Ijeoma Anyasodor V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This appeal emanates from the judgment of the Court of Appeal, Owerri division (hereinafter referred to as “the lower Court or Court below”) delivered on 5th August, 2015 which heard an appeal against the judgment of High Court of Justice, Imo State (Trial Court) delivered on 28th September, 2011 and affirmed the judgment of that trial Court.
FACTS GIVING RISE TO THE APPEAL
The deceased Chibuike Nlemagwu was having amorous relationship with the appellant which lasted for three years before his death. The deceased had earlier promised to marry the appellant but the appellant later discovered that the deceased was already married with some children. She thereby became disenchanted and started to hatch a plan to kill him. On 27th March, 2009 the deceased, while driving on his way coming from his village called the appellant and arranged to have a date with her and she thereby saw that overture as an opportunity to execute her plan to eliminate the deceased. The unsuspecting deceased went and picked the appellant to Cradle Hotel Owerri, where both of them spent the night together.
Unknown to the deceased, the appellant had earlier planned with two hired-killers to execute her plan by positioning them where she would alight from the deceased’s car. Then, while on their way and on reaching the appointed place where she positioned the two hired killers and without any suspicion she asked the deceased to slow down in order to drop her. The two gun men/hired killers suddenly emerged and pounced on the deceased and shot him on his stomach and escaped.
On hearing the sound of gun shots, the PW2 having been alerted by the sound of the gun shots, came out and saw the deceased bleeding and crying for help. PW2 saw the appellant at the scene trying to escape too, but he pleaded with her not to run away and she agreed to stay and she accompanied him (PW2) in conveying the deceased to the hospital. The deceased later died after six days while on admission in the hospital. Police investigation later revealed that the appellant had hand in the dastardly murder of the deceased but merely brought the story of kidnap allegation just to cover up her involvement in the murder. After concluding its investigations, the police arraigned the
accused/appellant before the trial court on a charge of murder, contrary to Section 319(1) of the Criminal Code Cap 30 Vol. II, Laws of Imo State of Nigeria. The appellant pleaded not guilty to the charge. At the trial the prosecution called three witnesses to prove its case against the accused/appellant while the appellant testified on his own behalf at the trial. In the end, the trial Court in its consideration of the evidence, found that the prosecution, (now respondent) had proved its case against the accused/appellant and convicted and sentenced her to death.
Dissatisfied with the judgment of the trial Court, the appellant unsuccessfully appealed to the Court below which had affirmed the conviction and sentence of the appellant to death by the trial Court. Still not satisfied with the judgment of the Court below, the appellant further appealed to this Court against the lower Court’s judgment.
In keeping with the rules and practice applicable in this Court, Briefs of Argument were prepared by learned counsel, filed and exchanged. The appellant herein, filed a brief of argument on 5th October, 2015 settled by one Emeka O. Nwagwu Esq. The
appellant’s learned counsel also filed an Appellant’s Reply Brief on the 24th June 2016 after being served with the respondent’s brief. In its response, the Respondent filed its Respondent’s Brief of argument on 24th March, 2016 which was deemed filed on 9/11/2016. In the appellant’s brief of argument, a sole issue was identified for the determination of this appeal which said lone issue simply reads, thus: –
“Whether the prosecution proved the case of murder, contrary to Section 319(1) of the Criminal Code beyond reasonable doubt against the appellant.”
But in its brief of argument, four issues for determination were formulated by the respondent, as set out hereunder: –
(A) Whether prosecution witnesses PW1, PW2 and PW3 respectively are tainted witnesses
(B) Whether the lower Court was right in relying on the evidence of PW3, the Police IPO in dividing its judgment (sic)
(C) Whether the prosecution by circumstantial evidence proved the case of murder beyond reasonable doubt against the appellant, contrary to Section 319(1) of the Criminal Code.
(D) Whether the Doctrine of last seen raised by the prosecution is applicable in this
SUBMISSIONS BY LEARNED COUNSEL ON ISSUES FOR DETERMINATION
The learned counsel to the appellant submitted that the feeble and the so called circumstantial evidence put forward by the prosecution did not meet legal proof and the value of evidence fell below the required standard. He submitted that PW1 & PW2 from their evidence and the extra judicial statements made in the trial, stand out as tainted witnesses who had common purpose to prosecute in the proceedings. He contended that the PW1 gave two versions of conflicting stories on how the investigation by PW3 was commenced. One version was that the police told her to go and bring the woman with her husband on the day of the incident who claimed to be his wife and that the police would not release the husband’s vehicle to her until she could establish that she is the real wife of the deceased.
The second version was that she wrote a petition to State CID for an investigation of the circumstances that led to his death since she was told that he was with a lady on the day of the incident. He argued that following from the above, the contradictory statement on oath which differs from the
extra judicial statement and the evidence of PW2, is that of a tainted witness whose joint mission was to incriminate the appellant and ensure that she was convicted and sentenced to death. He therefore submitted that a tainted witness is either an accomplice or a witness who has interest to defend or has a purpose to serve in a case in which he or she is called upon to give evidence as a witness. He argued further, that the evidence of PW1 and PW2 and their extra judicial statements reveal bias, hatred that these witnesses harboured against the appellant. He argued that the purported post humous discovery was too trivial to warrant PW3 to recommend that the appellant be charged for murder and that the PW3 did not properly investigate this matter but was in a premeditated mission to give weight to the prosecution’s case. He argued that the unsubstantiated finding of failure or promise of marriage in the mind of the trial Court, led to a miscarriage of justice and that the entire evidence of PW3 was hearsay as it was not the finding he made, pursuant to a proper investigation. He submitted that before a piece of evidence whether circumstantial or direct, can be
considered, it must be admissible and that no inference of guilt can be drawn from a purported circumstantial evidence which, as in the instant case, is inadmissible. He submitted that the evidence of PW3 contradicted the evidence of other prosecution witnesses and that the “doctrine of last seen” which the Court below relied upon, was inapplicable. He then urged the Court to resolve this issue in favour of the appellant and allow the appeal.
As I stated earlier, in response to the argument of the appellant, the respondent’s learned counsel formulated (4) four issues for determination.
His issue No.1 deals with whether the prosecution’s witnesses PW1, PW2 & PW3 are tainted witnesses.
On the contention that the prosecution witnesses are tainted, he submitted that whosoever wants to discredit or contradict a witness does that at the trial Court and not on appeal. See Okoro v. State (2012) 1 SC (pt.1) 54. He submitted that once a statement of an accused person is tendered and admitted without any objection, the content of the said statement is conceded by the accused person as the truth of the facts of what had happened and no
amount of retraction can vitiate the weight to be attached to it. On the alleged poor investigation, he submitted that PW3 never stated in his evidence that he concluded his investigation in 2 days and this was never made an issue before the trial Court. He argued that even if the investigation by PW3 was concluded in 2 days, there is no law that gives a time frame as to when investigation can be concluded.
On the alleged contradiction in the evidence of PW3 when compared with that of PW2, he argued that the side of the rib where the deceased was shot was never made an issue before the trial Court hence such issue cannot be raised at this stage to discredit PW3’s evidence. He argued further, that even if the issue of contradiction as to which side of the rib was shot can be raised at this stage, it was not a material contradiction that can endanger or affect the case of the respondent.
On the alleged contradiction of the evidence of PW1 & and PW3 on the release of vehicle of the deceased, he argued that PW3 corroborated the evidence of PW1 that the car was released to the family by SARS.
On the evidence of PW3 as to what he found out from
his investigation, the learned counsel submitted that the PW3 stated in his evidence that he found out that the deceased promised the appellant marriage but failed to fulfil his promise and that was borne out of evidence, contrary to the claim by the appellant’s counsel in his argument. He referred to paragraph 2, page 56 of the record. He then urged this Court to hold that any objection to such evidence at this stage, will be inconsequential and will not hold water. He argued that when prosecution tendered the statement of the appellant before the trial Court on 13/4/11 through PW3, there was no objection from the appellant or his counsel who were both in Court. On how the evidence and statement of the appellant respectively introduced PW2 and the relationship of such evidence to the evidence of the respondent, he referred to the evidence of appellant at page 57 of the record and submitted that the appellant having introduced Obinna (the PW2) as the person who came to aid of the deceased person made him a vital witness and his evidence was and still relevant. He also referred to another evidence of PW2 on how he gave account of how he repeatedly went to the
hospital to see the deceased (see page 40 of the record). He also referred to the evidence of PW2, where PW2 stated that investigations revealed that the purported kidnap report or story concocted by the appellant was simply an attempt to cover up her involvement in the crime of murder of the deceased which prompted the police to release the PW1 and PW2 and detained the appellant whose facts were not controverted.
On the non tendering of letters of demand of case file, and absence of MR. Gold of SARS, PW3 stated that he asked Mr. Gold to send the case file used in investigation at SARS and he was told by the said Mr. Gold, that there was no case file and that the family of the deceased had recovered the vehicle of the deceased which was the only exhibit, which said piece of evidence was not objected to. He submitted that every submission of the appellant on the respondent witnesses, especially PW3, in respect of not-tendering of any letter to SARS, cannot be countenanced at this stage as it is too late in the day for it to be raised. He submitted that if the entire stories of the respondent are put together, they agree especially since the statement of
the appellant was admitted by the Court without objection from the appellant.
Issue No.3 deals with whether the prosecution by circumstantial evidence had proved the case of murder beyond reasonable doubt against the accused person now appellant.
The learned counsel for the respondent submitted that the evidence of PW1 and PW2 at pages 23 to 27 and pages 38 to 40 of the record respectively, show that the deceased was shot and it was the said gunshot sound that attracted PW2 to run out of his house to the scene and to then later rush the deceased to the hospital in company of the appellant whom he (PW2) persuaded to follow him.
On the contention of the appellant that the appellant cannot be criminally responsible because the deceased death was not instantaneous, he responded and submitted that the effluxion of six days, will not exculpate the appellant from the case of death of the deceased. He quoted and cited Section 314 of the Criminal Code Act. He submitted further, that where death follows the injury inflicted on the deceased and the fact of the injury is relied upon without medical evidence as circumstantial evidence of the case of death,
the injury if so well described clearly with surrounding circumstances, amount to prima facie proof of the case of death.
On the act of the appellant, he submitted that the action of the appellant circumstantially showed that she had earlier planned the murder of the deceased. He submitted further, that the act of the appellant irresistibly show that not only was the appellant in the centre of the planning of the murder, but she also caused the actual execution to succeed and by Sections 2 (b) and 7 (d) of the Criminal Code Act, the appellant is criminally liable for the murder of the deceased and was rightly found guilty of same by the trial Court in its finding, which said finding was rightly affirmed by the Court below.
On the doctrine last seen, he submitted that this means that the law presumes that the person who last seen with the deceased, bears full responsibility of his death. He cited several decided authorities one of which includes NWAEZE V. THE STATE (1996) 2 SCNJ 47 at 61-62 or 2 NWLR (pt.428) 1. He also referred to the evidence of PW2 at page 39 of the record and submitted that the above piece of evidence shows that the appellant
was the only one last seen with the deceased but admitted that it was she that caused the deceased to stop at the scene where he was shot. He submitted finally, that from the scenario in this case, the only reasonable inference or conclusion to be drawn from it, is that the appellant arranged for the murder of the deceased by procuring the two men who executed same. He urged this Court to dismiss the appeal of the appellant in its entirety.
REPLY OF THE APPELLANT
I have carefully studied the Appellant’s Reply Brief which to my observation is replete with facts and issues that have already been canvassed in the appellant’s brief of argument. It is mere repetition and fine tuning of the arguments proffered in his main Brief of argument. It is therefore not worth being called a Reply brief, legally and properly so called, hence I unhesitatingly discountenance it for whatever it is worth.
It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the
Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.
This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: –
(a) Evidence of eye
witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged.
(b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him.
(c) Through circumstantial evidence.
See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (pt.734) 666; Ohunyon v. State (1996) 3 NWLR (pt.436) 264; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911; Igri v. The State (2010) 7 WRN 47; Ogba v. State (1992) 2 MLR (pt.222) 146.
In this instant case, there was no eye witness called by the prosecution to testify in the case of murder charge it framed against the accused/appellant. Also, there was no confessional statement of the accused tendered at the trial of the accused/appellant before the trial Court. The prosecution (now respondent), simply relied on circumstantial evidence to prove the case of murder against the appellant.
In order to prove the offence of murder against an accused person, the prosecution has the onus to establish beyond reasonable doubt, the following ingredients of the offence, namely: -<br< p=””
(i) That the death of a human being was caused
(ii) That it was caused by the act of the accused; and
(iii) That the act or acts was/were done with the intention that death was to be caused; or
(iv) The accused knew that death would be the probable consequence of his act or acts.
See Sunday Omini vs. The State (1999) 12 NWLR (pt.630) 68 or (1999) 9 SC 1 or (1999) LPELR 2638 SC.
The prosecution, as I state supra, relied heavily on circumstantial evidence in proof of its case which the learned trial judge in his judgment had stated thus: –
“In the light all that I stated, I hold that the prosecution (sic) have by circumstantial evidence proved the case against the accused person reasonable doubt (sic). I find the accused guilty as charged.”
As I stated supra, in this instant case, the prosecution (respondent) relied heavily on circumstantial evidence to prove its case against the appellant at the trial Court since there was no eye witness to the murder of the deceased. In the case of Taylor & 7 others Vs R 21 Cr App R 20 at page 21, Lord Lord Hewart, Lord Chief Justice of England described circumstantial evidence as
“It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving on proposition with the accuracy of mathematics.”
See alsoThe State v. Ogbubunjo (2001) 1 SCNJ 102; Udoebere v. The State (2001) 6 SCNJ 70. Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; Uwe Ideghi Esai and Others vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in
convicting an accused must also be incompatible with the innocence of the accused.
The learned counsel for the appellant described PW1 and PW2 as “tainted witnesses” and suggested that the trial Court should not have relied on their testimonies to convict the appellant. The law is trite that a ‘tainted witness’ is a witness who is either an accomplice or by the evidence he gives, whether as prosecution witness or for the defence, may and could be regarded as having some purpose to achieve or purpose of his own to serve. See FBN PLC vs. Nwankwocha (1998) 5 NWLR (pt.551) 610; Okoro v. State (1998) 4 NWLR (pt.584) 181; Nwosu vs. State (2006) 11 NWLR (pt. 992) 458.
The learned justices of the lower Court had in their judgment extensively recast the testimonies of PW1 and PW2 at the trial Court before they arrived at the conclusion set out hereunder at pages 276 and 277: –
“The trial judge who had the rare opportunity of watching their respective demeanour and hearing them testify in open Court ascribed probative value to their testimonies and the Learned Counsel for the Appellant highlighted any aspect of their evidence that has not highly betrayed
them as tainted witnesses notwithstanding the fact that the PW1 was the wife of the Deceased who was murdered in cold blood and PW2 Obinna Ucheghulam of Umunahu Uratta, Owerri North is even from the same community with the Appellant.
If the PW2 were to be biased, he should have been in favour of the Appellant who is his kinswoman. Accordingly, I shall discountenance the submissions of the Learned Counsel for the Appellant on the question of the PW1 and PW2 being tainted witnesses as he even conceded that the bias was not because of relationship but because they wanted to secure vendetta and conviction by all means which he has not substantiated. Accordingly, the evidence of the PW1 and PW2 were not tainted or replete with doubts, bias, partiality, abuses, jeers, sentiments, hatred, speculation and very suspicious hearsay, as purported by the learned Counsel for the Appellant. Rather their evidence were cogent, compelling, consistent and as shall be demonstrated anon, was corroborative of the evidence of the Appellant both extra-judicially and on oath, that the surrounding circumstances of the case by undersigned coincidence were/are capable of proving
with mathematical exactitude and led to the irresistible inference that the Appellant was not innocent of the murder of the Deceased as reasonably and unassailably inferred by the Learned trial judge in convicting the Appellant of murder.”
With the greatest respect to the learned Counsel for the Appellant, the authorities of Aje V. The State (2006) 2 FWLR at 3427 para E-F and Obidike V. The State (2001) 17 NWLR (pt.743) 601; were cited out of con as they are not applicable to the facts and circumstances of this case.
I am in entire agreement with the above observation of the lower Court which had rightly reflected the finding of the trial Court which held that the said witnesses were not tainted witnesses as the learned counsel for the appellant had described them or had taken them to be. The trial Court was therefore right in relying and acting on their testimonies.
On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give
evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.
There is no iota of doubt that from the testimonies of PWs 1, 2, and 3 that the deceased person died. Even though there was no medical report or autopsy certificate tendered at the trial by the prosecution, the evidence of the accused/appellant had also established the death of the deceased even from the surrounding circumstances of the case. Evidence also abound that the deceased died following the gun shots fired on him by the two gun men who were hired or employed to execute the dastardly act of murder of the deceased by the appellant herein.
Again, the learned counsel for
the appellant submitted that the trial Court was wrong in partly relying on the “Doctrine of Last Seen” in convicting the accused/appellant and the endorsement of the finding of the trial Court by the lower Court. The question is that “Does the doctrine of last seen” apply in this instant case. The doctrine, simply means that the law presumes that the person last seen with the deceased, bears full responsibility for his death, if it turns out that the person last seen with him is dead. See Godwin Nwakerendu & 3 Others (1973) 3 ECSLR (pt. II) 87; Nwaeze v. The State (1996) SCNJ 47 at 61/62.
In the present case there, had been adduced at the trial, credible evidence that the deceased was last in company of the appellant. The statement of the witnesses and that of the appellant had shown that the appellant was in Cradle Hotel Owerri, with the appellant where the two of them spent the night previous to the date he was shot by the gun men who orchestrated and hatched the plan to eliminate the deceased by the appellant. Those pieces of evidence were never controverted or contradicted. On the morning of the day the deceased was shot, the PW2 came out when he
heard the sound of the gunshots and saw the deceased in pains and the appellant tried to ran away until she was advised otherwise by him (PW2) whom the appellant accompanied, to take the deceased to the hospital for medical attention. The “Doctrine of Last Seen” is therefore applicable to the circumstance of the case as rightly applied by the trial Court and also rightly found/endorsed by the lower Court.
Also, the learned counsel alleged that there were contradictions in the testimonies of prosecution witnesses, for instance on the followings: –
(i) That PW1 stated she was in possession of the deceased car as opposed to when the appellant claimed otherwise.
(ii) That PW1 showed the sequence in how the deceased vehicle was released to her.
(iii) On the mode of arrest of the appellant as testified by PW3
I have closely considered the points which the appellant’s learned counsel cited as examples of contractions in the testimonies of the prosecution witnesses. I am not however convinced that those alleged contradictions even if, they might be called so, were not material contradictions as would affect the veracity of their
testimonies before the trial Court.
The law is trite, that in an appeal Court, it is not enough for an appellant to show that there were contradictions in the evidence of some of the prosecution witnesses, but it must be shown that the trial judge did not consider those contradictions. In this instant case it is glaring from the record, that the learned trial judge had meticulously pointed out and addressed each of the alleged contradictions and commented on them item by item as would leave no one in doubt as to their effect or position and even none of the alleged contradictions was material or had been shown to have occasioned miscarriage of justice.
It is settled law, as I said supra, that for contradiction to have any effect on the case of an accused person, it must be material, substantial and must relate unequivocally to the charge against the accused person. See State V. Abdulazeez (2008).
In this present case, the alleged contradictions were not material and substantial to the offence the appellant stood trial on at the trial Court. The lower Court had therefore rightly found that they had no effect on the trial. Moreover, some of the
alleged contradiction regarded as material by the appellant’s learned counsel were even not raised at the trial Court but only on appeal before the lower Court.
It is noted by me, that the lower Court in its judgment cited several attitudes or behaviour of the appellant which went a long way in making the trial Court to draw some inferences to convince it that there was strong circumstantial evidence establishing the guilt of the appellant with regard to the commission of the crime. Those pieces of evidence in my view had strengthened or buttressed the belief of the trial Court that the appellant was obviously culpable and had actually organised or planned the elimination of the deceased through the aid of the two gun men hired by her to murder him. I also have no slightest doubt in the finding of the lower Court on that. I hold that there was strong circumstantial evidence adduced by the prosecution in proof of the offence of murder against the appellant herein, and hold that he was rightly convicted by the trial Court on the proof of the murder charge made against her by the respondent which was established beyond reasonable doubt. The lower Court was
also right in affirming the judgment of the trial Court, convicting and sentencing the appellant to death.
In the result, it is my judgment that this appeal is devoid of any merit. It therefore fails and is accordingly dismissed by me. The judgment of the lower Court which had affirmed and endorsed the judgment of the trial Court convicting the appellant of the offence of murder, is hereby further affirmed by me. Appeal dismissed.