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Njoku V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant herein was the defendant among twelve others, in an offence of murder of one Christopher Nwankegu (deceased) charged before the High Court of Ebonyi State.

The appellant was charged by one count information dated the June 4th, 2010, for beating and burning of the deceased by angry mob at Okposi, Umuoghara in the Abakaku Judicial Division, on the 3rd of April 2009. He pleaded not guilty.

The respondent in proof of its case called five (5) witnesses to wit PW1 (Andrew Nwankwegu brother of the deceased person) PW2 (CPL Uko Emmanuel), PW3 (Asp Madago Kerkite), PW4 (SGT Kure Army) and PW5 (DR. Festuse Iyare) after the close of the Prosecution, the defence opened its case and defendant testified as DW1 and DW2, DW3 respectively. The appellant was the DW4/7th Accused person.

The trial Judge found the appellant guilty as charged and sentenced him to death by hanging. Dissatisfied with the decision of the trial Court he appealed to the lower Court on the December 23rd, 2014. The lower Court dismissed the appeal. Dissatisfied with the decision of the lower Court, the Appellant Appeal to this Honorable Court.

He submitted the following issues for determination by this Court;

Whether the improper consideration of the appellant’s defence of alibi and lack of identification parade to fix the Appellant to the murder of the deceased before the lower Court affirmed the conviction of the appellant has not led to miscarriage of justice.
Whether the lower Court was right in affirming that the respondent proved beyond reasonable doubt the offence of murder against the appellant so as to secure his conviction?

The respondent who did not submit any issues for determination, rather he relied on the issues submitted by the appellant.

Argument of counsel

Issue one

Whether the improper consideration of the appellant’s defence of alibi and lack of identification parade to fix the appellant to the murder of the deceased before the lower Court affirmed the conviction of the appellant has not led to miscarriage of justice.

The appellant’s counsel submitted that it is trite that the defence of alibi has to be raised at the earliest opportunity available to the accused with particulars. He maintained

that there is no duty for the accused person to prove his defense of alibi. That the burden falls on the prosecution to investigate the defense of alibi as stated by the defendant. He citedSani v State [2019] 13 NWLR (pt. 1690) 551 and Dage v State [2019] 12 NWLR (Pt.1689) 204, at 218-219, para. D-C.

He affirmed that the appellant raised his defence of alibi, at the earliest opportunity which would, preferably, be in his extra judicial statement. Learned Counsel also submitted that, the appellant raised the issue of alibi during the investigative stage but this was not investigated by the police. See Alhaji Musa. Sani v The State (2015) LPELR – 24818 (SC) at p.31 paras. D-F.

He further canvassed the view that, the fact that the appellant was seen at the event or at the scene of the crime does not mean he participated. That in the matter at hand there is no clear evidence of a definite and precise time the deceased was killed and the appellant gave evidence that he left the scene at 6pm to carry his wife home.

He also maintained that the crime took place after the appellant left the scene. He also raised the issue of identity, by stating that

different people in the crowd had their different agenda. Is to pin act on of person without no concrete evidence but only the basis that he was at the scene should not suffice as evidence. See Adamu v State (2019) 8 NWLR (pt 1675) 478 at p.510 paras, C-D, and Blessing Bout v The State (2017) LPELR (SC) at pp 9-10, paras C-E.

He stated that in an event where the identity of an accused person is in issue, the trial Court is under a duty to carefully examine the evidence to detect whether there is any weakness capable of diminishing the strength and veracity of the evidence given by the witnesses for prosecution. See Bout v The State (Supra).

He pointed out the following facts from the evidence of the PW1. He stated that PW1 arrived at the scene at 5pm where a large crowd of many people which might be around ‘1000 or 3000’ present.

PW1 went on to state that, he parked at a distance and approached the crowd beating the deceased and that the appellant beat up the deceased person. He also pointed out that the PW1 has never met the appellant before nor did he meet the appellant again at any point after the incident before the arraignment in Court.

He noted that the PW1, stated that the deceased person was burnt in his car and at the time of arrival, and he saw police men tear gassing the crowd and shooting to disperse them. However, he asked how the PW1 was able to see the appellant in the midst of chaos.

He also submitted that the DW9, led evidence and stated that when he passed at 5.30pm, he saw a car on fire and the fire was so heavy he could not ascertain if there was anyone inside car. He restated that this Court should bear in mind that the appellant left the scene by 5pm to drop his wife, that is, 30 mins before the incident happened.

He raised five points worth consideration by this Court:

– How was the PW1 able to see the appellant as one of the accused people(s), in a smoked cover atmosphere and large amount of people struggling to see the confusion.

– Secondly, the fact that the PW1 left for the village at 4.35 and arrived at 5pm to watch his brother being killed at 5pm. Which means that the PW1 saw the appellant for less than 30 mins.

– Thirdly, the lighting condition could have been bright or dark and no definitive evidence was led in respect of this.

– Fourthly, PW1 at no point stated definitively how close he was to the assailants and rather stated, that he parked some distance and approached not being able to identify the man being beaten at the first instance but he made out the car and did not at any point identify himself for fear of being lynched.

– Finally, PW1 stated under cross examination that he had never met or seen the Appellant before the incident and never identified or saw him after the incident, that he only saw the Appellant after incident which was in Court.

He submitted that from the above points, the PW1 did not satisfy the requirements as to the identification of the appellant as a party to the commission of the crime which was fatal to the strength or veracity of his evidence. He also pointed out that, the PW4 has failed to prove the identity beyond reasonable doubt as stated in Blessing Bout v State (supra). He maintained that PW4 mentioned in his cross examination that he observed from a distance, which brings up an element of doubt he was able point out persons involved from a crowd.

He equally stated that it is an established principle that an identification parade

becomes crucial to the success of proving the ingredients of offence of murder. This is especially so, where there is a view that there were large number of people at this particularly scene. See Alufohai v The State (2014) LPELR 24215, (SC) PP-24-25, Para and Okiemute v The State (2016) LPELR 40639 (SC) (PP 12- 13 para-E-A).

Learned Counsel submitted that the lower Court in its judgment appreciated the importance of identification parade, but misinterpreted the law as regard identification parade. He also emphasised that the lower Court erred in his its above findings when it held that identification parade has been disguised from defence of alibi in the sense that the former does not deal with whether or not the accused person was at the scene but rather whether he was identified as having committed or participated in the commission of the crime. See NDUKWE v THE STATE [2009] LPELR 1979 (SC) Pp 58-59, para. E-B) and IFEDAYO v THE STATE [2017] LPELR -44374 (SC) at Pp 21-27, paras. F-B.

He also pointed out that at no point did the respondent tender any other evidence that the appellant committed the offence charged, and at no point did the PW1 or PW2 give

any information prior to the trial about the appellant. Neither did they proffer any distinct description of the appellant before or during trial but merely stated that they saw him. The appellant in fact led evidence that at the time of his invitation to the police station, the officers and PW3 were unable to identify him and his boss had to corroborate that he was indeed the AMAECHI NJOKU. This evidence was at no point rebutted or demolished and it goes to reaffirm the fact.

He further maintained that, although the appellant was at the crime scene, he was not identified beyond reasonable doubt as having acted, participated or omitted to, participated or omitted to do act which led to the death of the deceased person. However, in the light of the above submissions, the appellant counsel urged this Court to resolve this issue in favour of the appellant and discharge and acquit the appellant of the offence of murder.

RESPONDENTS CONTENTION

The respondent submitted that, in this case, the Prosecution, pursuant to Section 126(a) of the Evidence Act, 2011, employed the means of direct evidence in proof of its case. He maintained that the Prosecution

called PW1 and PW2 who severally testified in the trial Court as eye -witness and or vital witness.

He argued that to prove the case of murder against the appellant, the prosecution was never unmindful of the age long settled principle on the three essential ingredients of the offence of murder which are as following:

I. That the deceased had died,

II. That the act of the accused person caused the death of the deceased person and

III. That the act of the accused was done with the intention to cause death or grievous bodily harm, or that the accused knew that death or grievous bodily harm was probable consequence. See UWAGBOE V THE STATE (2008) 12 NWLR (pt.102) 621 SC, EDOHO V THE STATE (2010) 14 NWLR (2010) 14 NWLR (PT. 1214) 651 SC and IGABELE V THE STATE (SUPRA) 100.

He further contended that the PW1, in his evidence, laid that he saw the accused person and seven others as part of the mob that gruesomely murdered the deceased, this notion was seconded by the second eyewitness PW2 in his evidence of oath. He submitted that the appellant did not dispute the fact that he was at the scene of the crime, although he appeared to be inconsistent

with his evidence. He restated that in the appellant extra judicial statement, that the appellant admitted that he was at the scene of the crime.

He also maintained that the appellant not only admitted to be at the scene but also participated in beating the deceased person. He submitted that the evidence of PW1 and PW2 on record inclusive of the evidence of the appellant as replicated above fixed, the appellant to the scene of the crime and equally underscored the role he played, that is. His act led to the death of deceased.

He also claimed that the appellant had a common intention to attack the deceased person and the part he played to execute this act was not necessary. He also submitted that the fixture of the Appellant to the scene by the PW1, PW2 and DW4 himself (the appellant) debunked his purported plea of alibi, which said alibi, the particulars were not even made available to the investigators at the earliest opportunity. See OCHEMAJE V THE STATE (2008) 6-7 SC (pt.11) 1.

He further submitted that the defence of alibi raised for the first time from the witness box is a “hoax” and a “huge joke” that does not constitute evidence upon which any

Court can act. See BENSON UKWUNNEYI and ANOR V THE STATE (1989) 4 NWLR (pt. 114) 131 AT 144. He submitted that the issue of identification parade was not necessary in the instant case because identification parade becomes necessary only where the eyewitnesses are not able to perform their function of clearly seeing the accused person in the act of committing the offence.

He contended that identification parade will be necessary if from the evidence of eyewitnesses, there are some doubts on the mind of such witnesses as to whether it was the accused person who committed the offence. He maintained that where there is unequivocal and consistent evidence on the part of the witnesses that they saw the accused person committing the offence, an identification parade becomes unnecessary. However, once the eye lenses of witnesses record the identity of an accused person positively and accurately committing an offence, then reasonable doubt is thereby excluded and identification parade becomes superfluous and so unnecessary. See ADEYEMI V THE STATE (2011) 5 NWLR (pt. 1239) P.1, ONUOHA V THE STATE (1998) 5 NWLR (pt. 548) 118; BARUWA V THE STATE (1996) 7 NWLR (pt.460) 302;

ANYANWU V THE STATE (1986) 5 NWLR (Pt. 43) 612 and OKAFOR v THE STATE (2016) 4 NWLR (pt 969) 1.

He maintained that PW1 and PW2 eyes were clear. They clearly saw the appellant commit the act and there is no evidence that the angry mob dispersed as a result of tear gas. He further submitted that the evidence of PW1 and PW2 in the regard that the appellant was part of the mob which murdered the deceased should not be dismissed. Also, that all the arguments on identification parade is misplaced and the Court should dismiss it and resolve this issue in favor of the respondent.

Resolution of issue one

My Lords, as it is now well known, alibi is a Latin word, it is a combination of two words “alias” and “ibi” or “ubi’ meaning “other” and “there” or “where” respectively. In English usage, according the Black’s Law Dictionary, the word alibi is defined as “elsewhere”. See AZEEZ V STATE (2008) ALL FWLR (PT.424) 1423 at 1447 and MOHAMMED V THE STATE (2015) ALL FWLR (pt.782) 1658.

Thus, where an appellant or accused person raises the defence of alibi, he is in turn saying that he was at another place when the offence was committed and could not possibly

to have committed the offence. It is the impossibility of a person being present at two different places at the same time that gives the defense its efficacy provided it is established. SeeCHUKWUMA EZEKWE v. THE STATE SCER [2018] SC.73/2013, (2018) LPELR 44392 SC, (2018) 3-4 SC (pt 1) P. 1442; Adekunle v State [1989] 5 NWLR (Pt. 123) 505, 513; Patrick Njovens and Ors v The State [1973] 1 NWLR (sic) 331. See also Obakpolo v. State [1991] 1 SCNJ 9; Attah v State [2010] Vol. 3 (pt. iv) MJSC 139; Njovens v. The State [1973] 5 SC 17; Afolalu v. State [2010] All FWLR (pt.538) 812; Michael Hausa v. The State [1994] 6 NWLR (Pt.350) 281; Peter v. The State [1997] 3 NWLR (Pt.496) 625; Omotola and Ors v. The State (2009) 7 NWLR (pt.1139) 148.

In this instant case, the appellant indicated that he left the crime scene thirty minutes before the incident took place to drop his wife at home. He also maintained that he raised this issue at the earliest opportunity as stipulated by law and this was not investigated by the prosecution.

It is a settled principle that the defence or plea of alibi must not only be raised but must be promptly and properly raised by the

suspect to warrant any consideration; that is; it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time offence was committed. See Emenegor v State [2010] ALL FWLR (pt. 511) 884.

In the instant case, the record of appeal, pages 256, the appellant raised his defence of alibi at the dock. In fact, it must be part of his statement to the police if he were to make any statement; the reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity.

The duty of Court to consider the alibi depends on how properly it was raised. If it was raised properly, the Court is under a duty to consider it. It is noteworthy that, the defence of alibi is not meant to be used as ploy to send the police on a wide goose chase or divert attention of the police. Although it is the duty of the Prosecution to check on or investigate a statement of alibi by the accused person and disprove it, there is no inflexible or invariable way of doing this.

If the Prosecution succeeds in fixing the

appellant at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby logically and physical demolished and that would be enough to render such plea ineffective as a defence. See Archibong v State [2006] ALL FWLR (pt 323) 1747 at 1785, Sunday v The State (2011) ALL FWLR (pt. 568) 922; UCHE V THE STATE [2015] ALL FWLR (pt.796) 431.

In other words, where the piece of evidence at the disposal of the Prosecution, either real or circumstantial or both, are so compelling that the accused person could not have been elsewhere than at the scene of the incident, in this circumstance, there is no need for the prosecution to carry on a goose chase investigation, in order to discharge the burden of plea of alibi. See OLAIYA V THE STATE [2010] ALL FWLR (pt.514)

Above all where the defence of alibi consists of vague accounts which are simply placed before the Courts as make-believe of plea of that defence which are completely devoid of material facts worthy of investigation there would be no need for investigation. See Saka v The State {2006) All FWLR (pt.335) 148,163.

In the instant, there is no clear evidence to prove the defence of alibi

raised by the Appellant apart from not being raised at the appropriate time. From the record of appeal, it is clear that the PW1 to PW5 fixed the accused person at the crime scene by adducing sufficient acceptable evidence, pages 245 of the record of appeal. It is also noteworthy that the defence of alibi consists of vague, for example, the appellant argued that, he was merely present at the crime scene and he left the crime scene by 5pm 30 minutes before the incident happened.

However, according pages 8, 9, 201-206, Exhibit H, at pages 403 and Exhibit I at pages 405 of the record, the appellant submitted that he closed work at 4pm and followed the crowd to the police station. From the above statement, it is crystal clear that there is evidence of vagueness in his defense of alibi.

The appellant’s counsel also raised the issue of identification parade. He stated that there is doubt as to whether the witness’s ability in the midst of the chaos and crowd which were up “1000-3000”. He also argued that PW1 has never seen the appellant after the incident until the day of trial and there is no way he would be able to recognise him.

However, my Lords, I agree with the reasoning of the lower Court when it held that:

Identification parade is unnecessary where witnesses claim to have seen a person known to him prior to the incident. There is a difference between I have known him before and I saw him and ‘I saw one of them’ I can recognize him if I see him’. The former is a case of recognition which is distinct from identification and it does not require an identification parade.

However, in this case the failure of the police and the prosecution to conduct an identification parade cannot prove fatal because the appellant as I said earlier, was at scene of the crime. There cannot possibly be a case of mistaken identity when the appellant admitted to have visited the crime albeit on a peace mission.

In other words, identification evidence is evidence tending to show that a person charged with an offence is the same as the person, who committed the offence. The major dispute in this issue is the fact that he has never met the appellant before, neither does he know the appellant.

However, the law is clear that, in a situation where the witnesses did not know the accused/

appellant before the incident, identification parade becomes necessary and it should be conducted. See Bozin v State [1986] 2 QLRN 69. It is also worth bearing in mind that there are exceptions to this rule. For instance, in the case ofIbrahim v State [1991] 5 SCNJ 129, this Court held that:

Where identification parade will not be necessary;

I. where by his confession, an accused person identifies himself as the offender,

II. where the offender is apprehended at the scene of crime or pursued immediately thereafter and apprehended

III. Where the offender is well known to the witness before the incident.

IV. Where the circumstances of the case have sufficiently and irresistibly married the offender to the crime and the crime scene.

V. Where a clear case of alibi has been put forward by the suspect.

VI. Where there are clear and uncontracting eye witnesses account and identification of the person who committed the offence.

On page 256 (lines 4-8) of the record of appeal, in the appellant’s cross -examination, he stated:

It is not true that the DPO met the deceased person bleeding at the place, the crowd uncuffing me,

were including beating him. I don’t know if the DPO and his men answered a distress call at the time, we were beating the deceased close Ezza North Development Centre and rescued the deceased.

However, applying the principle stated above that, “where by his confession, an accused person identifies himself as the offender”, the above statement, it is unnecessary for the police to conduct an identification parade where the accused/appellant has confessed to doing the act. In the light of the above fact, the inevitable conclusion is to hold that the Prosecution has proved its case beyond reasonable doubt that the appellant was part of the event which killed the deceased person. That being said, I resolve this issue in favour the Respondent and uphold the lower Court decision regarding this issue.

Issue Two

Whether the lower Court was right in affirming that the respondent proved beyond reasonable doubt the offence of murder against the appellant so as to secure his conviction?

In all criminal cases, the onus of providing that any person committed a crime or wrongful act squarely lies on the Prosecution generally, except of course in

some special cases or circumstances that do not apply to the instant case. The burden of proof does not shift and the standard of proof is proof beyond reasonable doubt. See OSENI V THE STATE [2012] LPELR – 7833 (SC) AT PP. 40-42, PARAS D-A AND SUNDAY AMALA V THE STATE [2004] LPELR 453 (SC) AT P. 13, PARAS D-E.

However, it was contented that, the respondent having alleged the offence of murder against the appellant, it was its duty to prove the guilt of the Appellant beyond reasonable doubt.

He maintained that the law is clear on the ingredients to prove the offence of murder:

– Whether the person alleged to have been killed is dead

– The cause of death and

– Whether any act of the accused person is cause of death

IDIOK v STATE [2008] LPELR -1423 (SC) at pp 8-9 para. A. He went on to submit that the ingredients were never an issue if the appellant was dead and the consultant pathologist who led oral evidence that the deceased person died as a result of injury due to multiple fractures to the skull.

He further submitted that, no one at the village where the incident happened ever said they knew the man being beaten and burnt. Only PW1

came forward that it was his brother. His claim was never corroborated by Titus Nwankegu who allegedly witnessed the crime. Neither did the police nor the PW5 got a confirmation by picture evidence, Car ownership, means of identification or otherwise to ascertain beyond reasonable doubt these claims.

For the purpose he reproduced the testimonies of PW1 and PW2 led in oral evidence:

– PW1 stated that, after beating him, they put him in car, poured fuel on him and the car and set fire on both the car and him, which was later burnt to ashes.

PW2; there was a palm wine tapper who got out a knife and cut the man in a pool of blood while the angry mob poured fuel and threw the man inside the burning vehicle.

He also submitted that the issue as to the date raised by the Appellant at the lower Court is material to the case as the cause of death and overall state of the corpse is an important element to the offence charged and the reliance placed on the medical report (Exhibit B) in conjunction with surrounding circumstances is against the weight of evidence.

Another issue that was contended by the appellant counsel is whether the mere presence of

the appellant at the scene of the crime is enough to prove that he committed the offence. He also submitted that, the evidence proffered the PW1 and PW2 placed the Appellant at the scene of the crime. Thus, it becomes necessary to critically examine their evidence against those given by other witnesses as well as DW4, the appellant, to ascertain whether or not his actions at the scene of the crime caused the death of the deceased person.

He maintained there was no evidence that the Appellant was ever arrested on incontrovertible evidence that he was part of the mob who murdered the deceased. He supported his submission by stating that mere presence at the scene of the crime does not, as a matter of law, render the person so present guilt of the crime. There must be a clear evidence that prior to or at the time of commission of the offence, the person present did something to facilitate the commission of the offence. See ORJI V THE STATE (2008) LPELR 2767 (SC) p.25 paras b-d, SALAWU V THE STATE (2014) LPELR -24218 (SC) at P.13, paras A-C.

He further argued that the failure to assist a victim or act of being an onlooker in a mob action is not a crime until

it is proven unequivocally that the onlooker either expressly or impliedly carried out some acts in furtherance of the crime and if such is indeed a crime, then PW1 and PW2 who stated that they were at the scene but merely watched the crime being perpetrated, ought to equally be guilty of charged offence.

He also pointed out that the lower Court gave no cognizance to the defence put up by the appellant and also the respondent failed beyond reasonable doubt to show that the appellant took part in the murder of the deceased person.

RESPONDENT CONTENTION ON ISSUE TWO

The learned respondent’s counsel suggested that in inferring malicious intent to kill or do grievous bodily harm, regard must be paid to:

I. The situation of the parties.

II. The conduct and declaration of the accused person.

III. The nature and extent of the violence and

IV. The nature of the weapons or means used.

Russell and Crime, [Eleventh Edition] p.622. However, from the above suggestions, the respondent’s counsel submitted that the situation of the parties was, inter alia, that of hysteria, suspicion, hate, cacophony, pandemonium and violence.

The conduct and declaration of the appellant are as depicted by PW1, PW2 and PW3 in their evidence during trial. PW1 stated that the appellant and others beat the deceased person. PW2 stated that the appellant was at the scene of the crime.

He maintained that the violence was quite intense to the extent that it culminated in the brutal death of deceased person. He also submitted that, by the virtue of Section 316 (2) of CRIMINAL CODE that one of the ingredients grounding a charge of murder is an intent to cause grievous bodily harm. This can be inferred from the infliction of a machete wound by one armed with such a weapon against another who is unarmed. See ESSIEN V THE STATE [1984] 3 SC. 14 at 15-16.

He restated that the Prosecution, successfully proved its case beyond reasonable doubt to the extent that it was proved that the deceased died; that it was the act of the appellant that caused the death of the deceased and that the act of the appellant was intentional. He contended that, the pieces of evidence as adduced by the PW1 and PW2, remained unchallenged and uncontroverted in spite of their cogency in underscoring the appellant’s culpability in

the allegation of murder. He maintained that the law is settled that a piece of evidence which is either unchallenged or uncontroverted remains an accepted proof of facts it seeks establish. See NWEDE V THE STATE (1985) 3 NWLR (pt. 13) 446.

He also submitted that the prosecution, by credible and cogent evidence (both direct and circumstantial) established the case of murder of the deceased person against the accused person; hence his conviction and sentence of death by the trial Court and the affirmation of same by the Court below.

He contended that whether or not the appellant beat or cut or set the deceased person on fire directly by himself is of no moment in our criminal jurisprudence. He cited Section 7(b) of the Criminal Code which provides that a person is deemed to have taken part in the commission of an offence and may be charge with actually committing the offence if he “… does or omits to do act for the purpose of enabling or aiding another person to commit an offence”.

On the issue of contradictions in the evidence of PW1, PW2, PW3, PW4 and PW5 inter se. He submitted that contradiction, in its proper exposition for evaluation in

criminal law, occurs where it is shown that one piece of evidence is contrary to the fact in issue. On the issue of discrepancy, occurs when one piece of evidence stops short or contains some differences in details vis-a -vis another piece. See UDE V THE STATE [2016] LPELR 40441 (SC) BAREWA PHARMACEUTICALS LIMITED V FRN [2016] 17 NWLR pt 1540 63.

He submitted that, in these pieces of evidence, what exist are pockets of discrepancies devoid of contradictions as all points to the fact that the appellant participated in the murder of deceased person. He explained that even though there may be some elements of contradictions and inconsistencies in the evidence of witnesses at the trial, only those contradictions and inconsistencies shown by the accused person to be substantially fundamental to the main issue before the Court can lead to reversal of the judgment appealed against. He maintained that minor discrepancies or disparities will not destroy the credibility of a witnesses. See THEOPHILUS V THE STATE [1996] 1 NWLR (pt 423) 139. He finally submitted that the Prosecution has successfully proved its case against the Appellant.

Resolution of Arguments in Issue Two.

My Lords, the superior Courts in England, Nigeria and other Commonwealth jurisdictions are unanimous on the constitutive ingredients of the offence of murder, as could be gleaned from the applicable Code provisions. Thus, in a charge of murder, the prosecution is obliged to prove:

(1) that the deceased person died;

(2) that his/her death was caused by the accused person;

(3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. See Woolmington v. DPP [1935] AC 462; Hyam v. DPP [1974] 2 All ER 41; R v. Hopwood (1913) 8 Cr. App. R. 143, [England].

The Nigerian cases on these ingredients include; AKINSUWA V THE STATE [2019] LPELR – 47621 (SC) (Pp 23-25) PARA E, THE STATE V ALI AHMED (2020) LPELR -49497 (SC) AT P.22, PARA, A-B. Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467; Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607. Elsewhere in the Commonwealth, the Courts have similarly upheld these ingredients. See R. v. Nichols (1958) QWR 46; R v. Hughes (1958)

84 CLR 170; Timbu Kolian v. The Queen (1958) 42 A. L. J. R.; R. v. Tralka [1965] Qd. R. 225, [Queensland, Australia].

Others include:Agboola v The State (2013) LPELR 20652 (SC), IDIOK v State (2008) LPELR -1423 (SC) at pp. 8-9. The erudite and distinguished jurist cited, with approval, Ubani and Ors. v. State [2004] FWLR (pt 191) 1533, 1545; [2003] 18 NWLR (pt 851) 224; Godwin Igabeie v. The State [2005] 3 SCM 143, 151; [2006] 6 NWLR (pt 975) 100; Alewo Abogede v. State [1996] 5 NWLR (pt 448) 270.

Text writers are also, agreed on this: C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd 2009) 209 et seq; A G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passsim; K. S. Chukkoi, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); NIALS Laws of Nigeria (Annotated) Criminal Justice Administration Vol. One (Lagos: NIALS, 2008) 685; M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 et seq;

Olanipekun, “The ‘Actus Peus’ and ‘Mens Rea’ as Basis of Criminal Responsibility”, in The Lawyer Vol. 13 (1983) 50; M. A. Owoade, “Recurrent Problems in the Mens Rea of Murder: New Basis for Solutions”, in The Advocate Vol. 9 (1983/84) 81-89; P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq; S. A. M. Ekwenze, Nigerian Criminal Law Cases: A Synoptic Guide (Enugu: SNAAP Press Ltd, 2006) 330 et seq.

However, the Courts have taken the view that the above ingredients must be co-existent or co-eval; that is, they must be co-incident in the sense that the three conditions must co-exist. The effect is that when one of these Trinitarian ingredients is absent, the prosecution would not have discharged its duty. See Ogba v. State [1992] 2 NWLR [pt 222] 16, 168; IDIOK V STATE (supra) at pages 8-9.

As shown above, the appellant was arraigned on information before the lower Court. He was charged with the offence of murder. Counsel for the appellant contended, and rightly too, that the prosecution had the duty to prove the above ingredients beyond reasonable doubt.

The lower Court, upon restating

the above requisite ingredients of the offence of murder, dealt with them seriatim. At page 233 of the record, the Court considered the first ingredient, that is, whether the deceased died. Having gone over the testimonies of PW1, PW2 (under cross examination). DW1 and DW2, it found as a fact that “Christopher Nwankegu” the deceased person – died on 03/04/2009. This finding and conclusion establish the first element of the offence of murder and that is that the deceased person, Christopher Nwankegu has died. The Prosecution has therefore proved this ingredient beyond reasonable doubt.” [page 233 of the record].

The appellant inveighed against this finding in his brief of argument. At page 5 of the brief, it was contended that “… [no evidence was] produced in proof of death of the deceased.” Now, at the lower Court, PW1 had testified thus:

…I saw the accused persons beating my elder brother. I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces. The only person I know is Andrew Omaha, the first accused, I knew him before the incident. The second accused person gave

machete cut. I also saw tenth accused girl. I equally saw the fourth accused, seventh accused. The people mentioned including those I did not mention their names were the people macheting the deceased i.e. including the people standing in the dock, pages 201-202 of the record.

The PW2, DW1 and DW2 all agreed that deceased was dead. It was against that background that the Court found that the first ingredient had been established. It stated thus on page 209-210 of the record: The above piece(s) of evidence, without doubt, established clearly, one issue, Christopher Nwankegu died on 3/4/2009. In the light of the foregoing, this Court finds as a fact and so holds that Christopher Nwankegu, the deceased person died on 03-04-2009. This finding and holding establish the first element of the offence of murder and that is that the deceased, has died. The Prosecution has therefore proved this ingredient beyond reasonable doubt. We equally endorse the above findings of the lower Court. We therefore hold that the first ingredient of the offence of murder was established.

The Court expended considerable energy in the determination of the question whether the

Prosecution proved the second ingredient of the offence of murder, namely, that the death of the deceased person resulted from the act of the accused person, pages 201-210 of the record. It considered the testimonies of PW1, DW2, DW3 and DW4. It ruled out the defence of alibi on the ground that the evidence of PW1 fixed the accused person at the scene of crime and the oral evidence of the appellant whereby he confessed to the crime pages 256 of the record.

In particular, it believed the direct eye witness of PW1 who, vividly, narrated how the deceased person met his untimely death in the hands of the appellant. The learned appellant’s counsel argued that “the mere presence of the appellant at the crime scene does not, as matter of law render the appellant guilty of the crime. Also, there is no enough evidence that the appellant committed this act.

Here, there was the direct evidence of PW1 who, both in his evidence-in-chief and cross-examination maintained that the appellant killed the deceased person in her presence. For example, on page 201-202 of the record where he stated that; … I saw the accused persons beating my elder brother.

I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces.

Counsel for the appellant probably forgot that there are authorities for the view that a “single witness, if believed by the Court, can establish a criminal case even if it is a murder. See Effiong v. State [1998] 8 NWLR (pt 562) 362; Akindipe v. State [2012] 16 NWLR (pt 1325) 94, 116, paragraph C. As was held in Ahmed v. State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; [2001] 12 SC (pt 1) 135, Adamu v. Kano NA [1965] SCNLR 65; Azu v. State [1993] 6 NWLR (pt 299) 303.

It was also contended that the Court relied on the testimony of PW2 “whose evidence as what happened was inadmissible because he stated in his evidence in chief and admitted under cross examination that PW2 did not see the appellant taking active or even passive part in the beating and burning of the deceased but that he saw him standing by the side of the road among the crowd, [paragraph 4.2. of the appellant’s brief]. The submission is not borne out of the records. The truth is that the Court believed the story of the only eye witness, PW1. It relied solely on his testimony.

The Court dealt with the third ingredient of the said offence in pages 201-256 of the record. In doing so, it examined the cases that have interpreted Section 316 (2) of the Criminal Code.

Arising from the evidence placed before the Court by the Prosecution, particularly, the evidence of PW1, I have no hesitation in coming to the conclusion that the act of the accused person by beating and burning the deceased person with tyres and sticks on 03-04-2009 was intentional and with knowledge that death or grievous harm was its probable consequence. The beating and burning were intentional, the accused knew that this act would either lead to death or cause grievous harm. He intended the act and had fore-knowledge of its consequence. In the circumstance, this Court holds that the prosecution has succeeded in proving the third element of the offence of murder.

True, indeed, scholars have expressed reservation on the propriety of the Courts’ continued espousal of the “reasonable man” or natural consequence” guide in ascertaining intent. See for example, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55;

Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited, in C. O. Okonkwo, (‘supra) at page 55; Wootton; Crime and the Criminal Law (London: Hamiyn Lectures, 1963) 33-39. According to Professor C. O. Okonkwo, SAN, Africa’s leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55.

This Court still invoked the natural consequence test. According to Katsina-Alu, JSC (as he then was), the law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely the test of what a reasonable man would contemplate as the probable result of his acts. See Adamu Garba v. State [1997] 3 SCNJ 68.

The lower Court dealt with the requirement of burden of proof in Section 138 (1) of the Evidence Act (then applicable to the proceedings), citing Dibie v. State [2004] 14 NWLR (Pt 893) 257, 284 to the effect that the Prosecution is said to have proved its case beyond

reasonable doubt when it has proved all the ingredients of the particular offence the accused person is charged with. It maintained that “the prosecution has discharge (sic) the burden of proof upon it by this relevant section of the Evidence Act having established all the elements of the offence of murder which the accused is charged with,” page 201-210 of the record.

We agree with this view of the law. It is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. See Aigbadion v. State [2000] 7 NWLR (pt 666) 686; Agbo v. State [2006] 6 NWLR (pt 977) 545; Igabele v. State [2006] 6 NWLR (pt 975) 100; Kim v. State [1992] 4 NWLR (pt 233) 17; Ubani v. State [2003] 18 NWLR (pt 851) 224; Ameh v. State [1978] 6-7 SC 27.

It is clear from the evidence that, at the close of its case for the Prosecution, the Prosecution had discharged the burden that the deceased person died from the intentional or reckless act of the appellant.

In consequence, I hold that the third element has been resolved. In all, I resolve the second issue agai36

have come to unavoidable conclusion that this appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Enugu Division delivered April 11, 2017, CA/E/462C/2015 is hereby affirmed and upheld and appeal dismissed

SC.424/2017

Njoku V. State (2021) LLJR-SC

Njoku V. State (2021)

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