken by the photographer was tendered. The positioning of the bullet holes on the car might well have been useful in ascertaining the intention of whoever shot at the car – was the intention to kill or cause grievous harm or was the intention simply to stop the vehicle from moving What was the state of mind of whoever shot at the car The mental aspect or mens rea is very important in establishing the guilt or innocence of accused persons in a charge of murder as in other offences except offences of strict liability where the mens rea is dispensed with. It is even more difficult to accept the notion that those who shot at the car had the same common intention. Nevertheless there is no doubt that the deceased died from gunshot wounds from police firing on the 15th August, 2002 along Orlu road junction by Mgbidi in Orlu Judicial Division. Available evidence is that the occupants of the red Nissan car PW 2 Boniface Ozumba who was driving the car and the deceased Christian Owerreoma were not armed and never shot at the policemen throughout the onslaught unleashed on their car. The supposition was that they were thieves. Statutory defences under Sections 25, 261 and 271 of the Criminal Code and Sections 4 and 24 (1) of the Police Act certainly cannot avail policemen who shoot at an unarmed thief. Available evidence is that aside from being unarmed, they were not robbers. Evidence of PW 2 and an independent witness are to the effect both sets of policemen fired at the speeding red Nissan car driven by PW 2. Autopsy report of PW 5 Dr. Jonathan Nnawuihe Osuji in its simplest terms is that death of the deceased was “consistent with a bullet from a gun.” Who fired the lethal shot Owing to poor investigation by the police, this has not been easy to ascertain. I entertain some measure of doubt that it was the Appellant. Again this has been due to poor investigation by the police and poor prosecution of this case. As said earlier there is no doubt that the police at the checkpoint fired at and killed the deceased. Some of the policemen at the checkpoint on the day of the incident have been tried and freed. Who gets convicted The dailies are littered with gory details of extra judicial killings by trigger happy policemen on our roads especially at checkpoints. A trigger happy police force is not a good police force. This should be food for thought to the Police High Command. There is the dire need for the training and re-training of the Nigeria Police Force if it is to take its place among the civilized police forces in the world. For now that is not the case. I grieve for the deceased whose life has been so brutally cut short. In a murder case such as this, there is the legal aphorism observed in all common law jurisdictions that it is better for ten guilty men to be set free than for one innocent man to be sent to the gallows. There are lapses here and there which make it unsafe to convict. I prefer to err on the part of caution and allow the appeal. The Appeal is accordingly allowed. The judgment of the lower court delivered on the 24th March, 2011 affirming the judgment of the High Court is set aside and the Appellant is hereby discharged and acquitted.

SC.298/2011