Oguejiofor Ilodigiwe V. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHEL CHUKWUMA-ENEH, J.S.C 

This appeal filed by one Oguejiofor Ilodigiwe (appellant) is against the judgment of the Court of Appeal Enugu Division (lower court) that has affirmed the judgment of the High court of the Anambra Judicial Division holden at Otuocha, (trial court presided over by Ezeani J.) which has convicted and sentenced the appellant and 5 (five) other co-accused persons to death by hanging for the murder of one Maduneke Enweonye missing since 8/6/1994 and whose dead body has not been recovered to this day.

Aggrieved by the decision the appellant has by an undated Notice of Appeal appealed the decision to this court raising five grounds of appeal therein. As required by the Rules of this court all parties to this appeal have filed and exchange their respective briefs of argument.

The appellant in his brief of argument filed in this matter on 28/9/2010 has formulated a sole issue for determination as follows:

“Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant for murder on the basis of the evidence of PW5 only in the circumstances of the case.”

The respondent in its brief of argument filed on 18/10/2010 on its part has adopted the lone issue raised by the appellant as its own issue for determination. To fully understand this case I set out the salient facts as found by the trial court and also as culled from the records of the lower court’s judgment; they are as follows:

The dispute in this matter among members of Isiokwe Anaku Community to which the families of the appellant and Maduneke Enweonye (deceased) belong is over a fishing pond called “Ikpi Fishing Pond” situate at Isiokwe Anaku. The appellant’s people claimed that the pond belongs exclusively to his family while the family of the deceased has maintained that the pond belongs to the entire Isiokwe Anaku community. Eventually the community has resolved that “Ikpi Fishing pond” is the common property of all Isiokwe Anaku Community and thereafter they let out “Ikpi Fishing pond” for a fee to one Chief Philip Ezeoba for 5 years. He appointed PW2 as the manager to manage the Fishing pond and he in turn employed the appellant to fish in the pond for him. The manager later replaced the appellant by appointing the deceased in his stead. This change over did not go down well with the appellant. It so displeased the appellant that he made no secret of his displeasure and this broke out in the open on 21/5/94 at the Community Town Hall during the native festival of “Uta Amanwulu” at which place the appellant had issued a threat to kill the deceased and dispose of his body if he did not withdraw his employment from “Ikpi Fishing Pond”. Not even the protestations from his kinsmen against the threat could make the appellant to withdraw his threat as he along with some of his immediate kinsmen stormed out of the Community Town Hall that day (21/5/94) to his house nearby where they continued their separate meeting- He also expressed his resentment by protesting to the manager of the fishing pond. This orgy of resentments has culminated in the event of 8/6/1994 when the deceased disappeared vis-a-vis the PW5’s story of the incidents of that fateful night (8/6/94) of the killing of the deceased and the decision to dump his remains in Anambra River. The deceased had not been seen again ever since by anybody who knew him including his relatives. The appellant and six others were arrested and charged with the offence of murder. More facts are as Stated in the body of this judgment.

It will be seen that the appellant’s case here as well as the sole issue raised for determination has been premised on attacking the credibility of PW5 as an eye-witness. I have decided therefore to set out in the body of this judgment the material parts of his testimony in relation to the detailed account of what transpired between PW5 and the appellant and his co-accused persons at the locus criminis as given before the trial court. It is on the background of the above facts so far that I now go on to examine the cases of both parties in this appeal.

The appellant as per his brief has adverted to the cases of Sowemimo v. The State (2004) 11 NWLR (pt.885) 55 and Adekunle v. The State (2006) NWLR (pt.1000) 717 and thereupon has re-ecohed the onus on the prosecution to prove the death of Maduneke Enweonye (deceased) and that the acts of the appellant and his co-accused persons have caused the death of the deceased beyond reasonable doubt. He has opined that where the prosecution is relying also on circumstantial evidence as here to prove its case the evidence must be cogent, unequivocal and compelling pointing only to the accused persons’ guilt, thus ruling out the possibility of any fabrication concoction and the like. see also Lori v. The State (1980) 8-11 SC.81 at 86-87, Tepez v. The Queen (1952) AC.490 at 489, Popoola v. C.O.P. (1964) NMLR.1 and Igabele v. The State (2006) NSCQR 321. The point is taken that the only an eye-witness account of the incident is as has been given by PW5 white the other witnesses’ evidence are purely circumstantial. The appellant has pointed out the critical weaknesses of the circumstantial evidence in the prosecution’s case in this matter as it has failed in proving conclusively the essential ingredients of the crime in connection with the accused persons on the issues as to the death of the deceased and that the appellants’ acts caused his death particularly so as the body of the deceased has not been discovered. The appellant has referred to the controversy amounting to severe contradictions, inconsistencies surrounding the evidence of the respondent’s witnesses vis-a-vis the findings as to the traces of blood of the deceased at the scene of crime and the footprints of the appellant incriminating him and other co-accused persons as having been fixed at the locus criminis that night and as establishing the case against the appellant. It is pointed out that this story has been wrongly accepted by the trial court and as pinning the appellant at the locus criminis in view of the prevarications in the evidence of the prosecution witnesses. The appellant has also made strongly the point that these pieces of evidence have been rightly rejected by the lower court on appeal to it even though wrongly accepted and acted upon by the trial court as not being well founded in pinning the appellant and the others at the locus criminis and thus casting serious doubts on the respondent’s entire case as to proving the death of Maduneke Enweonye and its causal connection with appellant’s acts. Standing on this submission it has been submitted, even then, that the lower court on having rejected the said pieces of evidence ought not to have turned-round later on in its judgment to rely on the same weakened evidence of PW5 so showed to be unreliable and rickety to convict the appellant and his co-accused persons. In this regard he has opined that the lower courts have by acting on PW5’s evidence alone thrown the necessary caution as to acting on the evidence of a sole witness in cases as this one to the winds thus rendering their respective decisions erroneous in law.

The appellant in an attempt to destroy PW5’s credibility has decried accepting the evidence of PW5 without caution even as PW5 is also a relative of the deceased, and as can be gathered as having other ulterior purpose to serve against the background of the surrounding circumstances of this matter, which has made it all the more evident even moreso by his failing to report the incident at once on 8/6/94 to the police and the recording of his Statement to that effect to the Police only as on 30/9/1994 – a period of 3 months late thus raising serious suspicions against it as an afterthought. As regards the swearing of Iyi Ani juju by PW5 on the night of 8/6/94 at the locus criminis and the injunction of secrecy on the pain of death not to reveal how the deceased had been killed, the appellant has described this story among others – as incredible, concocted and fabricated. So also the story that PW5 on having fallen sick immediately after the incident of 8/6/1994 for which he received treatment from a native doctor i.e. one Okoko Ujaonwu who cured him not only of his immediate sickness but also of the spell cast on him by the said oath. And how the native doctor enjoined him (PW5) to reveal those who killed the deceased on his having been freed from the baneful effects of the oath of Iyi Ani. The appellant has also decried these facts as not having been investigated by the police at all as PW5 has made his Statement too late to enable the Police to investigate the facts therein. Nonetheless, that as per these pieces of evidence the lower courts have accepted and acted in error on PW5’s testimony without due caution. He makes the point that for these pieces of evidence about PW5 and his native doctor to merit acceptance by the court they must in all circumstances even as the native doctor has not testified here be credible; the appellant in this regard has referred to Egbunike v. A.C.B Ltd. (1995) 2 NWLR (pt.375) 34 to support the contention.

In contending that PW5’s evidence is not credible generally even in the absence of any serious cross-examination on those questions as alleged by the respondent, the appellant in this regard has strongly contested the premise of the specific finding by the trial court that “the eye witness account given by the PW5 was not shaken by cross-examination” and as also has been affirmed by the lower court, as unfounded. Even then he has relied on Fasugba v. I.G.P. (1964) 2 ANLR 15 to upstage the findings surrounding the intervention of the native doctor in treating PW5 and on the prosecutions failing to call the native doctor to testify being an important witness in this matter and thus it has given a lie to the credibility of PW5’s stories of having been cured by him of his illness and whatever manner of relationship between them, which stories even then are totally inadmissible evidence being hearsay evidence. The appellant has also debunked whatever as alleged happened at the locus criminis describing them as part of an incredible story concocted against the fact that the incident as alleged happened on a very dark night after a heavy down pour of rains and they the accused persons could not have been identified at the locus criminis by PW5’s in such circumstances particularly so at the flash of PW5’s torchlight. In this regard he has referred to the compounding circumstances of the credibility problem arising from the discharge of the 7th co-accused whom PW5 also identified as having been at the locus criminis but all the same has been discharged on a successful plea of alibi. He has therefore opined overall that it is unsafe in the premises to rely on PW5’s rickety evidence to convict as here where the prosecution’s case of pinning all the accused persons at locus criminis armed with the named dangerous weapons in their respective possession has been severely flawed and dented even moreso as one of them (i.e. 7th accused) has been proved by his successful plea of alibi to be somewhere i.e. elsewhere at the time of the offence. On the evidence of identification of the appellant proper and his co-accused persons at the locus criminis the appellant challenged the totality of PW5’s evidence as not having met the conditonalities laid down by the law for accepting such evidence to warrant putting any credence upon it.

And in short that the critical evidence of their identification is not credible in the circumstances and should be rejected and has referred to and relied on Ndidi v. The State (2007) 13 NWLR (pt.1052) 633, R. v. Turnbull & Ors. (1976) 3 AER 549 cited with approval in Ikemson v. The State (1989) 5 NWLR (pt. 110) 455 at 472 to support the contention.

The appellant has therefore challenged his conviction and that of his co-accused persons on the fact of the trial court having discharged the 7th co-accused on the same evidence of PW5 upon which they have been convicted and that every one of them is entitled to a benefit of doubt as the 7th accused and relies on Wosari Umani v. The State (1988) 2 SC (pt.41) 88 at 100-101 per Nnamani (of blessed memory) on what alibi connotes and also Adedeji v. The State (1971) 1 ANLR 75, Abele Onafowokan v. The State (1987) 7N SCNJ 252 per Oputa JSC.

In sum the appellant has made mountain out of above scenarios, consequently he has submitted that the two lower courts have not evaluated or properly evaluated PW5’s evidence of identification of the appellant at the locus criminis as against the enormous damaging background of the acquittal of the 7th accused also based on the same evidence. Moreso, he has submitted that based on what is required in law as espoused in the case Ndidi v. The State (supra) that the lower courts have not respectively warned themselves of the dangers of acting on the discredited identification of the appellant by PW5 against the peculiar surroundings of the alleged incidents of that night. The appellants has also recalled the saga of events surrounding the swearing of “Iyi Ani juju” at the scene of crime and has further submitted that the inconsistencies in PW5’s evidence vis-a-vis the other 9 witnesses’ stories in these respects have made PW5’s evidence most unreliable and self-contradictory and otherwise fabricated and particularly as the spot where the Oath of “Iyi Ani juju” took place as alleged so far has remained at large as no police witness has testified to its reality. see Agba v. The State (2006) NSCQR p.137 at 162 and Abele Onafowokan v. The State (supra).