Isong Akpan Udoebre V The State (2001)
LAWGLOBAL HUB Lead Judgment Report
O. ACHIKE, JSC.
The three appellants were arraigned on a one count charge for murder at the High Court of Justice, Akwa Ibom State, presided over by Eka, J. At the close of evidence and addresses by counsel on both sides, the learned trial Judge, in a considered judgment, respectively convicted the appellants for murder and sentenced them to death, while he discharged and acquitted the 4th accused.
The appellants’ appeals to the Court of Appeal, Calabar Division were unanimously dismissed while the sentences of death passed on then were confirmed. Still dissatisfied, the appellants have appealed to this Court.
The facts of this case lie within a narrow compass and would be recapitulated hereunder. Sometime on 3rd April, 1990, at the Ekoi Ikot Nyoho village, two children aged between 8 and 9 years respectively, testified herein as PW1 and PW3 that while playing in their compound with other children, saw the 1st appellant in the company of seven other persons, pushing a wheel barrow containing a fresh headless human being towards the direction of the forest. The headless body had its dress on and intact. PW1 and PW3 ran inside their house and alerted their mother, PW2 who in turn ran out. On getting close to the said eight men, she saw the headless body in the wheel barrow and recongnised it as that of her brother, Ndarake Matthew Ndueso, now deceased.
She fainted but was able to run to the bush where she lay unconscious till the next morning. She testified that she saw eight persons, including the 4th accused person pushing the wheel barrow on that fateful day, 3/4/90.
All the appellants and the other accused persons in their evidence flatly denied the charge. It was common ground that there was no eye- witness to the murder who testified at the trial, consequently the convictions of the appellants were predicated solely on the evidence of PW1, PW2, PW3, including the testimonies of the two Investigating Police Officers, who respectively testified as PW4 and PW5.
The three appellants respectively filed their briefs of argument in which they identified Issues for Determination. The 1st appellant’s (Isong Akpan Udo Ebre), two issues run thus:
‘(a) Whether the appellant was properly connected with the commission of the offence of murder as to be found guilty and sentenced to death.
(b) Whether the circumstantial evidence before the Trial Court was of the quality of cogency and reliability required by law to ground a conviction for an offence of murder.’
On behalf of the 2nd appellant, three issues identified by his learned counsel run as follows:
‘(i) Whether it was safe to have confirmed the sentence passed on the appellants on the same identification and other evidence which discharged and acquitted the 4th accused at the trial.
(ii) Whether the defence of the appellant (alibi) was properly considered.
(iii) Whether the case against the appellants was proved beyond reasonable doubt on circumstantial evidence.’
Finally, 3rd appellant’s learned counsel, formulated two issues, running as follows:
‘(1) Whether the evidence, circumstantial or otherwise relied upon by the lower court was devoid of doubts as to be allowed to stand.
(2) What was the effect of Exhibit 6 which was expunged by the lower court?’
For the prosecution, the learned Senior State Counsel submits five issues for determination, which in his view, are comprehensive and sufficient to encompass the above three sets of issues for determination:
‘(1) Whether the failure to mention the name of the 1st Appellant by the PW2 to the Police at the earliest opportunity was fatal to the case of the prosecution in the face of other proven evidence.
(2) Whether the identification evidence which acquitted the 4th accused was the same with the evidence against the appellants.
(3) Whether the defence of alibi was properly raised by the appellants.
(4) Whether the circumstantial evidence against the Appellants was strong and compelling to amount to proof beyond reasonable doubt.
(5) Whether Exhibit ‘C’ expunged by the Court of Appeal in any way weakened the case against the 3rd Appellant.’
On close examination of all the issues for determination postulated by the parties and as they relate to each appellant’s appeal, on the one hand, and that of the prosecution, I think that the prosecution’s issues for determination are undoubtedly more comprehensive and sufficiently encompass the respective three sets of issues submitted by the appellants. I therefore prefer them for the purposes of considering the appeal, to the extent of the specific issues raised by each of the appellants.
Issue No.1
‘Whether the failure to mention the name of the 1st appellant by the PW2 to the Police at the earliest opportunity was fatal to the case of the prosecution in the face of other proven evidence.’
This issue was one of the complaints of 1st appellant. It may be recalled that when PW2 made herextra-judicial statement to the Police, Exhibit 1, the name of 1st appellant was not included as one of the people she saw pushing the wheel barrow containing the headless human body whereas when she testified in court she mentioned the name of 1st appellant and also vehemently insisted that she mentioned 4th appellant’s name in her statement, Exhibit 1 but was surprised that it was omitted in the said exhibit. The trial court also observed this discrepancy and dealt with it dispassionately, in my respectful view, during his evaluation of evidence. Strangely, while reviewing the evidence on appeal, Ekpe, JCA, erroneously, in his leading judgment, stated that PW2 in her thumb-printed extra-judicial statement had mentioned all the names of the persons that she saw on the road at the time of the incident and this included Effiong Udo Ebre, the 1st accused, herein 1st appellant.
(Chief Kola Babalola, learned counsel for the 1st appellant, submits that where an eye-witness, such as PW2, omits to mention at the earliest opportunity the names of persons she saw committing an offence, a trial court must be careful and wary in accepting her evidence given later which implicates the person charged, unless a satisfactory explanation is given; reliance is placed on Commissioner of Police v. Alao & Anor 1959 WNLR 55. In Counsel’s final address on this issue, he urges that this issue be resolved in favour of the appellant because the appellant was not properly identified with the commission of the offence of murder. The learned Senior State Counsel, C.J. Udoh, Esq., submits that despite the omission complained about, its effect is not fatal because PW1 and PW3 also testified that they recognised 1st appellant pushing the wheel barrow containing the headless body of the deceased. The testimony of the PW3 also showed that the 1st appellant was at the scene where they saw the headless body in the wheel barrow. Concluding, counsel submits that the authorities relied upon by the 1st appellant do not apply in the instant case.
I have given counsel’s submissions very close consideration. There is no doubt that the lower court was palpably in serious error when it took the view that PW2 mentioned 1st appellant in her extra-judicial statement. The time she was making the statement, indeed, was the earliest opportunity for her to recollect those things she saw, because at that stage, all the facts of the incident, within her knowledge, were still fresh in her mind. PW2 was unable to offer any explanation for that omission though she insisted that she mentioned the name of the 1st appellant in her thumb-impressed recorded statement to the Police but surprisingly, this was not recorded by the Investigating Police Officer. The truth of the matter was neither here nor there. Undoubtedly, that piece of evidence was vital in order to implicate the 1st appellant with the commission of the offence charged. In the absence of any explanation forthcoming from the prosecution, the learned trial judge declined, and rightly in my view, to speculate on this matter. Consequently, his Lordship discountenanced PW2’s evidence of identification of the 1st appellant. By this approach, the principle laid down in the earlier cases cited to the court and relied upon by learned 1st appellant’s counsel in this regard, especially Abudu v The State (supra), a decision of this Court, was strictly placed in focus and adhered to.
In any event, the identification of 1st appellant was also amply established by the evidence of PW1 and PW3. Thus, dealing with 1st appellant’s identification, the learned trial judge observed as follows:
‘Notwithstanding this, it is still open to the court to determine from the record, if there is other evidence linking the 1st accused with the crime charged. Like PW1,PW3 a boy of about 8 years, gave sworn evidence and was emphatic as to what he saw and those he knew. Even in cross examination he was indefatigable in his stand despite the legal dart thrown by three seasoned defence counsel. He maintained that he saw 8 people pushing a headless body in a wheel barrow. He recognised 5 of them whose names he gave among whom were the 4th accused persons. He also identified each of these accused persons by pointing at them and calling names.’
I am satisfied that in the absence of the discountenanced evidence of PW2 on the identification of 1st appellant as shown above, the testimonies of PW1 and PW3 provide sufficient evidence establishing the presence of the 1st appellant at the locus in quo and further establish 1st appellant’s participation in the commission of the offence charged. Accordingly, the authorities of Commissioner of Police v. Alao (supra) cannot avail the 1st appellant. Furthermore, it has not been urged on us that this excusable slip or error by the lower court (but not the trial court) was of such gravity and magnitude that it has occasioned or was such as would occasion a miscarriage of justice that would lead to a reversal of the judgment of the lower court; vide Olubode v. Salami (1985) 2 NWLR (Pt.7) 282.
In the circumstances, this issue must be resolved against the 1st appellant.
Issues Nos. 2 & 3
It is common ground that in each of the three appellants’ briefs, their learned counsel have strongly submitted that the same benefit of doubt accorded to the 4th accused should have been given to the three appellants since the evidence against the three appellants was the same as that against the 4th accused. Each also contends that the three appellants were jointly charged and tried, and that since the evidence against the 4th accused was closely interwoven with and inseparable from that against three appellant, then, since the court acquitted the 4th accused, the appellants ought also to be discharged and acquitted. The appellants relied on the Supreme Court decision of Abudu v. State (supra).
The learned Senior State Counsel for the respondent has urged us to discountenance the appellant’s submissions in this regard because the case of the 4th accused was manifestly different and distinct from the case of the three appellants. First, not only did the 4th accused timeously raise his defence of alibi, he went further to furnish adequate and detailed particulars surrounding the said alibi. Second, the two investigating Police Officers, PW4 and PW5, failed to investigate the information furnished by the 4th accused. Counsel further submits that in the circumstances it cannot be said that the evidence surrounding the case against the 4th accused was inextricably interwoven and inseparable with those of appellants that the benefit of his discharge, should, of necessity, be extended to the appellants.
To avoid unnecessary repetition, I propose to consider Issues Nos.2 and 3 together. First let us examine the defence of alibi raised by the 1st and 2nd appellants. The defence of alibi is popular and commonplace today in many criminal prosecutions. In essence, alibi, as a defence, simply put, seeks to establish that at all times material to the commission of the offence, the accused person was no where near the locus in quo and ordinarily, therefore, he could not be expected to be involved in the physical execution of the criminal offence alleged. Generally, the accused person raises the defence of alibi. However, where evidence placed before the court clearly demonstrates that the accused person seeks to rely on alibi, that defence cannot be denied to the accused person. Full consideration should be accorded to whatever plausible defence is relied upon by the defence as if it had been expressly pleaded or raised by the accused person. This is so because the court is obliged to give due consideration to a defence either raised by the accused person or arising casually or by the tenor of the evidence placed before the court once that evidence raises a reasonable doubt in the prosecution’s case.
Where the prosecution fails to investigate the defence or the court fails to examine or consider such defence and it is demonstrable that the failure would lead to a miscarriage of justice, then any order of conviction arising in the circumstance, would, on appeal, be quashed and substituted with an order of discharge and acquittal.
We must hasten to state quite clearly that the defence of alibi is not readily conceded with levity to the accused person seeing that when properly established it has the far- reaching finality of exculpating the accused person from complete criminal responsibility. To take advantage of this defence, the accused person must give a detailed particularisation of his whereabouts on the crucial day of the offence which will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any, transpired at the said time and place(s). Obviously, such comprehensive information furnished by the accused person must, unquestionably, be capable of investigation by the Police should they wish to do so. A fair-minded tribunal would have no other option than to exercise its discretion of doubt in favour of the accused person. Furthermore, such defence must be timeously brought to the attention of the Police by the accused person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused person to raise the defence while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. Such a ploy cannot avail the accused. See Gachi v. The State (1965) N.M.L.R. 333.
Conversely, where the defence of alibi consists of vague accounts which are simply placed before the court as mere make-beliefs of plea of that defence, and which are completely devoid of material facts worthy of investigation, the Police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation, the court would have nothing before it to consider by way of alibi.
For example, where the accused person in his extra-judicial statement stated that either that ‘he was not in town on that day’ or that ‘he travelled to a neighbouring town or village – Awka’, and nothing more, no reasonable person would think that a serious plea of alibi has been made out. In other words, a general defence of alibi without sufficient facts to warrant an investigation is clearly porous and vague and cannot avail an accused person.
The 2nd appellant in his extra-judicial statement put across a defence of alibi and claimed that he went to Akampa on the day and further said that he could not remember the day of the killing, having accompanied his sister to Akampa for farming purpose. Furthermore, he said that he did not know about the death of the deceased. Be it noted that, for unknown reasons, this extra-judicial statement was not tendered in evidence. Of course, the legal consequence of failure to tender this statement in evidence is that the content of that document is no evidence and merits no further consideration in this judgment. Testifying on his behalf at his trial, after a complete denial of participating in the commission of the offence, the 2nd appellant deposed tersely:
‘I was not in my village on 3/4/90 and I did not take part in the crime’
The above excerpt of 2nd appellant’s evidence was undoubtedly erected as a defence of alibi. It is very porous and evasive. If in fact 2nd appellant was not in his village on the date of the incident it behoved him to state in clear terms where he was thereby establishing good basis for investigation by the Police, if they so wish. But on the contrary, the need for any meaningful investigation of the alibi was foreclosed by the 2nd appellant’s freak. It is the law that there is no duty on the accused to prove or establish his alibi once he has furnished particulars of his whereabouts lucidly to the Police; see Okosi v. The State (1989) 1 SC.L.R.N. 29, 41 and Yanor v. The State (1965) 1 All N.L.R 193. In fact, once the accused has reasonably and sufficiently furnished information of his whereabouts on the date of the offence alleged, the burden shifts on the prosecution to disprove the defence of alibi sought to be raised by the accused.
As I had said earlier, the 2nd appellant’s defence of alibi was feebly canvassed. I am satisfied that having regard to what I have said about the short-comings of the circumstances of this case, the defence of alibi cannot avail the 2nd appellant.
The learned Senior State Counsel ex cautela abundantia had submitted in his brief that the defence of alibi could not and ought not avail the 3rd appellant who said that he was at Calabar on the fateful day of the offence charged. It is worth noting that the 3rd appellant never canvassed this issue in his brief. That defence though raised by him at the lower court was not however pursued herein. It was, therefore, in my view, unnecessary and in fact did not deserve any further comment from the respondent. Indeed, since the 3rd appellant did not raise that issue, respondent’s reaction in respect of his alibi was baseless and must be discountenanced.
From the above, it is quite clear that although 4th accused was tried together with the three appellants, nevertheless the evidence of alibi that led to the discharge and acquittal of 4th accused was distinctly peculiar to the 4th accused’s case and could not, by any stretch of imagination, be said to be closely interwoven and inseparable from those of the three appellants. For example, the content of 4th accused’s narration of his whereabouts on that fateful day has no correspondence whatsoever with those of any of the three appellants. Perhaps, what is fair to be stated categorically is that the four persons were tried together, but the evidence led in respect of the defence of each of the appellants was unquestionably different from that led with regard to the 4th accused. With such divergence between the case of the 4th accused and those of the three appellants it is erroneous and misconceived for the appellants to have relied on the Supreme Court decision in Abudu v. State (supra) because the facts and circumstances of that case are incomparable with those of the instant case. Accordingly, this authority cannot avail the appellants.
Therefore, without any equivocation, my firm conclusion with regard to issues Nos.2 and 3 is that they are each separately resolved against 2nd and 3rd appellants.
Issue No.4
The question raised under this issue is whether the circumstantial evidence relied on by the trial and the appellate courts respectively was sufficiently cogent to support the convictions of the appellants in the sense that the prosecution could be said to have proved their case beyond reasonable doubt.
For the 1st appellant, it was submitted by his learned counsel that there was no cogent and compelling circumstantial evidence to lead to the irresistible conclusion that 1st appellant was either the murderer or one of the murderers of the deceased. It is counsel’s submission that the evidence of PW2 which was found unsatisfactory and led to the discharge and acquittal of 4th accused, and accordingly, the evidence of the very same witness ought not to be relied upon for founding any circumstantial evidence to ground appellant’s conviction.
For the 2nd appellant, it was simply submitted that the case against him had not been proved beyond reasonable doubt on circumstantial evidence, because there remained many loopholes and gaps in the prosecution’s case.
Finally, on behalf of the third appellant, his learned counsel similarly submitted that since the evidence of PW1, PW2 and PW3 were at variance with regard to the number of the accused persons that they saw conveying the headless person in a wheel barrow on the day of the incident, their divergent evidence ought not to be relied on as satisfactory circumstantial evidence in holding that the prosecution have discharged their heavy burden of proof against the appellant. Counsel further submitted that PW1, PW2 and PW3 generally contradicted themselves in their evidence and were therefore not credible witnesses whose evidence could be relied on as basis for the conviction of the appellant, more so as it is predicated on circumstantial evidence.
In his reply on behalf of the respondent, the learned Senior State Counsel submitted that the prosecution tendered a high quality circumstantial evidence to sustain the conviction of the appellants. Barring the evidence of PW2 which was under heavy fire that led to the discharge and acquittal of the 4th accused, nevertheless, part of the evidence of that witness was accepted by the learned trial judge particularly with regard to the scene where the wheel barrow was being pushed by the appellants. He submitted that the fact that the learned trial judge disbelieved part of that witness’s evidence did not render the whole of his evidence unacceptable; reliance was place on the authority of Ekanem v. The King (1950)13 WACA 108. Counsel further contended that even if the evidence of PW2 was rejected completely there remained the evidence of PW1 and PW3 which was enough to secure the convictions of the appellants. Finally, counsel submitted that on the whole the prosecution witnesses produced sufficient circumstantial evidence that was strong and irresistible to prove the guilt of the appellants beyond reasonable doubt. He urged that we should so hold.
It is common ground in this serious trial for murder that there was no direct eye-witness account of the heinous act but the learned trial judge reached his verdict relying on circumstantial evidence. It was a curious case where the prosecution pressed for conviction for murder of the three appellants of the headless deceased victim. No doubt, an accused person can be convicted for murder where every thing points to the accused as the murderer but so long as the evidence in support of the conviction is not only cogent, complete and unequivocal but compellingly lead to the conclusion that the accused and no one else is the murderer. Thus in R v. Onufrejezyk (1955) 1 Q.B. 388; C.r App. R 1, it was held that the fact of death is provable by circumstantial evidence even though neither the body or any trace of the body has been found. Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their very nature is capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude. One hastens to add, as cautioned by Lord Normand, delivering the Address of the Judicial Committee of the Privy Council (which also included Lords Oaksey and Tucker) in the appeal of R v. Tepper (1952) AC 480 from the Supreme Court of British Guiana:
‘Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another……It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’
SC. 59/2000