In The Court of Appeal
(Akure Judicial Division)
On Tuesday, the 4th day of December, 2012
Suit No: CA/AK/39/11
Before Their Lordships
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN ....... Justice, Court of Appeal
CHIMA CENTUS NWEZE ....... Justice, Court of Appeal
CHINWE EUGINIA IYIZOBA ....... Justice, Court of Appeal
OJURI ANJOLA Appellants
THE STATE Respondents
CHIMA CENTUS NWEZE, J.C.A (Delivering the leading Judgement): At the High Court of Ondo State, Akure Judicial Division, the appellant was arraigned on information dated September 29, 2004. He was alleged to have murdered one Sunday Ayodele "contrary to and punishable under section 319(1) of the Criminal Code Cap 30 Vol. 11, Laws of Ondo State, 1978." A proof of evidence containing a list of five witnesses and the proposed exhibits was filed with the information. An additional proof of evidence, dated February 1, 2006, was also filed. The trial of the accused person commenced on May 31, 2006. In proof of its case, the prosecution called two witnesses. The accused person testified for himself as DW1. He called three additional persons who testified as DW2, DW3 and DW4. The case of the appellant was that he was not at the locus criminis and could not have been responsible for the death of the deceased.
At the conclusion of the case, the court [Coram Bola J], (hereinafter referred to as the lower court), in its judgement of February 16, 2010, convicted the appellant and sentenced him to death by hanging. Aggrieved by the said decision, the appellant has appealed to this court. Two issues were formulated for the determination of his appeal. They were framed thus:
ISSUES FOR DETERMINATION
1. Whether from the circumstances of this case, the prosecution proved its case beyond reasonable doubt against the appellant in spite of the obvious and material contradictions in the evidence of the prosecution witnesses.
2. Whether the trial court properly directed itself in dismissing the alibi raised by the accused person when there is (sic) nothing placed before the Court to debunk same.
The respondents adopted these issues; hence, they would be used in the determination of this appeal.
Whether from the circumstances of the case, the prosecution proved its case beyond reasonable doubt against the appellant in spite of the obvious and material contradictions in the evidence of the prosecution witnesses.
ARGUMENTS OF THE APPELLANTS COUNSEL
When this appeal came up for hearing, appellant's counsel, M. A. Ojo, adopted the brief of argument filed on November 16, 2011. He placed reliance on the arguments therein as his submissions in this appeal. In the said brief, he contended that the evidence of the two witnesses for the prosecution, especially that of PW1, could not justify the conviction of the appellant without any other corroborative evidence in support of the case of the prosecution. He observed that the lower court placed heavy reliance on the evidence of PW1 in convicting and sentencing the appellant for the offence of murder contrary to the above provisions of the Criminal Code.
Counsel explained that the PW1, the mother of the deceased person, testified that she saw the appellant stabbing the deceased, Sunday Ayodele, with a knife. The deceased fell down. He later died in the hospital. She further testified that her other son saw this development. He cited Ubani v. State  18 NWLR (pt 851) 224, 241 for the ingredients of the offence of murder. It was argued that the prosecution must establish all these ingredients that constitute the totality of the offence charged, Isibor v. State  3 NWLR (pt 754) 250, 278. Above all, it must establish the guilt of the accused person beyond reasonable doubt. It must, also, prove the cause of death and that it was due to the act of the accused person. Thus, the prosecution cannot succeed if it established the cause of death alone.
Counsel contended that, in the present case, there was no evidence of the cause of death. The alleged "Makeje Knife," used in killing the deceased, was never brought to court for identification or as evidence. Neither was any evidence produced in proof of the death of the deceased, citing Aiguoreghian v. State  3 NWLR (pt 860) 367, 408-409 on the imperative of the proof of the certainty of the cause of death and that the death of the deceased person eventuated from the act of the accused person. The view was canvassed that, in the instant case, there was no evidence of death or reliable proof of the cause of death placed before the court. This was fatal to the case of the prosecution, Aiguoreghian v. State (supra) 418.
He explained that the appellant testified and called witnesses to establish that he was not present at the scene of the fight (if any) and could not have been responsible for the death of the deceased. The only witness for the prosecution who claimed that the appellant killed the deceased was the PW1, the mother of the deceased. It was, then, submitted that, though no particular number of witnesses was required to prove any fact, yet the court must be careful in convicting on the evidence of a single witness in a serious offence like murder, Amodu v. State (2010) 2 NWLR (pt 1177) 47,77. Counsel contended that it was unsafe and dangerous for a trial court to convict on the uncorroborated evidence of a witness who was also a victim as, in the instant case, the mother of the deceased, citing Amodu v. State (supra).
It was submitted that, in criminal cases, the burden of proof of the commission of an offence was, strictly, on the prosecution, citing section 137 (10) of the Evidence Act 2011. The burden never shifts. The prosecution must not create any lingering doubt in its evidence. If there was any doubt, it must be resolved in favour of the accused person, Nnolim v. State  3 NWLR (pt 283) 569,580-581. The court was urged to note that the PW2, Adekunle Ayodele, a brother of the deceased person, gave evidence that it was the PW1 that informed him that the appellant had stabbed the deceased. In other words, he never witnessed what led to the death of the deceased.
The evidence of the DW1, the appellant, was that he learnt that it was his brother living with him, Ejiro, who fought with the deceased. He testified at page 34 of the record. His evidence was corroborated by DW2 who testified on page 36. This was also confirmed by DW3 in his evidence at page 37. This evidence of the appellant that he was absent from the scene was also confirmed by the DW4 at page 38 of the record. It was observed that, throughout the case, no effort was made to cast doubt on this assertion of the appellant. There was no evidence of the policeman who investigated the case for the court to be seized of the report of investigation. This was even more so when this had been the position of the appellant at the police station in his extra-judicial statement to the police, pages 13-15 of the record.
The view was canvassed that if there were other possibilities that it was not the accused person who committed the offence and that others, other than himself, had the opportunity or probability of committing the offence with which he was charged, such an accused person could not be safely convicted for the offence, Ubani and Ors. v. The State  18 NWLR (pt 851) 224,241. Above all, the lower court was duty bound to resolve any ambiguity created by the testimonies of the prosecution and the witnesses in favour of the accused person, Aiguoreghian v. State (supra) 396.
In the instant case, the prosecution failed to call any witness to corroborate the testimony of PW1. According to counsel, this was in spite of PW1"s testimony that one of her sons witnessed the fact that the appellant attacked and killed the deceased. Counsel submitted that if this son had been called as a witness, his evidence would have resolved the identity of the killer. The trial court ought to have invoked the provisions of section 149 (d) of the Evidence Act against the prosecution for, deliberately, shielding the evidence of the son from the court.
The court was urged to hold that the evidence would have been unfavourable to the case of the prosecution.
It was further submitted that the evidence of the two witnesses for the prosecution were fraught with contradictions and obvious inconsistencies. Attention was drawn to the extra-judicial statement of PW1 at page 6 where she stated that: "[t]he accused came to my house with some people and woke up my son who was already asleep. He called him outside and stabbed him with a knife."
Attention was drawn to the circumstances given in her evidence at page 18 which were inconsistent with the extra-judicial statement. Indeed, in her extrajudicial statement, the PW1 did not say that another person was present but in her evidence-in-chief she testified that: "When the other son of mine saw this development, he then came," page 18 of the record. The only son of the PW1, who testified as PW2, claimed he was not present at the scene of the fight but was told by the PW1. Obviously PW2 could not be the son, the PW1 claimed witnessed the stabbing of his brother.
The court was urged to take note that the decision of the lower court was more influenced by issues and considerations not placed before it. For example, the court, in its judgment at page 49 lines 13 and 14, stated that: "The accused, while attempting to run away, pushed her (PW1) and she fell. He ran away."
The court, equally, placed heavy reliance on the testimony of PW 2 whose evidence, as to what happened, was inadmissible. He stated in his evidence in chief, and admitted under cross examination, that he was not present when his brother was stabbed. According to this witness, it was PW1 (his mother) who told him what led to his brother's death. The court was, also, urged to take note that, though PW1 testified that the appellant came to their house with some people, page 18, she never gave any evidence of what the people did or why they did not do anything.
Counsel urged the court to advert its mind to the fact that the PW1 testified that the DW1 and deceased did not have any quarrel and did not have any fight, see page 19, lines 1, 2 and 13. If there was no fight, quarrel and disagreement between the deceased and the appellant, then there could not be any killing. He took the view that such inconsistencies, as those highlighted above, which were not explained by the prosecution, should make the court to treat the evidence of prosecution as unreliable , Ubani and Ors v. The State (supra) 246.
It was submitted that the prosecution had a duty to explain any such inconsistencies. This, they failed to do. These inconsistencies created a dark cloud on the evidence of the prosecution which the court could not ignore and which must be resolved in favour of the accused, Uguru v. State  8 NWLR (pt 769) 367, 383; Egwim v. State  1 NWLR (Pt 532) 59. He urged the court to resolve issue one in favour of the appellant.
On this issue, learned counsel for the respondent submitted that the prosecution was able to prove its case against the appellant beyond reasonable doubt. They called two witnesses whose testimonies were direct and unequivocal in supporting the charge against the accused person. He contended that the PW1 was an eye witness to the offence the appellant committed. She even interacted with the appellant before he struck his victim / deceased and ran away. He maintained that if the court believed the evidence of a single eye witness to a crime, it was enough to ground a conviction, Effiong v. State (1998) 8 NWLR (pt 512) 362; Abogede v. The State  4 SCNJ 221, 233. It was noted that PW1 and PW2 were relations of the victim.
It was, also, noted that PW1, who was an eye witness to the crime, was the mother of the deceased person. These relationships, however, did not affect the value of their evidence, Yahaya v. The State  1 NSCC 120, 144. He, therefore, submitted that the mere fact that PW1 was the mother of the victim did not affect the value of her evidence. For the prosecution to succeed in a case of murder, certain elements must be established, Kada v. The State  8 NWLR (pt 208) 134, 144.
Counsel observed that once the above elements were established against the appellant, the Court would find him guilty and convict him accordingly. In the present case, the Prosecution was able to establish all the elements stated above. He submitted that, by the evidence on record, it was proved that the victim, that is, one Sunday Ayodele, died on December 25, 2003, citing page 18 line 21 of record.
PW2, at page 19 line 21, said "I know one Sunday Ayodele who was my junior brother. He is dead now." DW1 said, at page 34 lines 17-18, "I was detained because of the boys that fought themselves because Sunday had died." At page 35 line 12, the appellant said "I know one Sunday Ayodele. I was told he is dead now." DW2 also confirmed under cross examination at pg 36 line 19 that "I Know Sunday Ayodele. He is dead now."
It was submitted that, from the above evidence, somebody died and it was one Sunday Ayodele, as shown by the evidence on record. Counsel, further, submitted that it was the act of the appellant that caused the death of the deceased. PW1 was an eye witness. She testified at the court below that the appellant stabbed the deceased to death, page 18 lines 18-19 of the record.
Counsel maintained that it was the act of the accused/appellant that caused the death of the deceased. In his view, by using a knife to stab someone who had no weapon on him, the aggressor would have intended to kill or cause grievous bodily harm on his victim. Evidence showed that the deceased was not armed, page 19, line 3. He submitted that the evidence of PW1, who was an eye witness, was not controverted nor was it contradicted. He canvassed the view that the act of the accused/appellant was done intentionally to kill the deceased or, at least, cause him grievous bodily harm, citing Aiguoborueghian v. State (2005) 1 NSCC 458, 475 F-G.
He observed that, in the instant case, there was evidence that the accused person used a knife, called 'Makeje' (do not touch blood), to strike his victim, the deceased. He explained that, by the evidence on record, the deceased person was pleading with the appellant, who was ready to fight one Adekunle, the deceased person's brother, before the appellant stabbed him, even as he was unarmed. PW1 said while discussion was going on between the deceased person and the appellant, he brought out a knife and stabbed the deceased person who fell down outside the building.
He was emphatic that, from the above scenario, the only inference which could be drawn, was that the appellant intended to kill or cause the deceased person grievous bodily harm. He, further, maintained that intention could be inferred from the conduct of the appellant even after he had stabbed the deceased person. PW1 said at pg 18 lines 18-21: "in my presence, the accused brought a knife and stabbed my son, Sunday, who fell down outside the building. When the other son of mine saw this development; he then came. The accused then ran away." He, therefore, submitted that the prosecution proved all the elements of the offence charged.
Counsel disclaimed the availability of the defence of alibi to the appellant. This is because PW1 was an eye witness to the crime. She knew the appellant very well before the incident. She saw the appellant committing the crime, page 17 lines 18-19 of the record of proceeding. He drew attention to the testimony of the appellant under cross examination at page 35, lines 15-17. He contended that once the accused person and the PW1 knew each other very well, the issue of identification was no longer in doubt. Comfort Ayodele was the PW1 and she said this at the earliest time. It was, therefore, not true that the appellant was not at the scene or not the person that committed the crime. He submitted that when the evidence of a witness was cogent and direct and pointed irresistibly to the commission of the offence, the court could convict on that evidence of a sole witness.
He prayed in aid the authority of Yahaya v. State (2005) 1 NCC 120, 144 E-G. Counsel submitted that the evidence of PW1 was not challenged nor was it discredited under cross examination. He submitted that the testimonies of the defence witnesses could not avail the appellant as they could not disclose where he was throughout that day. He maintained that there was no other possibility or evidence that it was not the appellant who committed the offence. He contended that the appellant could have called Ejiro, his brother, whom he claimed fought the deceased to show that he, the appellant, did not fight the deceased. The said Ejiro did not die, according to DW2 at page 37 line 5 of records.
In his view, there were no ambiguities or inconsistencies in this case to warrant this court determining this appeal in favour of the appellant. Equally, there was no reasonable ground for invoking the provision of section 149 (d) of the Evidence Act 1990, now section 167(d) of the Evidence Act 2011 (as amended), against the prosecution. On the contrary, the provision was better invoked against the appellant for not calling Ejiro to testify on his behalf. He noted that the lower court closed the prosecution's case when it was still trying to gather other witnesses. He urged the court to resolve this issue in favour of the respondent.
RESOLUTION OF THE ARGUMENTS ON ISSUE ONE
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 died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, see, for example, Woolmington v. DPP  AC 462; Hyam v. DPP  2 All ER 41; R v. Hopwood (1913) 8 Cr. App. R. 143, [England].
The Nigerian cases on these ingredients include: Madu v. State  15 NWLR (pt 1324) 405, 443, citing Durwode v. State  15 NWLR (pt 691) 467; Idemudia v. State  FWLR (pt 55) 549, 564;  7 NWLR (pt. 610) 202; Akpan v. State  FWLR (pt 56) 735;  12 NWLR (pt 682) 607. Elsewhere in the Commonwealth, the courts have, similarly, upheld these ingredients, 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  Qd. R. 225, [Queensland, Australia].
In the recent decision of Madu v. State (supra) at page 443, the Nigerian Supreme Court provided further insights into the nature of the duty on the prosecution. Speaking for the apex court, Ariwoola JSC opined that:
...in a murder charge, prosecution owes it a duty to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not it could have caused death.
The erudite and distinguished jurist cited, with approval, Ubani and Ors. v. State  FWLR (pt 191) 1533, 1545;  18 NWLR (Pt 851) 224; Godwin Igabele v. The State  3 SCM 143, 151;  6 NWLR (pt 975) 100; Alewo Abogede v. State  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. Chukkol, 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; O. Olanipekun, "The 'Actus Reus' 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.
In this jurisdiction, Ondo State, where this appeal emanated from, the relevant Code provision is section 315 of the Criminal Code Law, Laws of Ondo State. Like the code provisions in other jurisdictions, the section provides that "[a]ny person who unlawfully kills another is guilty of an offence which is called murder or manslaughter according to the circumstances of the case." The same law prescribes the punishment for the said offence in section 319 (1) thus "subject to the provisions of this section any person who commits the offence of murder should be sentenced to death."
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, Ogba v. State  2 NWLR [pt 222] 16, 168; Obade v. State  6 NWLR (pt 198) 435, 456; Godwin Igabele v. The State (supra) at page 106.
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 59 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; DW2, it found as a fact that "Sunday Ayodele - the deceased - died on 25/12/2003. This finding and conclusion establish the first element of the offence of murder and that is that the deceased, Sunday Ayodele, has died. The Prosecution has, therefore, proved this ingredient beyond reasonable doubt," [page 58 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 know Sunday Ayodele who was my son. I know the accused person. The accused and my family were living in the same house before. I later myself and my family left for Kajola Street. The accused was coming to us at Kajola Street... In my presence, the accused brought a knife and stabbed my son Sunday who fell down outside the building...The deceased fell flat on the floor, he could not get up. He died in the hospital... I was present when the accused stabbed the deceased. There was no fight between the deceased and the accused. The deceased was placating the accused in respect of his brother - Adekunle. The deceased held nothing before he was stabbed by the deceased (sic). He had just been worked up. He had only towel on. He used a knife called "Makeje" (do not touch blood) to stab the deceased... the deceased had now been buried.
[pages 18-19 of the record]
The PW2; DW1 and DW2 all agreed that Sunday Ayodele was dead. It was against that background that the court found that the first ingredient had been established. It stated thus on page 58 of the record:
The above piece(s) of evidence, without doubt, established clearly, one issue, that Sunday Ayodele died on 25/12/2003. In the light of the foregoing, this court finds as a fact and so hold (sic) that Sunday Ayodele - the deceased- died on 25/12/2003.
This finding and holding establish the first element of the offence of murder and that is that the deceased, Sunday Ayodele, has died. The Prosecution has therefore proved this ingredient beyond reasonable doubt.
We, equally, endorse the above findings of the lower court. We 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 resulted from the act of the accused person, pages 11-63 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. In particular, it believed the direct eye witness of PWL who, vividly, narrated how the deceased met his untimely death in the hands of the appellant.
Counsel for the appellant had argued that "there is no evidence of the cause of death. The alleged 'Makeje Knife' used to kill the deceased was never brought to court for identification or as evidence..." He cited the case of Aiguoreghian v. State (supra). With due respect, this argument is not well-taken.
We are emboldened in our view that the lower court's approach is irreproachable from the position of binding authorities. Only some of them will be referred to here. In Mohammed Garba v. State  12 NWLR (pt 632) 596;  4 SC (pt 11] 157; (2000) LPELR-SC.157/1999, Mohammed JSC held that:
The failure to produce the murder weapon during the trial is, in my view, inconsequential. It is the intentional murderous assault on a vital part of the body, which leads to conviction... There can be no doubt that a person delivering a violent blow with a stick or club on a vulnerable part of the body such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the consequence of his act.
The court had, earlier, in Bwashi v. State  6 SC 93 held that where the cause of death was obvious, medical evidence ceased to be of any practical or legal necessity in homicide cases. Such situations arise where death was instantaneous or nearly so, Jeremiah v. State  14 NWLR (pt 1320) 248,274, paragraph G.
Here, there was the direct evidence of PW1 who, both in her in evidence-in-chief and cross-examination maintained that the appellant killed the deceased in her presence. For example, on page 18 of the record, she said "in my presence, the accused brought a knife and stabbed my son Sunday who fell down outside the building... The deceased fell flat on the floor, he could not get up. He died in the hospital... I was present when the accused stabbed the deceased..." Under cross-examination at page 19, she insisted that "the stabbing was in my presence. I saw the accused stabbed (sic) my son, the deceased..." The lower court believed this direct evidence. We see no reason for disturbing the conclusion of the court on this.
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 charge, Effiong v. State  8 NWLR (pt 562) 362; Akindipe v. State  16 NWLR (pt 1325) 94, 116, paragraph C. As was held in Ahmed v. State (2001) LPELR-SC.27/2001;  18 NWLR (pt 746) 622;  12 SC (pt 1) 135, "cause of death is always a fact in issue in a case of homicide that fact may be proved by direct evidence or by circumstantial evidence. Direct evidence is evidence of fact in issue. When it is testimonial evidence, it is the evidence of a witness who claims personal knowledge of the fact he testifies about," [italics supplied]. In Bakuri v. State  NMLR 163, cited with approval in Ahmed v. State (supra), the deceased person was stabbed in the abdomen with a knife. He died on the spot. The Supreme Court held that "in cases of this nature, where a man was attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death; it can, properly, be inferred that the wound inflicted caused the death, also, Adamu v. Kano NA  SCNLR 65; Azu v. State  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 he was not present when his brother was stabbed", [paragraph 4.29 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 her testimony. Hear the position of the court on page 66 of the record:
It is quite clear that this court relied solely on the evidence of the Prosecution witness number one, that is, Comfort Ayodele, who was an eye witness to the dastardly act of the accused when he stabbed Sunday Ayodele [who] fell down and died consequently. It is settled law that the evidence of a single witness if believed by the court can establish a criminal case (even) if it is a murder charge.
The court placed reliance on Onafowokan v. State  3 NWLR (pt 61) 538, 552; Alonge v. IGP (1959) 4 FSC 203; Okosi v. State  1 CLRN 29, 48.
Counsel for the appellant sought to make the identity of the accused person an issue in this appeal. In paragraph 4. 23, [page 7 of the brief], he contended that the prosecution "failed to call any witness to corroborate the testimony of PW1. This is in spite of PW1's evidence that one of his (sic, her) sons witnessed the attack and killing of the deceased by the appellant." Counsel submitted "that if this son had been called as a witness, his evidence would have resolved the identity of the killer. The trial court ought to have invoked the provisions of section 149 (d) of the Evidence Act against the prosecution for deliberately shielding the evidence of the son from the court," [italics supplied].
In our view, there is no merit in this argument. Only recently, Ngwuta JSC, delivering the leading judgement in Akindipe v. State (supra, a judgement delivered on June 15, 2012), held that:
The presumption in section 149 (d) [supra] relates to 'evidence which could be, and is not, produced' rather than a witness who could be, and is not, called... The emphasis is on the evidence and not on the witness except where it is demonstrated that a piece of material evidence could have been given by a named witness and no other witness and the said witness was not called by the prosecution... in all criminal trials, the prosecution is not obliged to call any number of witnesses to prove its case. A single witness, if believed by the court, can establish a criminal case even if it is a murder charge, see, Effiong v. State...
[Italics supplied for emphasis]
What is more, in this case, the identity of the accused person was never in dispute as the appellant's counsel wanted this court to believe. From the PW1's evidence-in-chief and cross-examination, we entertain no doubt that her acquaintance with the appellant was more than a fleeting one. For example, during her cross examination, on page 19 of the record, she stated thus "I know the accused very well. Myself and the family have lived together at Obolo Street, Okitipupa. lt is over ten years now I have known the accused... He was coming to our house to visit her (sic, his) girl friend..." It is, therefore, with profound humility that we hold, in the words of Ngwuta JSC, that "counsel for the appellant misconstrued the provision [section 149 (d)] he so heavily relied on in his brief," Akindipe v. State (supra) at 115.
There was, also, a weak-kneed attempt to stricture the judgement of the lower court on the ground that "the evidence of the two prosecution witnesses are fraught with contradictions and obvious inconsistencies," [paragraph 4.25, page 8 of the brief]. Counsel drew attention to pages 6; 18 and 19 of the record. We have, carefully, perused the above pages of the record. We are not persuaded that "the evidence of the two prosecution witnesses are fraught with contradictions and obvious inconsistencies." If any authority is required in vindication of our conclusion, we refer to Theophilus v. State  1 NWLR (pt 423) 139, which the apex court, approvingly, relied on in Akindipe v. State (supra) at 113 for the view that:
Though there may be some elements of contradictions and inconsistencies in evidence of witnesses at a trial, only those contradictions and inconsistencies shown by the appellant to be substantial and fundamental to the main issue before the court can lead to a reversal of the judgement appealed against. Minor discrepancy or disparity between o previous written statement and subsequent testimony in court will not destroy the credibility of the witness
[Italics supplied for emphasis]
The court, also, emphasized that "it is out of touch with reality to expect one hundred percent accuracy in the recollection of each of two people who observed the same incident simultaneously even a few minutes thereafter," [page 113]. We, therefore, do not agree with the submissions of the appellant's counsel on this point.
There was a cruel irony here. PW1 gave the name of the knife which the appellant used on the deceased as "Makeje" (do not touch blood). However, the appellant's knife did the unusual. The lower court traced the cause of the deceased person's death to the 'Makeje' which the appellant stabbed him with.
So, ironically, the knife which, ordinarily, in the cosmology of the people of the locality, should not touch blood, had cut down human life at its prime! The court proceeded thus on page 63:
In the case in our hand, evidence was proffered by the Prosecution to the effect that on 25/12/2003, the accused person stabbed the deceased with a knife, fell down and could not move. He died on the same date (25/12/2003) immediately after being stabbed by the accused with a knife. The case Bakuri v. State (supra) is very apposite. Therein it was held that where a man is hit by a lethal weapon and he dies on the spot, it follows that the act of hitting caused the death and it is hardly necessary to prove the cause of his death by medical evidence. It is obvious that the cause of the death was the stabbing done by the accused with the use of knife. This court found as a fact that the accused stabbed the deceased. The deceased died immediately he was stabbed by the accused. Flowing from this, this court is of the view and so hold (sic) that medical report of (sic) medical evidence is not necessary to determine whether it was the act of the accused that caused the death of the deceased. In the light of the above premises, this court holds that the Prosecution has succeeded in establishing the second element of the offence that is, that the death of the deceased resulted from the act of the accused.
We agree with the lower court's inference that the deceased person's death was a probable, and not just a likely, consequence of the accused person's act of using "Makeje" (do not touch blood) on the deceased. The learned author, P. Ocheme, The Nigerian Criminal Law, Ibidem page 203, rightly in our view, observed, relying on Adamu Garba v. The state  3 SCNJ 68, that "[i]f a dangerous weapon such as an iron bar or a dagger or a gun, was used, the courts will infer that death is a probable and not just a likely consequence of the accused person's act;" also, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 221. In Goros Bwashi v. State  6 SC (Reprint) 55; (1972) LPELR-SC.104/1972, the weapon used was a knife.
We, equally, endorse the lower court's statement of the law with regard to medical evidence in the circumstances of this case. The authorities on this point are legion: they are many. Only a handful of them will be cited here. In the first place, there is authority for the view that where a person dies on the spot as a result of the act of another person, the absence of medical evidence would not be fatal to the case of the prosecution, Adamu v. Kano Native Authority (1956) SCNLR 65; Mgbeko v. State  2 SC 1; Akinfe v. State  3 NWLR (pt 85) 729.
Even then medical evidence is not indispensable where there are facts which, sufficiently, show the cause of death to the satisfaction of the court, Onwumere v. State (1991) LPELR-SC.67/1990;  4 NWLR (pt 186) 428;  5 SCNJ 150;  5 SC 148, citing Lori v. State  8-11 SC 81; Osarodioan Okoro v. State  5 NWLR (pt 94) 255, 289. As Akpata JSC explained in Onwumere v. State (supra), "Bwashi v. State (supra) clearly underlies the fact that the cause of death may be inferred from other evidence." The apex court has affirmed this position over and over again. Thus, in Amusa v. State (2003) LPELR SC.336/2001;  4 NWLR (pt 811) 595;  1 SC (pt 11) 14, the court held that a court can infer the cause of death from the circumstances of the evidence adduced before it, per Onu JSC, citing Adekunle v. State  5 NWLR (pt 123) 505, 516; Peter v. State  3 NWLR (pt 496) 525; Lori v. State  8-11 SC 81. We, therefore, agree with the lower court that the Prosecution succeeded in establishing the second element of the offence, that is, that the death of the deceased resulted from the act of the accused, Bwashi v. State (supra); Onwumere v. State (supra); Adamu Garba v. The State.
The court dealt with the third ingredient of the said offence on pages 63-65 of the record. In doing so, it examined the cases that have interpreted section 316 (2) of the Criminal Code which, on page 64, the court observed "restates the general proposition that for a conviction for murder, proof of intent to kill or cause grievous harm is sufficient." It placed reliance on several cases. At page 65 of the record, it concluded that:
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 by stabbing the deceased with a knife on 25/12/2003 was intentional and with knowledge that death or grievous harm was its probable consequence. The stabbing was intentional, the accused knew that the stabbing 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: Hamlyn 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.
However, by the operation of the impregnable doctrine of stare decisis, we are bound by the approach of the apex court on this matter. In Garba and Ors. v. State  6 NWLR (Pt 661) 378, 388, for example, the apex 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, also, Adamu Garba v. State  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  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 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 57 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, Aigbadion v. State  7 NWLR (pt 666) 686; Agbo v. State  6 NWLR (pt 977) 545; Igobele v. State  6 NWLR (pt 975) 100; Kim v. State  4 NWLR (pt 233) 17; Ubani v. State  18 NWLR (pt 851) 224; Ameh v. State  6-7 SC 27. On the contrary, it has been held that the expression "proof beyond reasonable doubt" is a concept founded on reason, rational and critical examination of a state of affairs and law rather than in fancied, whimsical or capricious and speculative doubt, Akindipe v. State (supra) at 114; State v. Onyeukwu  14 NWLR (pt 893) 340. In Bakare v. State (1987) LPELR- SC.242/1985, Obaseki JSC opined, most poignantly, that:
Proof beyond reasonable doubt means proof of an offence with the certainty of the Criminal Law. That certainty is that the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt.
Finally, the court held that no other defence, "whether of accident, provocation, insanity or self-defence was raised by the accused person. Neither did the submission of the defence counsel raised (sic) or contain any of the defence(s) capable of defeating criminal responsibility on the part of the accused in respect of the crime of murder," page 66 of the record. We agree with this conclusion. In circumstances not too dissimilar with the present one, Karibi-Whyte JSC, in Bakare v. State (supra), put it in this succinct manner:
The intention to kill or to cause grievous bodily harm, in this case demonstrated by stabbing the deceased... with a dagger, which resulted in death will be, and in this case was, sufficient to establish the offence with which appellant was charged, Gwoji lire v. State (1965) NNLR 52
According to His Lordship:
It is clear from the evidence that at the close of the case for the prosecution, the prosecution had discharged the burden that the deceased died from the intentional or reckless act of the appellant. The burden now shifted on to the appellant to establish on the balance of probabilities, circumstances of exculpation, such as accident, self defence, insanity, etc... Police v. Anozie (1954) 21 NLR 29. The only evidence adduced by appellant having not been believed the burden of proof on him was not discharged. The onus did not shift again to the prosecution and the prosecution will now be taken to have proved its case beyond reasonable doubt. Since the story of the appellant was not believed there was no evidence upon which to compare, in the totality of the case, and consider the existence of a reasonable doubt with respect to the guilt of the accused. See R. v. Oshunbiyi (1961) 1 All NLR 453. The court... was therefore right in holding that the case was proved beyond reasonable doubt.
In consequence, we endorse the approach of the lower court on this third element. In all, we resolve the first issue against the appellant.
Whether the trial court properly directed itself in dismissing the alibi raised by the accused person when there is nothing placed before the Court to debunk same?
Learned counsel drew attention to the extra-judicial statement which the appellant volunteered to the police, "exhibit A," pages 13-15 of the record where he stated that he was not at the scene of crime at the time of the fight. The appellant, also, confirmed this in his testimony at the tower court, at page 34. This was confirmed by the PW3 at page 37. This piece of evidence was confirmed under cross examination.
Counsel explained that these pieces of evidence which corroborated the appellant's alibi were neither shaken nor contradicted by the prosecution. There was, equally, no evidence placed before the court that the alibi was investigated. It was never debunked. He submitted that a plea of alibi was a defence that placed the accused at the relevant time of crime in a different place from the scene of crime and so removed there-from as to render it impossible for him to have committed the offence, citing Eze v. State  1 SC 125.
He contended that the police had a duty to investigate the alibi put forward by the appellant. It was not the duty of the accused to prove the alibi once it was raised at the earliest opportunity, Onuchukwu and Ors. v. State (1998) 4 NWLR (pt 547) 576. He maintained that failure to so investigate it rendered any conviction unsatisfactory as the case would not have been proved beyond reasonable doubt, Nwogu v. State  4 NWLR (pt 35) 438. In effect, the onus was on the prosecution to disprove the alibi, Aiguoreghon v. THE State (supra) 401 and 410.
He submitted that where an accused person raised an alibi, it should be investigated to know its veracity and authenticity. The duty of investigating and disproving the alibi was not that of the court called upon to adjudicate on the case. An alibi properly raised can only be controverted by reliable and positive evidence by the prosecution, Uboni v State  18 NWLR (pt 85) 224 at 250.
In the instant case, the alibi was never investigated and no credible and reliable evidence was put forward by the prosecution to debunk it, Aiguoreghian v. State (supra) 42. In conclusion, he submitted that the prosecution did not discharge the burden placed on it to prove beyond reasonable doubt the guilt of the Appellant in this case. He urged the court to nullify the said judgment for placing reliance on extraneous matters, inadmissible evidence and or witnesses who lacked credibility like PW1.
He urged the court to overrule the findings of the trial court at page 60 of the record. He submitted that there was no contradiction in the evidence of the defence witnesses. He urged the court to set aside the said judgment. He also prayed for an order discharging and acquitting the appellant in respect of the offence of murder filed against him at the trial court.
Counsel for the respondent submitted that the defence of alibi could not avail the appellant. As such, the trial court was right when it dismissed that defence. He explained that the prosecution called two witnesses who testified on its behalf. In their evidence, they testified that they knew the appellant very well. They had lived together in the same house. He maintained that the evidence of PW1 at page 17 line 19 of record, PW1 was not controverted or discredited.
He contended that the defence of alibi is defeated when prosecution evidence fixes an accused person at the scene of crime, citing Yanok v. State (2005) 4 ACLR 175, 182. He canvassed the view that since the appellant and the prosecution witness one, Mrs. Comfort Ayodele, knew each other very well; there could not have been any mistaken identity. The evidence of PW1 fixed the accused at the scene of crime. He explained that, after the trial court had weighed the evidence of the prosecution witnesses against that of the defence, it came to the conclusion that the defence of alibi was weak as against the stronger evidence of the prosecution. He maintained that the evidential burden of proving the defence of alibi rested on the appellant. He urged the court to regard the defence of alibi as a planned strategy to enable him raise that defence as a cover up.
RESOLUTION OF ISSUE
On pages 6-7 of the brief, counsel sought to impugn the conviction of the appellant on the ground that DW2; DW3 and DW4 confirmed the story of the appellant that he was not at the scene of crime. With respect, this submission is not borne out of the records. The court, most painstakingly, scrutinized the testimonies of these witnesses on pages 59-60 of the record. The court did not believe their testimonies. Listen to this:
Can this court believe the evidence of the accused to the effect that he was at home on the day of the incident taking into consideration - the contradiction in the evidence of the accused and his witnesses as regards his whereabouts at the time material to this case? If the accused said he was with his wife at that time and the DW3 and DW4 testified [that] he was with DW4 in DW4's home at the material time, these is (sic), is a contradiction. A contradiction that goes to the root of the accused [person's] plea of alibi...
As against the above testimonies, on page 61 of the record, the court offered insights into why the PW1's account should dismantle the combined testimonies of DW1; DW2; DW3 and DW4. It held that:
The evidence of the PW1 [,] who was at the scene of crime [;] who saw the accused at the scene of crime at the material time [,] to the effect that that the accused was at the scene of crime at the material time [,] which this court do believe in its entirety [,] clearly displaces and demolishes the evidence of the accused that he was at home at the material time. The evidence and the defence of alibi of the accused person collapses (sic) in the circumstances. The defences is (sic) totally destroyed. It (sic) cannot stand. It is (sic) bound to collapse like of pack of cards. Against this background, this court finds as a fact that the accused was at the scene of the crime at the time material to this case.
[italics supplied for emphasis]
In our view, counsel's spirited efforts to impeach these findings were exercises in futility. From the above excerpts, it is obvious that the lower court believed the evidence of PW1 fixing the appellant at the scene of crime. On our part, in view of the court's findings with regard to the shifting depositions of the DW1; DW2; DW3 and DW4, on the whereabouts of the appellant at the material time, we, too, endorse the findings fixing the appellant at the locus criminis at the material time. We take the view that, in the circumstances, the findings are unimpeachable, see, per Akpata JSC in Obakpolo v. State  1 SCNJ 91, 107-108; (1991.) LPELR-SC.155/1989;  1 NWLR (pt 165) 113;  1 SC (pt 1) 35. In our humble view, the cases of Ubani and Ors. v. State (supra) and Aighoreghian v. State (supra), cited on page 7 of the appellant's brief, are inapposite. There was no ambiguity in the testimony of PW1 fixing the appellant at the scene of crime. That settles issue two on the defence of alibi.
In all, for the reasons adduced above, we take the humble view that the lower court, on the evidence before it, rightly, convicted the appellant. We find no justification for disturbing its findings. In consequence, we hold that this appeal is bound to, and is hereby, dismissed. We, hereby, affirm the judgement of the lower court. Appeal is hereby dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: My learned brother, NWEZE, JCA has painstakingly considered the issues submitted for determination in this appeal. I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
One of the issues that agitated the mind of the appellant in this appeal is the fact that the learned trial Judge placed heavy reliance on the evidence of PW1, the mother of the deceased who was an eyewitness to the commission of the crime in convicting him. It was argued on his behalf that there ought to have been some independent evidence to corroborate the evidence of PW1 having regard to her relationship to the deceased.
The duty of the prosecution in a criminal trial is to establish the guilt of the accused person beyond reasonable doubt. In discharging this burden the prosecution is not obliged to call any number of witnesses or a host of witnesses. The evidence of a single witness, if believed by the court is sufficient to establish the offence, even the offence of murder. The decisive factor is the quality of the evidence adduced. See: Akindipe v. The State (2012) 16 NWLR (1325) 94 @ 116 C-D; Effiong v. The State (1998) 8 NWLR (562) 362. It has been held that where the evidence led in a case is reliable and true in fact, the fact that the witness had a grouse against the accused person would not weaken the validity or credibility of his evidence so long as the trial court found it to be direct, unassailable and true. See: Akindipe v. The State (supra) at 117 C-D; Ogunlana v. The State (1995) 5 NWLR (395) 266.
In the instant case, the fact that PW1 was the mother of the deceased without more would not render her evidence unreliable. Her testimony as to how she saw her son being stabbed by the appellant and dying shortly thereafter in the hospital was clear and unequivocal. She also testified that she had known the appellant for over ten years, as they had lived together on the same street. Her evidence was unshaken under cross-examination. There was no suggestion put to her throughout the trial that she might have had a previous grouse against the appellant to warrant her testifying against him. In spite of the trauma of witnessing her son being murdered she gave a credible account of what she witnessed. The learned trial Judge believed her. From the facts and circumstances of the case, and for the more detailed reasons contained in the lead judgment I agree with my learned brother that the appellant has not satisfied us that the learned trial Judge failed to properly evaluate the evidence before him, I am satisfied that the prosecution established its case against the appellant beyond reasonable doubt and the learned trial Judge rightly convicted and sentenced him accordingly. I therefore dismiss the appeal and uphold the conviction and sentence of the appellant for murder by the lower court.
CHINWE EUGENIA IYIZOBA, J.C.A: I have had the privilege of reading before now the judgment just delivered by my learned brother C. C. Nweze JCA. I agree that there is no merit in this appeal and that the appeal ought to be dismissed.
The prime witness for the prosecution PW1 is the mother of the deceased. The learned trial judge believed her eye witness evidence that the deceased died from the stab wound inflicted on him by the appellant with a "makeje knife". The appellant is well known to PW1. She testified that her family and the appellant had previously lived in the same house. The possibility of confusion as to his identity was therefore non-existent. The contradiction in the evidence of the appellant and his other witnesses as regards the alibi he set up did not help his case. The court disbelieved their evidence. Contrary to the contention of the appellant, there is no law requiring corroboration of the evidence of PW1 because of her relationship with the deceased. See Omotola & Ors. v. The State (2009) LPELR-2663(SC), (2009) 7 NWLR (Pt 1139) 148 where the Supreme Court held that the fact that a witness is a relation of the deceased can only make a court circumspect in the reception of his evidence and to treat such evidence with caution. The evidence is certainly not thereby rendered inadmissible nor does it require corroboration. See also Onafowokan & Anor. v. The State (1986) 2 NWLR (Pt. 23) 496.
It is for the above and more detailed reasons contained in the lead judgment that I too dismiss this appeal and affirm the judgment of the lower court.
Abayomi Ojo For the Appelants
Oye Fredrick For the Respondents