Nma Dogo V The State (2001)
LAWGLOBAL HUB Lead Judgment Report
EJIWUNMI, J.S.C.
The above named appellants were convicted for the offences of conspiracy and culpable homicide contrary to sections 97 and 221 (a) of the Penal Code respectively by Fati Abubakar, J. sitting at the Minna High Court, the state filed its information against them and eight others.
That information, which contained three counts read thus:
The charges
One: That you,
(1) NmaDogo (m)
(2) Aliyu Dwafu Agaie
(3) AlhajiAlfa Tella (Tailor) (m)
(4) Alhaji Baba Idirisu Mohammed (Badirisu) (m)
(5) Garba Magaji (alias Nnazuru) (m)
(6) Baba Sallah Ibrahim (m)
(7) Ibrahim Abubakar Kago (m)
(8) Etsu Dzuko Ndako Agaie (m)
(9) Alhaji Babadoko Kafinta (m)
(10) Alhaji Ndako Agaie (m)
(11) Mohammed Cece (m)
(12) Alhaji Muhammadu Anahiru (Etsu of Agaie (m) and
(13) Ndagi Mohammed Babadoko (m)
on or about the 9th to the 13th day of February, 1994, at Agaie in Agaie Local Government Area of Niger State agreed to do an illegal act, to wit; to cause the death of one Alhaji Ibrahim Tsadu (m) (Former chairman of Agaie Local government Council) and that the same act (causing his death) was done in pursuance of the said agreement and that you thereby committed an offence punishable under section 97 of the Penal Code and triable in the Honourable court.
Two: That you,
(1) Nma Dogo (m)
(2) Ibrahim Abubakar Kago (m)
(3) Alhaji Aliyu Dwafu Agaie (m)
(4) Etsu Dzuko Ndako Agaie (m); and
(5) Garba Magaji (Alias Nnazuru)
on or about the 9th to the 13th day of February, 1994, at Agaie in Agaie Local Government Area of Niger State, formed a common intention with:
(6) Alhaji Muhammadu Attahiru (m)
(7) Mohammed Cece (m)
(8) Alhaji Alfa Tella (Tailor) (m)
(9) Alhaji Babadoko Kafinta (m)
(10) Alhaji Ndako Agaie (m)
(11) Alhaji Baba Idirisu Mohammed (Badirisu) (m)
(12) Baba Sallah Ibrahim (m); and
(13) Ndagi Mohammed Babadoko.
to commit an offence, namely; to cause the death of one Alhaji Ibrahim Tsadu (m) (former Chairman of Agaie Local Government Council) and in furtherance of which you on the 13th day of February, 1994 along Agaie to Etsu Gaie Road, Agaie, did the following criminal acts; inflicting injuries on the said Alhaji Ibrahim Tsadu with sticks, knives, cutlasses and axes, which acts led to his death, an offence punishable under section 221 of the Penal Code read with section 79 of the said Penal Code and triable in this Honourable court.
Three: That you,
(1) Nma Dogo (m)
(2) Ibrahim Abubaka Kago (m)
(3) Alhaji Aliyu DwafuAgaie (m)
(4) Etsu Dzuko Ndako Agaie (m);
(5) Garba Magaji (Alias Nnazuru) m
(6) Alhaji Babadoko Kalinta (m)
(7) Alhaji Ndako Agaie (m)
(8) Mohammed Cece (m)
(9) Alhaji Alfa Tella (Tailor) (m)
(10) Alhaji Baba Idirisu (Badirisu) (m)
(11) Baba Sallah Ibrahim (m)
(12) Alhaji Muhammadu Attahiru (m) (Emir of Agaie);and
(13) Ndagi Mohammed Babadoko (m)
on or about the 13th day of February, 1994 along Agaie to Etsu-Gaie Road, Agaie, did commit the offence of culpable homicide punishable with death in that you caused the death of one Alhaji Ibrahim Tsadu (m) (former Chairman of Agaie Local Government Council) by doing the following acts; to wit: beating, stabbing and inflicting injuries on the said Ibrahim Tsadu with sticks, knives, cutlasses and axes with the intention of causing his death and that you thereby committed an offence punishable under section 221 (a) of the Penal Code and triable in this Honourable Court.
Following their plea of not guilty to each of the counts upon which they were charged, the trial court then proceeded with their trial. In support of its case, the state called 38 witnesses in the course of which 58 items that included the voluntary statements of the accused persons were tendered and were admitted in evidence as exhibits. As a result of the no case submissions made on behalf of each of the accused persons at the end of the case for the prosecution, the learned trial Judge struck out the second count of the information. The learned trial Judge discharged and acquitted the 10th and 11th accused persons, namely, Alhaji Ndako Agaie and Alhaji Mohammed Cece respectively.
In addition, the learned trial Judge discharged and acquitted the 3rd, 4th, 6th, 9th and 13th accused persons on the count alleging that they committed the offence of culpable homicide punishable with death contrary to section 221 (a) of the Penal Code. Although they were made to defend the remaining count of conspiracy against them with the other accused persons, not yet discharged and acquitted in the counts standing against them in the information they were also discharged and acquitted when the learned trial Judge delivered her judgment. Before that judgment, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 13th accused persons had testified in their own defence and also called witnesses who testified in support of their defence and in which some of them raised the defence of alibi. The 12th accused person, Alhaji Mohammadu Attahiru, the Etsu of Agaie, did not give evidence nor did he call any witnesses. He apparently rested his case on that of the prosecution. Following addresses of learned counsel for the accused persons, the learned trial Judge delivered a considered judgment. Before that judgment the learned trial judge had discharged and acquitted the 9th and 13th accused persons. And in the judgment aforesaid, she discharged and acquitted the 3rd, 4th, 6th, and 12th accused persons on counts alleging conspiracy to cause the death of Alhaji Ibrahim Tsadu punishable under section 97 of the Penal Code. The learned trial Judge however found the 1st accused, Nma Dogo; 2nd accused, Alhaji Aliyu Dzwafu; 5th accused, Garba Mogaji; 7th accused, Ibrahim Kago; and the 8th accused guilty of the twin offences of conspiracy to cause the death of Alhaji Ibrahim Tsadu, and also causing his death punishable under section 221(a) of the Penal Code. They were consequently sentenced to death by hanging.
Following their convictions and sentence as aforesaid, they appealed to the court below where their convictions and the sentence passed on each of them were confirmed.
As they were all dissatisfied with the judgment and orders of the court below, each of them has now appealed to this court. Pursuant thereto each of them filed grounds of appeal to challenge the decision for the court below. The grounds of appeal so filed would not be set down in this judgment as the issues raised hereon are sufficiently covered by the issues raised in the appellants’ brief.
They are as follows:
(1) Whether from the nature and circumstances of this case, the prosecution had actually proved its case against the appellants beyond reasonable doubt.
(2) Whether the affirmation of the conviction and sentences imposed on the appellants by the trial court in the way and manner done by the Court of Appeal was not unreasonable and against the weight of evidence adduced at the trial.
The issues reproduced above were adopted in the respondent’s brief. Before the issues so raised are considered in the light of the submissions made for the parties by their respective counsel, the brief background facts that led to the arrest and conviction of the appellants would be given.
The deceased, Alhaji Ibrahim Tsadu, who was then the Chairman of Agaie Local Government Council in Minna was the victim who was allegedly murdered on the 13th day of February 1994. On the night of that day, the deceased in the company of his wife and another person were all being driven in his car by his driver from Agaie towards Etsugaie when the car was forcibly stopped along the road. This occurred when the windows of the car were smashed with stones and cudgels. The driver soon found that he could not continue further as the road upon which he was driving had been blocked with wooden objects that had been laid across it. As soon as the car stopped, several persons attacked the car and its occupants with dangerous weapons which included sticks, knives and axes. It is alleged that the deceased who came out of the car to challenge the attackers with his gun was eventually killed. Though his wife was also injured, she did not die. The others, i.e. the driver and the other person in the car escaped from the scene, though not injured.
It is also part of the case for the prosecution that the above five appellants named above conspired with each other and the other persons named in the information filed against them to murder the deceased. It is alleged also, that the conspirators met to hatch the conspiracy in the palace of the 12th accused, Alhaji Mohammed Attahiru (Emir of Agaie), and who has since been discharged and acquitted.
I think it is also appropriate to mention here that the gravamen of the case of the prosecution against the appellants is that they were seen at the scene of crime before the event, either helping in the cutting of the wood or laying same to block the road leading to Agaie. For this evidence, and that concerning their participation in the commission of the offence, heavy reliance was placed on circumstantial evidence.
At the end of the trial, the learned trial Judge convicted the appellants upon the evidence led by the prosecution. Hence the appellants were convicted of the offence of culpable homicide for which they were charged. The learned justices of the Court of Appeal also accepted the finding of the learned trial Judge. Hence the appellants lost their appeal to that court.
In this court the appellants filed an appellants brief, and upon the receipt of the respondent’s brief, they filed a reply brief.
I will now set down the main arguments made for the appellants in the two briefs for them.
The thrust of the argument of the learned counsel for the appellants is that the court below was wrong to have confirmed the findings of the trial court that the prosecution had established beyond any shadow of doubt the guilt of the appellants. It is the submission of the learned counsel for the appellants that though the case of the prosecution rested on the evidence of PW1, PW2; PW4; PW8 and PW 16, a careful consideration of the evidence of these witnesses would have revealed to the learned justices of the Court of Appeal that their evidence alone, or when taken together could not have led to the conclusion reached by the trial court that the case against the appellants was proved beyond reasonable doubt
It is further argued for the appellants that the only witness who claimed to have seen the appellants at the scene of crime preparing to commit the offence, and who indeed claimed to have seen them participating in the commission of the offence is the PW4, Umaru Mohammed. It is the further submission of learned counsel for the appellants that for the evidence of such a witness to be relied upon.
In that regard, reference was made to the case of Emine v the State (1991) 7 NWLR (Pt. 204) 480. He then submitted that the evidence of PW4 lacks credibility having regard to its inconsistency and inherent contradiction revealed in his testimony both under cross-examination and when compared with the evidence of other witnesses who gave evidence at the trial. Several of such inconsistencies and contradictions were listed in the appellants’ brief. Some of them would be considered later in this judgment. It is therefore the submission of learned counsel for the appellants that had the learned Justices of the Court of Appeal considered “dispassionately” the evidence of PW4 and the other pieces of evidence given by other witnesses the court below would have come to a different conclusion. This court is therefore urged to reconsider the evidence led at the trial and to hold that the prosecution had failed to discharge the burden or proof laid on the prosecution to establish the guilt of the appellants beyond reasonable doubt. Also cited in the appellants’ brief to support the contention that throughout the trial the prosecution never took any steps to either explain these inconsistencies or reconcile these contradictions in the evidence of PW4 and the evidence of other witnesses called by the prosecution are the following cases: Onubogu v The State (1974) 9 SC 1; and Nwabueze v. The State (1988) 3 NWLR(Pt. 86) 16.
The main contention made for the respondent as could be gathered from the brief filed for the state is that the case for the prosecution was established beyond reasonable doubt. And reference was made to Woolmington v DPP (1935) All ER
- It is also argued that the trial court and the court below were right to have accepted the evidence of PW4, whose evidence it is contended is cogent and uncontroverted both in court and at the locus in quo. And in support of that submission, reference was made to Oteki v. A.G., Bendel State (1986) NWLR (Pt.24) 648 at 651, and also to Zekeri Abudu v. the State (1985) 1 NWLR (pt.1) 55 at 62, for the submission that the evidence of PW4 was properly considered credible because of his identification of the appellant’s killing of the deceased. His recognition of the appellants was not a fleeting recognition, it is submitted.
Now it is manifest from the argument of counsel in this appeal that the evidence of PW4 was crucial to the conviction of the appellants.
In the course of her judgment, the trial court had this to say about the evidence of this witness at pages 550 – 551 of the printed record:-
“In the course of his testimony both in this court and at the locus,
I carefully observed PW4. He struck me as a very alert, intelligent young man, his illiteracy notwithstanding. His testimony was unhesitant, sure and very confidently given. He withstood the withering and vigorous cross-examination of learned counsel very well. In this wise his inquisitive propensity becomes understandable. It is that curiosity that led him to observe the acts on the Etsugaie road that thoroughly rattled him…………………………..”
Then after making some comparison of the evidence of PW2., Safiya Ibrahim Tsadu, wife of the deceased, concerning the alleged conversation of PW4 with PW2, soon after the murder of the deceased, near the scene of the offence, the learned trial Judge, held thus at p. 551:-
“One may wonder what PW4 was doing on that road at that time of the night towing a bicycle without light. It certainly cannot be for the purpose of a leisurely stroll. This thus gives evidence to PW4’s testimony that he left his village while it was still light to go to his mission in Agaie and reach town before it gets dark as his bicycle has no light, he however came face to face with commission of crime. Thus notwithstanding his delay in reporting the crime, I am in the circumstance satisfied and have no doubt that PW4 ‘s testimony in court is the truth. ‘believe his account of what he saw and who he saw at the scene of crime is true. ”
This appraisal of the evidence of PW4 by the learned trial Judge was subjected to attack before the court below, and also in this court. It is contended for the appellants that if the court below had carefully considered his evidence in the light of the inherent contradictions and inconsistencies in it, the court below would have been loathe in accepting his evidence as portrayed by the learned trial Judge.
Now it seems to me that the focus of the case of the appellants is that PW4, was simply not in a position to have given the evidence which he gave identifying the appellants at the scene of the offence, and as the perpetrators of this heinous offence. To begin with it is argued for the appellants that PW4 upon his evidence should not have been believed that he was at the scene of the offence and was in a vantage position to see the events that he described and to identify the appellants at the scene.
In the course of his evidence-in-chief, PW4, testified that he left his village at about 6.45pm on the day of the incident, i.e 13/2/94. That was after he broke his fast with porridge and Kosai. Thereafter he proceeded towards Agaie on his bicycle. It was when he left Ekpangi at a place called Fillicko near a culvert that he saw some people ahead of him standing near another culvert.
His evidence continued thus:-
” I saw these people enter into one Alhaji Isah’s farm and began cutting some wood with which they started blocking the road. I wondered why they were doing so I came down form my bicycle with a view to finding out what they were going to do. I went and squatted down under a tree on the right side of the road and watching these people. I saw some five people that knew amongst them. At the time I was sitting under the tree kept my bicycle in one Alhaji Audu Badama’s farm. In the area there are trees. There was no grass at that time. Some of the people were cutting woods while others were carrying them and placing them on the road, blocking the road to the culvert. The people wore black dresses. The distance between where I was squatting to where the people were cutting the trees was about 45 feet. Those cutting trees were nearer to me than those blocking the road. There were more than five people cutting the trees but the five I knew were nearer to me. I had known them before the incident. I saw their faces at that time”
Now it is clear from the evidence of PW4 that he sought to give the impression that he was able to see the appellants because of his closeness to the scene of crime and that he had a clear view of them because there was light at the time. But from the evidence that emerged when the court moved to the locus in quo it is manifest that he could not have been as near to the appellants as he said. The records show that from the 1st culvert where the 4th PW first stood and from where he sighted some persons to the second culvert where they were standing was 910 feet.
Although at the locus in quo the 4th PW demonstrated to the court where he was in relation to the persons he identified, yet the fact remained that all that demonstration could not have been of requisite assistance for a court seeking to reconstruct the events that happened on the fateful night. This is because as the real event happened in the early evening to late evening, the visit to the locus in quo would have been more useful if it was carried out at about the same time as when the incident occurred. It must be borne in mind also that during the investigation of this case, PW36 an Assistant Inspector of Police, Nkereuwem Ukoh, attached to FIIB, Alagbon Close, Lagos, went to the scene.
This witness in the course of his evidence estimated that PW4 could not have been less than about 60 meters to where he claimed he stood to where he saw the appellants. He further added that the time when this incident occurred was between 7.00 pm and 8.00pm.
In his view the time the PW4 gave was exaggerated as he had no watch on him.
It is also pertinent to observe that under cross-examination, 4th PW who had earlier said that there were cashew trees at the scene of crime, turned to say that there are no cashew trees at the scene of crime. Yet it is established fact that cashew trees were found to have been used to block the road to stop the movement of the deceased’s car.
As I have said above in this judgment, what is of crucial importance in this case is whether the 4th PW could have seen the appellants at the time he claimed he saw them at the scene of crime. The evidence led by the prosecution must show that he had the opportunity of seeing them and the prosecution had the burden of establishing that fact. In this regard, the evidence as to what time the 4th PW got to the scene and the nature of the vegetation prevalent at the time are material contradictions and inconsistencies in the evidence of the prosecution. Where such contradictions and inconsistencies are established, then the appellants are entitled to be given the benefit of the doubt so created. See Onubogu v. The State (1974) 9 SC 61; Nwabueze v. State (1988) 3 NWLR (Pt. 86) 16.
However, in the view of the learned trial Judge, the evidence of the 4th PW properly identified the appellants with the offence. The court below also endorsed this view of the evidence of the 4th PW. But, having regard to the observations made above on the evidence of 4th PW, raise the troubling question to whether the 4th PW had the opportunity of seeing the appellants as claimed. While the 4th PW might have known the appellants before the incident, the question remains as to whether he saw them as he claimed at the scene of this incident. Though the 4th PW tried to suggest that there was light at the time he got to the scene, the time he actually got there remained in doubt. Now though this 4th PW, claimed that he was so disturbed by what he saw that he urinated in his trousers, yet he did not think it fit to report the matter to the police immediately. And he admitted that he knew the Agaie Police Station. But, he went on the next day to Agaie to collect money from his father that was the reason that took him out of his village. It is significant that he did not also tell his father or anyone else about the incident immediately after it happened. It must be noted that he at first said his statement was made a few days after the incident. But it seems clear that the police did not know of him until about four months after the incident.
With due respect to the learned Justices of the court below, I have grave doubts as to whether they would have endorsed the judgment of the learned trial Judge if they had considered the evidence of 4th PW in the light of the observation made above. In my respectful view, the evidence of a witness who said that he was able to identify accused persons in the circumstances disclosed in this case, must be clear and unequivocal as to the opportunity he had of seeing the accused. Moreso where in this case the witness did not report the incident soon after it happened. And also bearing in mind the fact that this incident happened in the early evening to late evening. There must be in my humble view, evidence that the witness had a clear view of the appellants in all the circumstances by proving positively that at that time of the day the witness was able to see clearly the appellants he identified as some of the persons who blocked the road and who later took part in the killing of the deceased.
Having formed this view of the evidence of 4th PW, I must perforce refer to the issue argued for the appellants that the lower court wrongly upheld the view of the trial court on the defence of alibi raised by the appellants. In its judgment, the Court of Appeal at page 123 lines 12- 16 of the record said thus:
“I am inclined to agree with the findings of the learned trial Judge that even though the appellants raised the plea of alibi individually such plea cannot be sustained in view of the fact that the prosecution was able through PW4 to adduce evidence sufficient enough to fix all the appellants at the scene of crime.”
It is therefore clear that the lower court depended on the view held of the evidence of PW4 by the trial court. I have already pointed out that if the lower court had considered the evidence of PW4 critically as I have outlined above, the decision reached by the lower court might have been different. It must always be remembered that the plea of alibi, must not only be investigated by the prosecution. It is evident that in the instant appeal, that the appellants set up their defence of alibi as soon as they were arrested. But it is on record that this defence was not investigated in respect of the 4th and 5th appellants. In respect of the other appellants whose alibi were investigated, it is evident that their alibi was in each case dismissed because the trial court believed the evidence of 4th PW.
In this regard it must be borne in mind that where an accused sets up an alibi, the onus still lies on the prosecution to prove beyond reasonable doubt that the accused was at the scene of the offence as alleged. See Adedeji v. The State (1971) 1 ALL NLR 75; Peter v. The State (1997) 3 NWLR (Pt. 496) 625 at 642
With the view I have held of the evidence of PW4, there can be no doubt that the prosecution cannot be said to have proved its case against each of the appellants beyond reasonable doubt.
During my consideration of this appeal, I have not been unmindful of the settled law that the concurrent findings of facts of two lower courts should not be disturbed unless there is a substantial error apparent on the record or that the findings are shown to be perverse or that they would lead to some miscarriage of justice. See Sobakin v. State (1981) 5 SC75; Nasamu v. State (1979) 6-9 SC; 153; Adio v. State (1986) 2 NWLR (Pt. 24) 581 at 589.
Having regard to all I have said above, I am of the firm view that in the instant case the concurrent findings of the two lower courts ought to be disturbed. The flows from my considered view that the evidence linking each of them to the commission of the offence has not been proved beyond reasonable doubt.
In the result, I allow each of the appeal of the appellants. The conviction and sentence recorded against each of them by the lower courts are hereby set aside. I hereby also discharge and acquit each of the appellants accordingly.
SC.44/2000