Friday Aiguobarueghian & Anor. V. State (2004) LLJR-SC

Friday Aiguobarueghian & Anor. V. State (2004)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The 1st and 2nd appellants were the 1st and 2nd of three persons jointly arraigned before the High Court of the Benin Judicial Division of Edo State holden at Benin City (per Joan Aiwerioghene, J.) on an information of murder punishable under section 319(1) of the Criminal Code, Cap. 48,Vol. 11, Laws of the defunct Bendel State of Nigeria, 1976. At the end of the case for the prosecution wherein seven witnesses in all were called, the 1st and 2nd appellants, after their respective defences, were both convicted of the lesser offence of manslaughter and were each sentenced to seven (7) years imprisonment.

Being dissatisfied with the said decision of the High Court, the appellants appealed to the Court of Appeal sitting in Benin City which dismissed their appeal and affirmed the decision of the High Court. They have both further appealed to this court upon a joint notice of appeal containing two grounds of appeal dated 26th day of August, 2002.

I will pause here and state the facts of the case briefly as follows:

The 1st and 2nd appellants were two of three persons accused of the murder of one Nathaniel Amu, second son of one Chief Alfred Amu whose first son, Augustine Amu now deceased owned a piggery where both 1st and 2nd appellants worked.

On the 7th day of March, 1989 Chief Alfred Amu, requested Mr. Doherty Sunny Osifo (PW 2), an agricultural expert and a Government employee, to go to his late son’s farm to assess its state with a view to advising on what steps he deemed expedient for the well being of the pigs on the farm. Nathaniel Amu, deceased following the agreement reached between his father and Mr. Osifo accompanied the latter to the piggery. Upon their arrival, they were subjected to a sudden attack by a mob resulting from the refusal by the 1st and 2nd appellants to open the farm gate of the piggery. As they were being beaten up, he (i.e. PW 2), said he ran away to seek for help. Upon his flight from the scene and after raising an alarm to the effect that 2nd PW was a thief, a crowd which had been attracted apprehended and beat him. The beating persisted until he was able to identify himself with the aid of his complimentary card he carried on him. It was next stated that the deceased lay there in a pool of blood outside the farm gate from where he was rushed first to the police station and later to the hospital. The deceased who was eventually said to have been discharged, developed a swollen body and subsequently died.

The 2nd appellant’s account in his defence was that he was not at the scene of the crime at all but was only attracted there by an alarm raised by people in the vicinity following the presence of thieves in the neighbourhood of the piggery.

A notice of appeal brought at the instance of the 1st appellant by his counsel dated and filed on 18th October, 2002 containing five grounds to supercede the earlier one filed at the conclusion of the trial, was adopted and a copy thereof served on learned counsel for the 2nd appellant.

Before the hearing of the appeal, learned counsel for 2nd appellant brought a motion for leave to appeal, extension of time to appeal, leave to raise fresh issues and to regularize the brief of argument. The prayer not being opposed by learned counsel for the 1st appellant and C. U. Ozua Esq. of the Office of the Director of Public Prosecution, Edo State, was accordingly granted as prayed.

The 2 issues submitted as arising for our determination by the learned counsel for the 1st appellant reads:

1. Whether the Court of Appeal was correct in holding that the acts of the 1st appellant caused the death of the deceased.

On behalf of the 2nd appellant, the issue which calls for determination is:

2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the 2nd appellant in view of the evidence led at the trial court and the defence of alibi raised by the 2nd appellant.

The respondent for his part, adopted these two issues formulated by the appellants.

Arguing first issue 1, learned counsel for him submitted how the issue emanates and encompasses all the grounds of appeal – all of which it is argued, are directed against the finding of the Court of Appeal (hereinafter in the rest of this judgment referred to as the court below): The cases of State v. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576; (2001) 13 WRN 1 and Omogodo v. State (1981) 5 SC 5, were called in aid. It is thereafter, contended that evidence established that the deceased did not die immediately after the attack but died three months later. A critical review of the medical evidence especially that given by PW 5 and PW 6, it is argued, becomes imperative, adding that DW 6 it was who first testified that:

“On examination he was found to have multiple bruises all over the body. The left eye was swollen; there was infection of blood in the white part of the left eye. There was bleeding from the nose. Both knees had abrasion (sic) as well as the skull.”

The witness went on to say that –

“When discharged the patient was in a relatively good condition. Good enough to be discharged.”

Continuing, the witness said:

“When he was discharged he was not fit to go home. 1 discharged him into the care of the Opthamologist. He was fit enough for discharging as far as my own treatment was concerned. The Opthamologist (sic) wanted to treat the patient in his own hospital, which is why i discharged him into his care.”

PW 5; Dr. Alexander Idehen, as the doctor into whose care the deceased was discharged and/or transferred, testified that:

“I examined him and found the right eye was normal but the left (L) eye was very painful, red and the cornea was oedematus and smaller. The anterior chamber was filled with blood. That particular eye had no function at all. He was taken to the theatre same day to wash out the blood in the anterior chamber. During that procedure we found out that the lens of the eye was dislocated. He stayed in the hospital until 31st March, 1989 when he was discharged. That was all.”

The inference to be drawn from the evidence of this witness (i.e PW5), learned counsel submitted, is that the left eye which had the remaining injury from the attack, was successfully treated by PW5. From the foregoing, it is submitted, this was the end of the chain of causation attributed to the 1st appellant, adding that the evidence was given by medical experts who testified on behalf of the prosecution and who treated the deceased in his life time.

Our attention was next adverted to this Court’s decision in Uguru v. The State (2002) 9 NWLR (Pt. 771) 90; (2002) 25 WRN 118 where the deceased died four days after the attack and after receiving treatment from two separate hospitals. There, this court held (per Uwaifo, J.S.C.) at page 25 as follows:

“The deceased was treated in two hospitals following his encounter with the appellant and died four days after. There was therefore, an actus novus interveniens, which must be accounted for by the prosecution. To be able to do this, there must be evidence of the type of attention and treatment given by each hospital. In the absence of that, there is likely to be a break in the chain of causation.”

It is then contended how in the case in hand, the deceased was treated and discharged by two hospitals and subsequently took ill and was admitted to another hospital (UBTH) but no evidence of the nature of ailment and treatment was given of where the deceased died. It is then contended that the court below in dealing with this issue relied heavily on the evidence of PW3 and PW4 – the father and brother of the deceased respectively. It is further argued that the evidence of PW3 and PW4 who were the principal complainants and relatives of the deceased must be treated with caution.

Additionally, it is maintained, PW3 and PW4 were not medical experts and their evidence cannot be preferred to the evidence of medical experts who treated the deceased. After adverting our attention to the testimonies of PW3 and PW4 on the swollen tummy and legs of the deceased necessitating his being taken to Azua hospital and then the UBTH for treatment respectively until he died on 29th June, 1989, it is submitted that there is no medical evidence in the printed records that confirms that the swollen tummy and legs were as a result of the incident involving the 1st appellant. It is in addition submitted that even though the prosecution owed the duty to prove that the swollen legs and tummy were caused by the incident and were a continued manifestation of the injuries suffered by the deceased, the prosecution led absolutely no medical evidence of that condition, thus failing to discharge the onus in respect of the criminal ingredient of the offence. The case of Ahmed v. State (2001) 18 NWLR (Pt. 746) 622, (2002) 3 WRN 1 at 26 was cited in support of the proposition.

Any doubt raised as to whether or not the swollen tummy and legs were occasioned by the incident, it is further urged, ought to be resolved in favour of the 1st appellant. The other critical evidence to which our attention was adverted is that emanating from PW1, Dr. Suleman Abu who conducted a postmortem examination on the deceased. This witness testifying when led in examination-in-chief said, inter alia:

“Dissection revealed fractures of right side 5, 6 and 7 and both lungs were crushed by dense adhesions. Detailed examination revealed the fractured ends of right rib. 6 were inside a cavity of cysts of the liver and this contained chocolate coloured materials. Histological examination of these sections revealed chronic and active inflammatory cells in the cyst cavity.”

Continuing, the witness further deposed:

“In my opinion, I gave the cause of death as a cyst in the liver and faulty change in the liver. … A long duration of injury to the ribs and penetrating into the liver could induced the formation of the cyst cavity. The injuries to the liver and the ribs could have been caused by a heavy blow from a blunt object to the right side of the chest.”

Under cross-examination he stated thus:

“UBTH suggestion was a provisional diagnosis of liver cirrhosis … They were querring liver cirrhosis of the liver. Cirrhosis is scarification of the liver cells … cirrhosis does not lead to faulty liver, faulty liver leads to cirrhosis … Abression (sic) of the head has nothing to do with faulty liver. A Catarrh nose bridge cannot cause any bruise of the liver. The man died of liver abscess of faulty change. No cirrhosis.”

It is further contended on behalf of 1st appellant as follows:

1. That the evidence of PW1 does not confirm and/or support the evidence of PW3 and PW4. Nor, it is further argued, does the evidence of PW1 make any reference to swollen tummy and legs, thus no nexus can be inferred therefrom.
2. That it is his submission that neither PW5 nor PW6 testified that the incident had occasioned any liver abscess and/or faulty or fatty change of liver.
3. That the inference that can reasonably be drawn from the medical evidence in the printed records is that PW 6 treated the deceased satisfactorily and handed him over to PW5 to treat the injury to the eye. That PW5 treated him satisfactorily and discharged him and that the deceased subsequently developed and died of liver problems.

From the foregoing, learned counsel for the 1st appellant submitted, the prosecution had failed to show by medical evidence any casual link between the injuries treated by PW5 and PW6 and the ultimate cause of death to wit:

“Liver problems vis a vis the broken ribs both culminating in contradictory evidence.”

In the absence of such evidence in the printed records, it is argued, the court below erred when it held that:

“The effect of appellant’s attack on Nathaniel of 7/3/89 lingered on continuously until he died on 26/6/89.”

I am therefore, inclined to the view expressed by the learned counsel for the 1st appellant that there is no certainty as to the actual cause of the death of the deceased. This is because the deceased was admitted, treated and died at the UBTH and medical certificate as to the cause of death was issued. This fact was admitted by both PW 1 and PW4. According to PW 1, UBTH put the cause of death as “Liver Cirrhosis”. In his (PW1’s) testimony there was no “liver cirrhosis” but that the cause of death was “liver abscess of faulty change”.

In the light of the foregoing, I agree with the submission of learned counsel for the 1st appellant that the divergence of opinion between the death certificate issued by UBTH and the testimony of PW1, (Dr. Abu) leads me to arrive at the firm view that this court is duty bound to resolve the ambiguity thus created in favour of 1st appellant. See Valentine Adie v. State (1980) 1 NLR 323; (1980) ANLR 39; see also Adio v. State (1979) 12 NSCC 51. This court has held in appeals to it that where there is ambiguity, it ought to be resolved in favour of the accused. See Onotaire v. Onokpasa (1984) 12 SC 19 at 88 and Ebba v. Ogodo (1984) 1 SCNLR 372; (1984) 4 SC 84 at 93 – 103. I agree with learned counsel for the 1st appellant when he conceded that a medical certificate as to cause of death is not always required in cases where death occurred instantly. Put in another way, it is an acceptable principle of law in homicide cases that where the cause of death is obvious, medical evidence ceases to be of practical necessity. See Enewoh v. State (1989) 5 NWLR (Pt. 119) 98. Ditto where the deceased died almost immediately from the voluntary act of the accused. However, where as in the instant case death occurred three (3) months later and the medical evidence as to cause of death and responsibility of the 1st appellant is uncertain and doubtful, then a medical certificate as to the actual cause of death becomes a necessity and failure to produce same would be fatal to the prosecution’s case. See (1) Bande v. State (1972) ANLR 811; (2) Uguru v. State (supra).

The doubt as to the actual cause of death as highlighted in the judgment of the trial court may be summarised hereunder as follows:

“Dr. Asuen says that an X-ray was carried out but revealed nothing. He did not say what part of the patient was X-rayed.

Dr. Abu on the same eye … because of fibrous growth covering the whole area. Again nobody asked the Doctor how this could have been caused whether E naturally or as a result of injury.”

As can be deciphered from his evidence wherein he said:

“On the issue of previous treatment of the deceased for inflammation of the liver, I am unable to find any such evidence.”

The learned counsel to the 1st appellant has respectfully submitted that the court below erred in affirming the decision of the trial court which shifted the burden of proving the cause of the cysts on his client. I am in complete agreement with this submission since at page 53, lines 1-5 of the record the trial court held as follows:

“As to the cause of death itself, this was given as the cyst of the liver… The cysts is another matter. The cyst and their cause have been quietly passed over by the defence.”

For this reason, I agree with learned counsel for the 1st appellant’s submission that the court below was duty bound to uphold the well established principle that the onus of proving the cause of death rests squarely on the prosecution not the defence. See the following decided cases by this court of:

1. Iko v. State (2001) 14 NWLR (Pt. 732) 221; (2001) 35 WRN 1 at 40.
2. Lori v. State (1980) 8 – 11 SC 81.
3. Ameh v. State (1978) 6 -7 SC 27.

I agree with the submission of the learned counsel to 1st appellant that the evidence as to the treatment and ultimate death of the deceased as well as the medical certificate of death issued by UBTH was withheld by the prosecution. This withheld evidence from UBTH would have provided crucial clues and answers on the issue of whether the injuries lingered on until the deceased’s death whether or not new ailments intervened. This evidence was available to the prosecution but it withheld it leaving the court below to speculate and reach conclusion on the issue without supportive conclusive evidence. I am therefore in agreement with 1st appellant’s submission that the absence of the crucial medical evidence from UBTH and failure to tender the medical certificate of death raise serious doubts as to the cause of death, which ought to be resolved in favour of the 1st appellant. See section 149(d) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.

In the light of the foregoing, my answer to this issue is rendered in the negative. Hence, I resolve it in favour of the 1st appellant. A fortiori, I have no hesitation in resolving the issue in 1st appellant’s favour and the conviction and sentence passed on him be and are hereby quashed. The 1st appellant is accordingly discharged and acquitted.

Coming to 2nd appellant’s appeal, I am satisfied that all I have said in respect of the 1st appel1ant equally apply to the 2nd appellant as they both stood trial together for the same offence of murder, later reduced to manslaughter. Be that as it may, since the story of 2nd appellant both in his extra-judicial statement and his testimony in court is that he was not at the scene of the crime but that he was only attracted by the alarm raised by people around as to the presence of thieves in the neighbourhood, I wish once more on pain of repetition, to set down the sole issue proffered and which is germane to the determination of his (2nd appellant’s) appeal as follows:

“Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the 2nd appellant in view of the evidence led at the trial court and the defence of alibi raised by the 2nd appellant.”

The 2nd appellant in his very short evidence said succinctly that he was not at the scene of crime but was attracted there after the deceased had already been beaten by an alarm raised that thieves were in the neighbourhood. The evidence of the 2nd appellant runs thus:

“When I returned from the farm, I heard an alarm. At that time, there were a lot of thieves worrying that area so every body used to come out when there was an alarm. When I ran there with many of the street people getting there it was our piggery farm. I saw Friday, 1st accused, the day guard. I asked him what happened and he said some thieves came to the piggery farm. Then I saw Lugard the 3rd accused. I gave him N2 to go and call the manager of the farm, Gabriel Ika.”

This piece of evidence, it has been argued, is supported by the evidence of 1st appellant himself wherein he stated:

“I remember 6th March, 1989. I was at my work at the piggery farm. Around 8.30 in the morning I saw two men came in. They told me to open the gate. I said I did not know the man before. He then jumped through the fence and untie the gate. He then started shouting “Thief”. This raised an alarm in the street by an Hausa living in the street there … 2nd accused then came also and asked me about what happened. I told him a thief came into the farm. He looked for the attendant to give him money to call the manager to come.”

The story set out above, it is submitted, is consistent with the statements purportedly made by both appellants to the Police. Relevant extracts from the statements made to the Police by the appellants had our attention drawn to them to buttress this argument.

In concluding this statement he made to the Police at pages 6162 of the record of appeal 2nd appellant had this to say:

” … before I came to the scene Nathaniel was sitting down he has (sic) injury on his face. I did not join Aigoubamege in beating Nathaniel Amu.”

This statement, the 2nd appellant purportedly made to the Police, it is pertinent to point out, was made immediately he was arrested for the offence of murder and it was corroborated by the statement of the 1st appellant. The defence of alibi raised therein was not at all investigated. A visit to the house of the 2nd appellant and an interview with the neighbours to establish or discount the plea of alibi would have confirmed or rebutted same. Absolutely, no effort was made to locate and question the so-called Hausa man who raised the alarm with a view to ascertaining from him whether and when if at all he raised the alarm or as to whether the 2nd appellant was already at the scene of the incident or whether he got there in response to the alarm after the deceased had already been beaten up. In her judgment at the trial court, only a brief allusion was made to the defence of alibi raised by the 2nd appellant. The learned trial Judge went on to hold as follows:

” … the 2nd accused said that he was not there at all and arrived on the scene after it was all over. He was coming from his farm and heard the alarm. He had no hand in anything.”

In 2nd appellant’s defence for which he called no witnesses, his statement and oral evidence to the charge of murder against him is that of alibi. The defence of alibi, as it were, implies that the accused person was elsewhere at the time when the offence charged was alleged to have been committed in a particular place. See Ikemson & Ors v. The State (1989) 3 NWLR (Pt. 110) 455 at 459. In his testimony before the trial Judge, he claimed that on 7/3/89 he went to work though not to his farm but that when he returned home he heard an alarm and he ran to the piggery where he saw 1st appellant who intimated him that thieves came to the piggery. He gave N2 to one Lugard to go and call the manager of the farm one Gabriel Oka but that before Lugard arrived Gabriel had come to the farm and they were all taken to Ugbo Police Station. As the alibi was not investigated it cannot, in my view, be asserted that from the totality of the evidence adduced by the prosecution at the trial that it is clear that there is a strong, positive and direct evidence linking the 2nd appellant with the commission of the offence.

In law, where there is direct evidence linking an accused with the commission of the offence he can safely be convicted for the commission of the said offence. Not so in the instant case where the defence of alibi raised was not investigated. It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the court which falsified the alibi. See Ortese Yanor & Anor. v. The State (1965) NMLR 337 at 347; Nwosisi v. The State (1976) 6 SC 109 and Akpuenya v. The State (1976) 11 SC 269.

Where an accused raised a defence that his alibi was not investigated as in the instant case, he can still be convicted if there is strong and credible evidence before the court which falsified the alibi vide; Yanor & Anor. v. The State (supra) and Joseph Okosun & 2 Ors. v. A.-G., Bendel State (1985) 3 NWLR (Pt. 12) 283. It is a well-established principle that an alibi means that the accused was somewhere other than where the prosecution alleges he was at the time of the commission of the offence. See Gachi & Ors. v. The State (1965) NMLR 333 and Joseph Okosun & 2 Ors. v. A.-G., Bendel State (1985) 3 NWLR (Pt.12) 283. Indeed, it is not for an accused person to prove his alibi; rather the onus is on the prosecution to disprove the alibi.See Nwabueze v. The State (1988) 4 NWLR (Pt.86) 16.

Once there is the slightest defence of alibi, the plea must be investigated. Failure of the prosecution therefore, to investigate the alibi raised in this case is fatal to the prosecution’s case.

From the foregoing, I am satisfied that the treatment of the defence of alibi and the value placed on 2nd appellants’ extra-judicial statement by the court below is erroneous. Firstly, the learned Justices of the court below misapprehended the purport of his (2nd appellant’s) statement to the Police in exhibit C.

What was actually stated by 2nd appellant in clear terms is:

“On the 7/3/89 when I closed from night duty, I went to (the) my farm to work. I came back from the farm at about 10.am. As I was in my house I heard alarm from an Hausa man who is security guard for one Mr. Okwuegbe. I ran out towards the piggery farm.”

The lower court misapprehended the statement of the 2nd appellant to be to the effect that he went to the piggery where he worked at about 10.00am,thirty minutes before the shout of “thief, thief” and that this implied that he was present when the deceased was beaten up and probably participated in the beating. This interpretation indeed does violence to the clear terms of the statement where the 2nd appellant stated that he was on night duty at the piggery and that when they closed he went to his own farm to work; not the piggery from where he had already closed. Furthermore, he came back home from his farm at about 10a.m and was in his house nearby when he heard the alarm.

The learned trial Judge understood the purport of the 2nd appellant’s statement to the Police (exhibit C) and his testimony in court when he stated that:

“The 2nd accused said that he was not there at all and arrived on the scene after it was all over, he was coming from his farm and heard the alarm.”

The court below relied on this misapprehension of 2nd appellant’s extra-judicial statement in coming to the conclusion that he participated in the crime. Clearly, this conclusion was based on a misapprehension, which in turn has led to an obvious miscarriage of justice.

The lower court found support for the affirmation of the conviction of the 2nd appellant by alluding to the denial of the appellants of the making of their extra-judicial statements exhibits and as a result of which both statements and evidence given in their defence were held unreliable thereby paving the way for sole reliance on the evidence of PW2 to convict the appellants.

It is for this reason that I agree with the 2nd appellant’s submissions that the court below in doing this fell into grave error. What had been raised by the appellants in relation to the statements is non-est factum. It is not farfetched therefore that 1st appellant stated that:

“I made a statement to the Police. I see exhibit A. It is not the statement I made to the Police.” 2nd appellant for his part stated thus:

“that statement was not made by me.”

Although it is conceded that the issue of non-est factum was not raised by counsel when the statements were sought to be tendered, the plea of non-est factum was nonetheless validly raised. Had objections been raised to the admissibility of the statements on the basis of non-est factum, they would still have been admitted in evidence as non-est factum does not affect admissibility. The cases of R. v. Igwe (1960) SCNLR 158; Ikpasa v. A.-G., Bendel State (1981) 9 SC 7 and Ogunye v. State (1999) 5 NWLR (Pt. 604) 548 at 570. 572 and 576 were called in aid.

Therefore raising the objection that the statements were not made by the appellants at the stage of tendering same would have been superfluous as the statements would all the same have been admitted. This court has held in Nwanghomu v. State (1994) 2 NWLR (Pt. 327) 380 at 399 – 400 F-A that the plea non-est factum in relation to a confessional statement is a matter of fact to be determined by the Judge at the conclusion of the trial. Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd appellant therefore that as counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a mater of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement. As I had cause to observe in Nwanghomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:

“… Now the voluntary statement of the appellant which was confessional in nature was received in the proceedings giving rise to this appeal as exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101. The appellant for his defence in rendering his testimony in court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.”

In view of the appropriate attack of the appellants of the statement (exhibits A and C) as not being their deeds, it was incumbent on the courts below to have made a finding on whether the said statements were actually made by the appellants before holding that the statements were retracted or before putting them into any use in convicting the appellants.

It is noteworthy to stress that the terms “retraction” and “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for, where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non est factum in relation to a confessional statement, what he has done is not a retraction but a denial of the making of the statement.

No finding was made by the two courts below on the issue of fact as to whether the appellant made the statements. The application therefore of the rule in Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, two cases that have been overruled, was therefore prejudicial to the appellants whose conviction ought not to be allowed to stand. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383. What it boils down to is that had the testimony of the 2nd appellant and his extra-judicial statement (exhibit C) not been treated as unreliable, the 2nd appellant would have been absolved of the offence of murder of the deceased based on his defence of alibi which was not investigated. Furthermore, the evidence of PW2 who himself was a victim of the same attack, ought not to have been viewed with as much confidence as the trial court and the court below did, it being the evidence of a victim.

It is for these reasons I have given above that the answer I proffer to issue No.2 is in the negative.

For all I have been saying, I also allow the 2nd appellant’s appeal, set aside the decisions of the two courts below and discharge and acquit each of the appellants.

SC.294/2002