Sopakiriba Igbikis Vs.the State (2017)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal sitting at Port Harcourt, hereinafter referred to as the Lower Court, delivered on 21st March 2014, affirming appellant’s conviction and sentence for the offences of conspiracy and murder by the Rivers State High Court, the trial Court, in the latters judgment dated 6th June 2013. The brief and undisputed facts that brought about the appeal are herein under recounted.
Respondent’s case remains that following an agreement arrived at a meeting in a hotel at Agudama Street, “D” line, Port Harcourt, the appellant and two others with whom he was tried as well as others at large, on 12th January 2007, murdered Chief Dan Opusingi, Chief Okpara Brown, Chief Obaye Ojuka, Chief Telema Eferebo, Chief Anthony Opuari, Gbang Gbang Pere, Ibiemi Bobmanuel, Bode Faabere and Ezekiel Kumi. The deceased were travelling on a speed boat from Abonnema to Kula both within Akuku Toru Local Government Area in Rivers State. The agreement among the
conspirators was reached on the 5th January, 2007.
To prove its case, the respondent called six witnesses and tendered Exhibits A, B, B1, C and C1 C17. Exhibit B is Appellant’s extra judicial statement wherein he asserts being in Lagos at the time of the murder of the chiefs and totally denies being part of the agreement to and the murder of the deceased. Of the witnesses the prosecution called, PW5 was the only eye witness to the murder in respect of which the appellant and two others were tried two of whom stand convicted which conviction is affirmed by the Lower Court. PW5 made three extra judicial statement. Exhibit C6 on 13th January 2007, Exhibit C4 on 22nd January 2007 and Exhibit C5 on 28th January 2011. PW5 neither mentioned appellant’s name in Exhibit C6 nor Exhibit C4. He did so only four years later in Exhibit C5.
In addition to appellant’s testimony as DW4, three witnesses testified and relied on his behalf. He tendered and relied on Exhibits D1- D16.
At the end of trial, including addresses of counsel, the Court held that the respondent had proved its case, convicted and sentenced the appellant and his co-conspirators as
charged. Aggrieved, the appellant appealed to the Lower Court on nine grounds. The Court dismissed the appeal and affirmed the trial Court’s decision.
Dissatisfied, the appellant has further appealed to this Court seeking the determination of his appeal on the basis of the four issues he distilled one of which being the most apposite and on the basis of which the appeal will be determined reads:-
(i) Was there any admissible evidence on record from which the Court below could have justifiably affirmed the trial Court’s inference of conspiracy to commit murder by the appellant (ground 5).
In arguing the appeal, Wilcox Abereton, learned counsel for the appellant, submits that the answer raised by the issue is in the negative. Of all the six witnesses the respondent called to prove its case against the appellant, it is contended, Ibitoroko Dan, PW5, is the only eye witness to the events which constitute counts 2 to 9 the charge. The testimony of the four police officers, being hearsay, remains worthless. The findings of the trial Court, which decision the Lower Court affirmed, at Pages 181, 182, 202 and 261, learned counsel submits, bear out appellant’s
contention. At pages 366 367 and 370 in particular, learned counsel further submits, the trial Court having found the entire evidence of Pw5 unreliable, rejected same.
Exhibit B, appellant’s extra judicial statement, learned counsel further argues, total denial of appellant’s participation either the conspiracy that led to or the actual murder of the deceased by the appellant and his co-conspirators. At page 376 of the record of appeal, learned counsel submits, is the trial Courts finding that at the end of the prosecutions case no direct evidence avails to warrant appellants conviction and sentence. The trial Court, by the combined operation of Sections 286 and 287(1) of the Criminal Procedure Law, CAP 38, Laws of Rivers State 1999 and Section 36(5) of the 1999 Constitution as amended should have discharged and acquitted the appellant. Appellants conviction in breach of these two provisions having occasioned miscarriage of justice, on the authorities, learned counsel concludes, warrants this Court’s interference. It urged that the appeal accordingly be allowed.
Responding, learned counsel contends that there is
sufficient lawful evidence to sustain appellant’s conviction by the two Courts below. Appellant’s opinion of the late Chief Dan Opusingi as contained Exhibit B, appellant’s extra judicial statement, it is further submitted, clearly gives out the appellant. The appellant feared the late Chief and would be re-assured with nothing short of eliminating the chief. He did not take kindly to his being forced on exile by the late chief. Appellant re-emerged from exile, it is argued, only to exterminate the person he so hated along with others he considered a threat. The Lower Courts affirmation of the trial Courts inference of appellants participation in the murder of the chiefs, learned counsel contends, is justified in law. The trial Courts findings at pages 375 376 and the Lower Courts concurrence at pages 473 479, it is argued, cannot be faulted.
Insistent, learned counsel submits that outside the evidence of PW5 the trial Court rejected, the two Courts relied not only on Exhibit B, appellant’s extra judicial statement, but further on Exhibit B1, C and C1 the confessional statements of his co-accused, along with
the evidence of PW1. These pieces of evidence, it is submitted, clearly show the appellant to be in concert with his co-accused persons in the murder of their victims on 12-1-2007. The law, it is submitted, places a burden on the appellant to rebut such evidence led which conclusively points at him as being one of the perpetrators of the offences. None of the cases cited and relied upon by learned appellant counsel, it is further contended, absolves the appellant from that duty. His failure to provide the evidence in rebuttal justifies both Courts’ reliance on the unchallenged evidence to convict him. The defence of alibi appellant sought to raise in Exhibit B was rightly rejected by the two Courts below. Having failed to show that the concurrent decisions of the two Courts are perverse, learned counsel concludes, the appeal must accordingly fail. He relies on Ibodo Enarofia (1980) 5 7 SC 42 and Adeleke V. The State (2014) ALL FWLR (Pt.722) 1552 at 1668. On the whole, learned counsel urges that the unmeritorious appeal be dismissed.
Appellant’s contention in this appeal is that the Lower Court’s affirmation of the
trial Court’s judgment which does not arise from credible admissible evidence is perverse. I agree with learned appellant counsel that on the authorities a Court’s decision which does not arise from the evidence on record constitutes such miscarriage of justice that imposes on the appellate Court the duty to set same aside. If indeed the Lower Court has failed to set aside the trial Courts conviction and sentence of the appellant which does not arise from any credible evidence, then this Court is entitled to step in and do the needful. See Rabiu v. The State (1980) 8 11 SC 85; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; (1985) LPELR 592 (SC) and Williams v. The State (1992) 10 SCNJ 74.
The conviction and sentence of the appellant arises from a criminal trial. The onus of establishing his guilt beyond reasonable doubt lies on the respondent. The onus does not shift. If at the end of trial and on the whole evidence, the trial Court is left in a state of doubt, the respondent would have failed to discharge the burden the law puts on it thereby entitling the appellant to an acquittal. See Okputuobiode & Ors v. The State (1970) LPLER
2524 (SC) and Ogundiyan v. The State (1991) 3 NWLR (Pt.181) 519. What then are the crucial findings of the trial Court in relation to the evidence led by the respondent that the Lower Court affirmed
In the determination of appellant’s guilt under count one of the information, conspiracy, the trial judge at page 354 of the record commendably started by reasoning thus:-
I find that by Exhibit B1 the 2nd accused person have admitted the role he played in the commission of the offence i.e. count 1 of the information and also incriminated the 1st and 3rd accused persons but Exhibit B1 cannot be used against the 1st and 3rd accused persons without more. This is because a voluntary confession is deemed admissible and relevant against the maker and not against another person. (Underlining supplied for emphasis).
The Court proceeded through page 355 of the record as follows:-
“Leaving the 2nd accused person aside, I go to the 1st and 3rd accused persons. From the evidence adduced in this case, I find that while the 3rd accused person was the Chairman of Kula Youth Organization, the 1st accused was the organizing
secretary. I also find as a fact that the 1st and 3rd accused persons were driven out of Kula Community and the 1st accused is one of those the 3rd accused referred to as his boys that were driven out of Kula Community as a result of the disagreement between the 3rd accused as the Chairman of Kula Youth Organization and the Kula Council of Chiefs headed by Chief Dan Opusingi. The 1st and 3rd accused persons, therefore had issues to settle with the Kulo Council of Chiefs.
Even though, the 2nd accused person in Exhibit B1 and his evidence in Court denied that the 1st accused was present at the meeting of 5th January, 2007, the conduct of the 1st accused after 12th January, 2007 as revealed in his evidence in Exhibit B and his evidence in Court portray him as someone who was not only privy to the meeting but was aware of the plan to carry out the dastardly act of murder on 12th of January, 2007. The 3rd accused in Exhibit C and C1 demonstrated being the Leader of the boys who carried out the dastardly act on 12th January, 2007. I do not believe the evidence of the 1st and 3rd accused person denying
count 1 of the information. (Underlining supplied for emphasis).
And concluded at page 357 of the record thus:-
I must say that although proof of the offence of conspiracy is generally a matter of inference to be deduced from the criminal acts and omissions of the conspirators, in the instant case, from the totality of the evidence adduced, there exists not only evidence from which this Court can infer the offence of conspiracy but also evidence in positive proof of same. For example, Exhibits B, C, C1 and C2 as well as the conduct of the 1st accused in wanting to run to the 3rd accused camp near Idama in Abonnema and also 3rd accused person avoiding police arrest from January, 2007 until January, 2011…
Consequently, I hold that prosecution has proved count 1 of the information against each of the accused persons. (Underlining supplied for emphasis).
On counts 2 – 9 of the information, the trial Court at page 366 of the record found in relation to the evidence of PW5, the only eye witness to the commission of the offences, as follows:-
Exhibit ‘C4’, while PW5 mentioned the names of 2nd and 3rd accused persons and some others at large, he did not mention the name of the 1st accused person as one of those who attacked their boat on the 12th January 2007 but in his evidence in Court he mentioned his name… the fact this is a criminal trial where the prosecution is to prove the case against each of the accused persons beyond reasonable doubt makes the submission of the learned counsel for the 1st accused person that since PW5 did not mention the name of the 1st accused in Exhibit ‘C4’ but mentioned it in his evidence in Court, this Court cannot rely on Pw5’s evidence implicating the 1st accused person is potent (sic) and I agree with him. This is more so when the said submission is view against the evidence of PW5 under cross-examination that he knows the 1st accused person very well and anywhere he sees him, he would know him… By the authorities of Abudu V. State (supra) and Bassey & ors V. The State (2003) FWLR (Pt 164) 292 at 310-311, the evidence of PW5 an eye witness, implicating the 1st accused person is rendered unreliable
and this Court cannot act on it against the 1st accused.”
(Underlining supplied for emphasis).
Notwithstanding the foregoing, the trial Court held in relation to the 2nd to 10th counts at pages 376 – 377 as follows:-
“Even if there is no positive evidence from any of the prosecution witnesses since P.W.5 evidence implicating the 1st accused was rejected establishing that the 1st accused was seen on the 12th day of January, 2007 committing the crime for which he was charged to Court, but from my findings while considering count 1 of the information on the alibi pleaded by the 1st accused, I cannot but hold that the 1st accused was privy to the plan to kill Chief Opusingi and therefore by the provision of Section 8 of the Criminal Code Law (supra) he cannot escape the consequences of what happened on 12th January, 2007…, I hold that the prosecution has proved that the accused persons committed this heinous crime of murder beyond reasonable doubt.
In the final analysis, I find each of the accused persons guilty in count 1 and in counts 2 to 9 of the information.” (Underlining supplied for emphasis).<br< p=””
In affirming the trial Court’s foregoing findings of the Lower Court at page 478 – 479 of the record concluded as follows:-
“The trial Court by circumstantial evidence found that the Appellant was among those who caused the death of the deceased… They i.e. the Appellant and the two other convicts all nursed a common purpose i.e. to eliminate Chief Dan Opusingi their common foe tormentor and oppressor according to them. The learned trial Court found that the weapon of choice i.e, firing guns at the deceased human beings was an act the probable consequence of which is death. This is in cognizance with the decision in Akpan v. State (1994) 9 N.W.L.R. Part 368 pages 347 at 362 paragraph D.
The findings of the leaned trial judge on the circumstantial evidence are cogent and point irresistibly to the fact that the Appellant was privy to the plan to kill Chief Dan Opusingi. The findings are not perverse and this Court has no cause to reverse it.” (Underlining supplied for emphasis).
It is evident from the foregoing findings of both Courts that appellant’s conviction and sentence proceeded on the basis of circumstantial evidence. Circumstantial
evidence is very often the best evidence. It is evidence of a combination of circumstances against an accused person, none of which, on its own, provides the Court with cogent proof of guilt but when viewed together create strong conclusion of his guilt with the highest degree of exactitude. See Isong Akpan Udoebre & ors v. The State (2001) 8 SCM 127, Joseph Ilori & anor v. The State (1980) 8-11 SC 52 and Moses Jua V. The State (2010) 1-2 SC 96. In a number of its decisions, this Court has insisted that only such circumstances that make a complete and unbroken chain constituting sufficient proof that the accused person did commit the offence for which he is charge will sustain a conviction. See Ofe Adesina (A.K.A. Alhaji) & anor V. The State (2012) 6 SC (Pt.III) 114.
In the case at hand, the two Courts relied on appellants animosity with, nay hatred for, the late Chief Opusingi whom, from Exhibit B1, C1 and C2, the extra judicial statements of the 2nd and 3rd accused persons respectively, is shown to be the leader of the rival union that sent the appellant on exile. On return from exile and given this circumstance, the trial Court held,
the appellant would settle for nothing short of the murder of the deceased chief and his associates. This conclusion is arrived at inspite of the aspect of Exhibit B1 which absolves the appellant from being privy to the agreement arrived at on 5th December 2007 in a hotel at Aguduna Street ‘D’ line Port Harcourt by the conspirators which agreement led to the murder of the chiefs. Appellant’s alibi in Exhibit B the trial Court adjudged untenable and his demeanor in the course of testifying provide the Court the further irresistible circumstance of inferring that the appellant was a party to the conspiracy and eventual murder of the deceased.
These circumstances cannot form the basis of the inference the trial Court made as to appellant’s guilt. Appellant’s alibi comes into issue only when a prima facie case is made out against him by the respondent in respect of the offences he is charged. There is, as shown in the passages of the trial Courts judgment earlier reproduced herein, no evidence whatsoever outside the evidence of PW5 linking the appellant either with the conspiracy or the murder both Courts convicted him for. The finding of the trial
Court that PW5’s evidence is unreliable renders same unavailing. That finding has not been appealed against. It still persists.
At best, therefore, the circumstances the two Courts found cogent and unequivocal enough to warrant the inference of appellant’s guilt are very remote basis for suspicion. No matter how pointing the suspicion is, it does not constitute proof of the appellant’s guilt. Thus in the absence of any evidence linking the appellant with the two offences, the Lower Courts affirmation of his conviction, learned appellant counsel is right, is perverse. Notwithstanding that the two Courts are concurrent in their findings as to appellant’s guilt, their findings which are not borne by the evidence on record cannot endure. Not being maintainable, the findings are hereby set aside. The appeal succeeds. The appellant is discharged and acquitted.