Nwiko V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
ADAMU JAURO, J.S.C.
This appeal is against the judgment of the Court of Appeal, Port Harcourt Judicial Division wherein the Court affirmed the judgment of the High Court of Rivers State convicting the Appellant and two others for the offence of murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State.
BRIEF FACTS OF THE CASE
The Appellant was arraigned with five others for the death of one Baribiae Iledae. The case of the Respondent was that the deceased and his sister, one Cecilia Tor-ue who testified as PW1 went to the deceased’s farm to do some work. PW1 in her evidence on oath testified that on their way back from the farm, the Appellant, the 1st and 3rd accused persons and others still at large who were in the 1st accused person’s Peugeot 504 drove past them, but then reversed the car and attacked the deceased with knives and axes while others joined them from the bush. PW1 testified further that she went to a nearby village to call for help and upon her return to the scene of crime, the assailants had killed the deceased as a result of multiple machete wounds and left his body in the bush. That the following morning, she reported the matter to the village head, one HRH Mene Baridam of Lumene village who wrote her a letter which she took to the police. According to PW1’s narrative, prior to the incident which culminated into the killing of her brother, there was a pending litigation between the deceased and the 1st accused person whose car was used in conveying the killers to the crime scene.
On his part, the Appellant denied committing the offence charged. He denied making a statement to the police which was tendered and admitted as Exhibit J and J2. At the conclusion of trial and after the adoption of final written addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant and two others guilty as charged and sentenced them to death by hanging.
The convicts were dissatisfied with the judgment of the trial Court and appealed to the Court below, albeit unsuccessfully. However, in a bid to exhaust his constitutionally guaranteed right of appeal, the Appellant in the instant appeal has invoked the appellate jurisdiction of this Court via a notice of appeal containing nine (9) grounds of appeal filed on 4th May, 2018.
EDWIN ANIIKWEM ESQ., in due observance with the Rules and Practice of this Court settled both the Appellant’s Amended brief of argument filed on 1 November, 2020 and Reply Brief filed on 16th February, 2022. For the determination of the appeal, the learned counsel for the Appellant formulated a sole issue to wit:
“Whether on the total circumstances of this case, the Court of Appeal sitting at Port-Harcourt was right when it affirmed the conviction and sentence of the Appellant by the Court of Trial. (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)”
Arguing the sole issue, learned counsel submitted that it is evident that the Appellant was not one of those who killed the deceased as PW1 did not mention his name in her statement to the Police when the incident was still fresh in her memory, but only mentioned his name in her oral evidence made about two years after the incident occurred. He submitted that this contradiction in Exhibit A and the PW1’s oral evidence renders her evidence unreliable. Reliance was placed on POPOOLA V. STATE (2015) 6 NWLR (PT. 1456) 468, UCHE V. STATE (2015) 11 NWLR (PT. 1470) 380. It was further submitted that where a witness claims to have seen a person committing a crime but does not name him at the earliest opportunity, the failure to mention his name will detract from any credibility which the Court would have attached to the witness’ testimony. Counsel cited the cases of UDEH V. STATE (1999) 7 NWLR (PT. 609) 1, ANI V. STATE (2009) 16 NWLR (PT. 1163) 443.
It was his contention that the failure of PW1 to mention the name of the Appellant to the Police despite knowing him prior to the death of the deceased is fatal to the Respondent’s case. That there was no evidence linking the Appellant with the offence charged as the Police did not explain how they got to arrest the Appellant having not been mentioned by PW1.
The Appellant’s counsel submitted that the only evidence that linked the Appellant to the crime was his statement to the police in Exhibit J. He submitted further that Exhibit J is not confessional as the Appellant denied committing the offence. It was further submitted that the contents of Exhibit J are clearly contradictory to the events as narrated by PW1 and that this raises doubt as to the veracity of her evidence regarding the death of her brother.
Learned counsel referred to the extrajudicial statement of the 1st accused person at page 8 of the record of appeal and submitted that the 1st accused person stated therein that PW1 admitted to Chief Baridam that she did not know who killed the deceased; that PW1 told Chief Baridam that she accused him (the 1st accused) of killing the Appellant because he had previously falsely accused the deceased of robbing him. It was submitted that this is indicative of PW1 having a vendetta against the 1st accused person. That the evidence of PW1 that the Appellant killed the deceased because of the pending litigation between them also further shows that she had an axe to grind with the Appellant. Counsel submitted that HRH Chief Baridam is a vital witness and that the Respondent’s failure to call him as a witness creates a reasonable doubt in the case of the Respondent. Reliance was placed on OSUAGWU V. STATE (2016) 16 NWLR (PT. 1537) 31.
It was submitted that the case as it pertains to the 1st accused person is important because if it is shown that he is not guilty, the Respondent’s case would collapse because as it was alleged that it was he who gathered the Appellant and others to kill the deceased. On the whole, counsel urged this Court to allow the appeal and to acquit and discharge the Appellant.
AYODEJI OMOTOSHO, ESQ., settled the Respondent’s brief flied on 25th August, 2021. The Respondent’s counsel merely adopted the sole issue formulated by counsel for the Appellant for the determination of the instant appeal.
Arguing the sole issue, counsel enumerated the elements of the offence of murder and submitted that the parties are ad idem that the first element was established beyond reasonable doubt.
In response to the Appellant’s contention that PW1’s evidence lacks credibility because she did not mention the Appellant’s name as one of the killers in her first statement to the police, counsel for the Respondent submitted that the contention is not supported by the available evidence as the trial Court found the testimony of PW1 to be direct, and unshaken on the identity of the Appellant as one of the killers of her brother. Counsel further submitted that the evidence of PW1 was an eyewitness testimony which remained unshaken during cross-examination. He submitted that assuming the Appellant did not directly participate in the killing of the deceased, he would still be liable to be convicted for murder by the combined effect of Sections 7 and 8 of the Criminal Code. That by planning with the other culprits to kill the deceased and his failure to stop them from executing their plan makes him liable as a principal offender. The cases of ANYASODOR V. THE STATE (2018) LPELR – 43720 (SC), EGWUMI V. THE STATE (2013) LPELR- 20091 (SC) were cited in support of this position.
On the third ingredient of the offence of murder, it was submitted that the post mortem conducted by PW7 which showed that the deceased died from about 10 machete wounds manifests the intention of the accused persons to kill the deceased or cause him grievous bodily harm.
Counsel urged this Court not to interfere with the concurrent findings of the lower Courts accepting the evidence of PW1 that the Appellant was one of those who killed the deceased as the findings of the Courts below are not perverse and are based on the evidence on record. Reference was made to the case of ISAH V. STATE (2017) LPELR- 43742. He finally urged this Court to dismiss the appeal and to uphold the decision of the lower Court affirming the conviction of the Appellant for the offence of murder by the trial Court.
Exercising his right of reply, counsel for the Appellant submitted that contrary to the position of the Respondent, PW1 cannot be said to be an eyewitness to the crime as she admitted to fleeing the scene of the crime when the assailants started attacking the deceased. In the final analysis, counsel submitted that there was no compelling circumstantial evidence linking the Appellant with the offence charged.
In the determination of the instant appeal, I shall adopt the sole issue formulated by learned counsel for the Appellant which was equally adopted by the Respondent. The germane issue as rightly captured by the counsel for the Appellant is whether from the circumstances of this case and the totality of the evidence led at trial, the Court below was right to have affirmed the conviction and sentence of the Appellant for the offence of murder.
The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty.
The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGUA & ORS VS THE STATE (1970) LPELR-2780 (SC); Sections 135 & 138 of the Evidence Act 2011 (as amended).
The Appellant herein was charged with murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State.
It is trite law that the prosecution is duty bound to prove the following essential elements beyond reasonable doubt to secure a conviction for the offence of murder:
- That the deceased is dead
- That the death of the deceased person resulted from the Acts of the accused person
- That the accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
The above ingredients must co-exist and where one of them is either absent or tainted with any doubt, the charge is said not to be proved. See the cases of ILIYASU VS THE STATE (2014) 15 NWLR (PART 1430) 245, SULE VS THE STATE (2009) 17 NWLR (PT.1169) 33, NKEBISI VS THE STATE (2010) 5 NWLR (PT.1188) 471. MBANG VS STATE (2010)7 NWLR (PT 1194) 431, USMAN VS THE STATE (2011) 3 NWLR (PT.1233) 1, SABI VS THE STATE (2011) 14 NWLR (PT.1268) 421, ULUEBEKA VS STATE (2011) 4 NWLR (PT.1237) 358.
To determine whether the Respondent proved the offence of murder against the Appellant beyond reasonable doubt is an issue to be determined after revisiting the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of an eyewitness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of ADEYEMO V. STATE (2015) LPELR – 24688 (SC).
In a bid to discharge the burden of proof imposed on it by law, the Respondent called eight witnesses and tendered several exhibits including Exhibits J and J2 (the extra-judicial statement of the Appellant) and Exhibit L (the report of the autopsy of the deceased). One Cecilia Tor-ue testified as PW1, and on the basis of her testimony coupled with that of PW7, one Dr. Charles Ngor Amakiri, the Appellant was convicted for the offence of murder. To start with, it is not in contention in this appeal that the deceased died. The evidence of PW7 who conducted the post-mortem examination on the deceased’s body puts it beyond peradventure that the deceased died as a result of Hypovolaemic shock due to blood loss from injuries sustained from multiple machete cuts inflicted on him. The decision of the Court below regarding the death of the deceased was not challenged and failure of the Appellant to challenge this specific finding means that the said finding is accepted as binding on him. On failure to challenge a specific finding of a Court, see the cases of ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140, OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56; (2006) 15 NWLR (pt.2002) 342, STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135. The issues in contention in this appeal are whether the deceased’s death was caused by the act or omission of the Appellant and whether the act or omission causing the death of the deceased was intentional.
I stated in the preceding paragraph that the testimony of PW1 forms the fulcrum upon which the Appellant’s conviction was erected. It is therefore on this basis that I find it expedient to reproduce her evidence at trial. PW1 in her testimony at page 93 of the record of appeal testified as follows:
“My names are (sic) Cecilia Tor-ue. I live at Nyowii Lueku. I am a farmer. I know all the accused persons in the dock. I can remember the date of 9/11/2001. On 9/11/2001, my brother by name Baribiae Iledea came and met me at Nyowii, that I should follow him to his farm. After we finished work on the farm, we were returning home at about 7pm., one Chief Sakpugi Gonee drove his car and passed us as we were returning. Sakpugi Gonee is the 1st accused person. The 1st accused after passing us to a distance he stopped the car and in the 1st Accused car, are one Lambert Nwiko, Promise Aanee, he is here in Court, Lambert Nwiko is the 2nd accused person. Nanee Baede is also here in the Court and he is the 6th accused person. This was along the road between Nyowii and Lumene. As they drove past us they revised back and stopped by us they came out of the vehicle and grasped my brother. They brought out with them sticks, axe, gun and knife and attacked my brother. As they grasped my brother, four other men emerged from the bush to join them to attack my brother. One of the four persons that came out of the bush was Stephen Nuanya, others are Tor-ue Zimnee, Pie Nwisah, Nna Nyonya. As they were attacking my brother in the bush I ran back to the Bionu village and as I arrived there I was shouting and I met one Goodluck Nwidonu, Lekia Konbe and others whom I requested to help me. I told the people that my brother was being attacked and requested them to go with me. They followed me from Bionu village and when we arrived at the scene we found out that my brother had been killed and left in the bush.”
From the evidence of PW1 elaborately reproduced above, it can be deduced that the Appellant and the 1st accused person were known to her before the incident that led to the killing of her brother. She stated in her evidence on the same page 93 of the record that:
“Before the incident, the 1st accused had already had a matter with my late brother at Court 6, Port-Harcourt on a case of stealing.”
To add credence to her testimony, PW1 in her extra-judicial statement made to the Police on 10/11/2001 and admitted as Exhibit A mentioned the name of the Appellant as part of those who killed her brother on 9th November, 2001.
The Appellant on the other hand, in his extra-judicial statement tendered and admitted as Exhibit J stated that:
“I am Lambert Nwiko ‘M” from Idam’s family in Nyogue compound in Lumen: Bangha in Khana L.G.A of Rivers State. I attended my primary education at State School. Lumene but finished in 1979. Presently, I am a palm wine tapper. I know the late Baribiae Iledae as my village boy, and also I know Chief Sakpugi Gonee as my brother. I always go to the house of Chief Sakpugi any time that I have a problem and he do assist me. What actually happened was that Chief Sakpugi Gonee and the late Baribiae Iledae had a case, which the late Baribiae was remanded in prison custody and late Baribiae was released from Prison as Baribiae was released from prison custody. Chief Sakpugi Gonee organized some boys, including myself, Aawa Aanee. Lekara Gionee. Tor-ue Zimnee, Nnaa surname unknown but can been identified if seen. One Stephen Nyanyaa, Kuebari Gonee, N.P.P. Gonee, Nambeabu Nwilebari. Money Nue-ue and Aba Mark to guard him so that Baribiae Iledae would not kill him and damage his properties! I then joined to guard him for two nights. The two days I stayed with them at Chief Sakpugi house, we and Chief Sakpugi planned how to kill the said Baribiae Iledae. We used guns and matchets to guard Chief Sakpugi. During the guard we used three guns. Aawa, Aanee carried one gun, Ue-Bari Gonee and N.P.P. Gonee also carried one gun each, while Nambeabu Nwile-Bari came with his own special gun as he is a hunter. Then on the 9/11/2001 at about some minutes to seven in the evening. Chief Sakpugi sent one of his sons called Lekara Gonee to call me. As I got to Chief Sakpugi’s house, his son Lekara asked me to enter his father’s vehicle which I did. As I entered the vehicle already Chief Sakpugi was there, he Kara who drove the vehicle. N.P.P. Aawaa Aance. Stephen Nyanyaa, Kue-Bari while other persons Money Nee-ue, Aba Mark, Nambeabu Nwile-Bari and Nanee Baade treke to the place known as Lumene/Bionu road. All our killing instruments such as guns/machetes we carried inside Chief Sakpugi’s vehicle 504 vehicle. On getting at a point along Lumene/Bionu road Chief Sakpugi dropped us and instructed us to kill Baribiae Iledae. After giving us this instruction. Chief Sakpug, gave me the sum of two thousand naira but I don’t know how much he gave to the other people. Chief Sakpugi knew that Baribiae would be returning from farm at that particular time, because Chief Sakpugi has a farm there and he knew that Baribiae would be returning by then. After collecting the money, I ran away, I did not take part in the killing. Later I heard in the village that Chief Sakpugi and these people. I mentionce their names have killed the said Baribiae Iledae. For more clarification as Chief Sakpugi dropped us from his vehicle, Neesane Gonee carried matchet, while Aawa Aanee used his gun. After killing Baribiae Iledae, the above-mentioned killers went to Kabangha river/stream and washed themselves. I was not with them but they told me when they came back to the village.” Upon the tendering of the Appellant’s extra-judicial statement in Exhibit J, the Appellant denied making the said exhibit and the trial Court, in due observance with the principles guiding retraction of extra-judicial statements, admitted the said statement and thereafter looked for other evidence on record to ascertain whether the said statement was true and probable. The Appellant in his evidence at trial merely denied the allegation, however, he admitted knowing the 1st accused person and the deceased.
Going by the testimony of PW1 and that of PW7 on those who killed the deceased and the cause of his death, it is safe to conclude that the Appellant’s confession was probable and true and his denial of the role he played in the death of the deceased was a mere afterthought. In Exhibit J, the Appellant gave a graphic account of how the deceased was killed. The narration in Exhibit J is identical to the testimony of PW1 on how the deceased died. In Exhibit J, the Appellant admitted to have taken part in the planning of the murder of the deceased but that he ran away when the deceased was about to be killed. The Appellant admitted to be at the crime scene and this made him know that one Neesane Gonee carried a matchet while one Aawa Aanee used his gun in the killing of the deceased. These vital information would have been unknown to him if he truly ran away as claimed.
As rightly held by the learned trial judge who had the opportunity to watch the demeanour of witnesses and whose primary duty is to evaluate the evidence led at trial, in the face of the positive identification of the Appellant by PW1 in both her evidence on oath and her extra-judicial statement, it is highly true and probable that the Appellant made Exhibit J and that he was part of those who killed the said Baribiae Iledae on November, 2001. The trial Court at page 215 of the record held as follows:
“I hold therefore that Exhibits J and J2 were properly admitted and binds the 2nd accused person only, particularly in the light of the positive eye witness account of PW1 linking and fixing the 2nd accused to the events of 9/11/2001 at Bionu/Lumene Farm Road. Using Exhibits J and J2 as hanger on which to assess the veracity of the 2nd accused person as is allowed by law, I find that his evidence on oath basically are lies concocted by him to mislead this Court. I do not therefore, believe him at all. He is not a witness of truth and the entirety of his evidence before me is hereby discountenanced.”
Going to the last ingredient of the offence of murder which is that the accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence, I am of the view that a person who cuts another with a machete severally causing excessive bleeding leading to Hypovolaemic shock ought to know that death or grievous bodily harm was the probable consequence of his action.
I therefore hold that the Respondent led satisfactory evidence proving the guilt of the Appellant for the offence of murder beyond reasonable doubt. It is trite law that in criminal trials, the standard of proof placed on the prosecution is proof beyond reasonable doubt and not beyond every shadow of doubt. See AJAYI V. STATE (2013) 9 NWLR (PT. 1360) 589, BASSEY V. STATE (2012) 12 NWLR (PT. 1314) 209.
The counsel representing the Appellant made heavy weather on the failure of the Respondent to call Chief Baridam as a witness because the 1st accused person in his extra- judicial statement stated that PW1 was out to ensure the conviction of the accused persons because he had previously accused her brother of stealing. I am of the view that if Chief Baridam was a crucial witness in establishing the motive of PW1 as alleged by the Appellant’s counsel, nothing stopped the Appellant from calling the said witness considered vital to his defence. The failure to call such witness is to the Appellant’s detriment and the presumption of withholding evidence cannot be imputed on the Respondent who was not duty bound to call a particular number of witnesses in so far as it is satisfied that the number of witnesses to be fielded was enough to secure a conviction.
The Appellant’s counsel in his brief also argued strenuously on the innocence of the 1st accused person at trial. According to his submission, if it is shown that the 1st accused person is not guilty, the Respondent’s case would collapse because it was the 1st accused who was said to have gathered the Appellant and others to kill the deceased. Let me at this juncture point out that the instant appeal was initiated by Lambert Nwiko, the Appellant herein. The Appellant’s counsel cannot foist on this Court to use the instant appeal to set aside the conviction and sentence of the 1st accused person.
In appellate proceedings, issues for determination are not formulated out of nowhere. They must have their roots in the grounds of appeal. The submissions and arguments on issue(s) distilled from the grounds of appeal must in turn also have their foundation from the issues formulated for determination.
The Appellant’s counsel skillfully, albeit unsuccessfully tried to surreptitiously bring an appeal on the findings of the trial Court on the guilt of the 1st accused using same as leeway to argue the innocence of the Appellant. Assuming but without agreeing that the Appellant’s counsel is not precluded from raising these points, it is my opinion that all the submissions and arguments regarding the failure of the Respondent to dislodge the defences raised by the 1st accused have no root in the grounds of appeal before this Court. A perusal of the grounds of appeal vis-a-vis their particulars would reveal that a substantial part of the Appellant’s brief was targeted at proving the innocence of the 1st accused person whose appeal is not before this Court. It is regrettable that the Appellant’s counsel made more submissions and arguments regarding the innocence of the 1st accused person than that of the Appellant, whose appeal is under consideration. I find this alien to appellate practice and procedure.
In conclusion, by reason of the failure of the Appellant to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court, the consequence therefore is that the appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Port Harcourt Judicial Division wherein the Court affirmed the judgment of the High Court of Rivers State which convicted the Appellant for the offence of murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State is hereby affirmed.