OGBEMUDIA OMORUYI

V.

THE STATE

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 22ND DAY OF MARCH, 2016

CA/B/368CB/2010

LN-e-LR/2016/47 (CA)

OTHER CITATIONS

(2016) LPELR-40133(CA)

BEFORE THEIR LORDSHIPS

JIMI OLUKAYODE BADA, J.C.A

MUDASHIRU NASIRU ONIYANGI, J.C.A

UGOCHUKWU ANTHONY OGAKWU, J.C.A

BETWEEN

OGBEMUDIA OMORUYI Appellant(s)

AND

THE STATE Respondent(s)

REPRESENTATION

Mrs. S. N. Ebojele with Mrs. E. Bello For Appellant

AND

Chief V. E. Otomiewo with him, D.O. Jarikre, Esq. and E. D. Otomewo, Esq. For Respondent

[EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]

MAIN JUDGMENT

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment):

EXORDIUM

Before the High Court of Edo State in Charge No. B/57C/2006, the Appellant and eight others were arraigned on a three count charge of conspiracy to commit murder and the murder of two persons. In the course of the trial at the Lower Court the 1st, 2nd and 9th accused persons were discharged at the close of the case for the prosecution, upon the success of their no case submission. The remaining six accused persons entered upon their defence and in its judgment delivered on 23rd July, 2010, the Lower Court Coram: C. O. Idahosa, Chief Judge, discharged and acquitted three of the accused persons while the Appellant, who was the 4th accused person at the trial and two other accused persons were convicted as charged and sentenced to death by hanging. The judgment of the Lower Court is at pages 394 - 471 of the Main Records of Appeal.

Miffed at the judgment, the Appellant appealed against the same on 27th July, 2010. The said Notice of Appeal is at pages 488 - 492 of the Main Records. In addition to the Main Records of Appeal, there is a First Supplementary Record of Appeal and a Second Supplementary Record of Appeal. The said Records which were transmitted in respect of a sister appeal were by Order of Court made on 11th November, 2014 directed to be used for this appeal.

As disclosed by the Records, the facts on which the Appellant and others were arraigned and tried are as follows:

“On the fateful day of the incident which resulted in the Charge, one of the deceased persons, Chief Sunday Ahanor, went to the Palace of the Oba of Benin and while he was there, the PW4 his driver, came to report to him about a padded red Mercedes Benz 190 which was parked close to the Obaýs Palace and in which he saw the Appellant and one other accused person, among some other persons who covered their faces with handkerchief. Chief Sunday Ahanor instructed him to observe the said vehicle and its occupants. Later Chief Ahanor arranged for another Chief (PW1) who was at the Palace to take him to the office of the Asst. Inspector General of Police (AIG) so that he could lodge a report. After the deceased left the Oba’sPalace for the AIG’s”

Office one of the accused persons left the said padded red Mercedes Benz car and walked into the Palace to spy if Chief Ahanor was still there. The PW4 then called Chief Ahanor at the AIG’s Office to inform him about this and he, the deceased Chief Ahanor, instructed him to charter a commercial bus and come to meet him at the AIG’s Office.

A commercial bus, driven by the PW2 was duly chartered and they met the deceased, Chief Ahanor at the AIG’s Office where they were given five police officers to follow Chief Ahanor and arrest the persons in the padded red Mercedes Benz 190. Upon their arrival at the point where the vehicle was parked, the vehicle was no longer there and they then decided to retrieve Chief Ahanor’s Sport Utility Vehicle from the Oba’s Palace where it was parked so that they could escort him to his house. The Sport Utility Vehicle was driven by the PW4 who was joined by a Police Officer while the deceased Chief Ahanor and the other Police Officers remained in the chartered commercial bus.

As they approached the Street where Chief Ahanor lives, the PW4 saw the said padded red Mercedes Benz 190 coming from the opposite direction and he pulled over and called the attention of the occupants of the commercial bus to the said vehicle. As the padded red Mercedes Benz 190 drove past them, they decided to turn and pursue the said vehicle. In the course of the pursuit, they lost sight of the vehicle after which there was a sudden burst of gunfire which it was claimed came from the occupants of the padded red Mercedes Benz 190 and as a result of the shooting, Chief Sunday Ahanor and one of the Policemen with him in the chartered commercial bus, Corporal Ibrahim Adukwu, were killed while others sustained injury. These are the facts which led to the conviction of the Appellant by the Lower Court and the provenance for this appeal.

The Records having been regularised and in obeisance to the Rules of Court, the parties filed and exchanged briefs of argument. The extant Appellant’s Brief is the Amended Appellant’s Brief filed on 5th February, 2015 and deemed as properly filed and served on 20th January, 2016, wherein the Appellant distilled three issues for determination as follows:

1.       Whether the Learned Trial Judge properly evaluated the evidence led in this case.

2.       Whether the Learned Trial Judge was not wrong in dismissing the defence of alibi which was raised by the 4th accused/appellant.

3.       Whether the charges against the Appellant were proved beyond reasonable doubt to warrant a conviction."

The Respondents Brief of Argument was filed on 13th February, 2015 and a sole issue was therein formulated for determination, namely:

"Whether the evidence adduced by the Prosecution is cogent, convincing, compelling, admissible and sufficient to justify the verdict of guilt returned by the learned trial judge at the end of the trial of the Appellant for murder."

At the hearing of the appeal, Mrs. S. N. Ebojele, learned counsel for the Appellant adopted and relied on the Amended Appellant's Brief in urging the Court to allow the appeal. On his part, Chief V. E. Otomiewo, of counsel for the Respondent adopted and relied on the Respondent's Brief and he urged the Court to dismiss the appeal.

I have considered the issues for determination as distilled by the parties and it is limpid that the core of the issues as formulated is whether the prosecution discharged the onus of proving the offences charged against the Appellant beyond reasonable doubt to warrant the conviction of the Appellant by the Lower Court. Accordingly, a distensible issue under which the issues distilled by the parties would be subsumed will suffice for the determination of this appeal. The issue which I find apt and bespoke and on the basis of which I would consider the submissions of learned Counsel and resolve this appeal is:

''Whether the Prosecution proved the offences charged against the Appellant beyond reasonable doubt so as to warrant his conviction by the Lower Court.''

SUBMISSIONS OF THE APPELLANT'S COUNSEL

The Appellant set out the elements to prove in a charge of murder which are that there was a killing, that the killing was unlawful and that the act or omission of the accused person caused the death of the deceased. The cases of IDIOK v. THE STATE (2008) 6 MJSC 36 at 45-46 and UWAGBOE v. THE STATE (2008) Vol. 163 LRCN 92 at 109 were referred to.

It was submitted that there was no evidence emanating from the prosecution to the effect that the Appellant had a common intention with others to commit the offence resulting in conspiracy. It was contended that there was no evidence on which the Appellant could be convicted for conspiracy as the only reference to the Appellant was by the PW4 who said that he saw him in a Mercedes Benz in front of the Oba’s Palace and that there was no credible evidence to prove that it was the same Mercedes Benz 190 seen in front of the Oba’s Palace that was used in committing the crime, since the prosecution evidence in that regard was contradictory. The contradictions in the testimony of the PW4, PW5 and PW7 were highlighted on Paragraphs 5.10 - 5.13 of the Appellant’s Brief and it was posited that the Lower Court’s explanation of the doubt created by the testimony of the prosecution witnesses did not arise from the evidence proffered by any of the witnesses. The Lower Court, it was contended, consequently descended into the arena especially as a Court should not substitute its opinion for the evidence adduced. The case of AHMED v. THE STATE (1999) 7 NWLR (PT 612) 641 was relied upon.

The Appellant maintained that the discrepancies in the evidence of the PW2 and PW4 on the one hand and PW5 and PW7 on the other hand which the prosecution did not explain created substantial doubt in the case. It was stated that it was not for a Court to pick and choose which set of prosecution witnesses to believe and which to reject in the light of contradictory evidence. The cases of ONUBOGU v. THE STATE (1974) 9 SC 1 and ASANYA v. THE STATE (1991) 3 NWLR (PT 180) 422 at 446 were cited in support. The said material contradictions, it was submitted ought to have been resolved in favour of the Appellant.

It is the further contention of the Appellant that the findings of the Lower Court were based on speculation and wrong conjecture and it was asserted that assumption is not proof of crime. The case of MOHAMMED v. THE STATE (1991) 5 NWLR (PT 192) 438 at 456 was referred to. The Appellant submitted that there was no evidence to support the finding of the Lower Court that it was the red Mercedes Benz 190 car earlier seen opposite the Oba's Palace that was also at the scene where the incident took place later in the day. It was stated that the decision of the Lower Court was based on circumstantial evidence which was not cogent, complete and unequivocal as to lead to no other conclusion than the guilt of the Appellant. The cases of KOR v. THE STATE (2001) FWLR (PT 76) 637, LORI v. THE STATE (1980) 8-11 SC 81 and OGIDI v. THE STATE (2005) 5 MJSC 155 at 189 were relied upon.

It is the submission of the Appellant that the evidence adduced was not positive, cogent, direct and unequivocal and did not show that he conspired with others to perpetrate the murder as there was no evidence of common intention or agreement between him and others to commit the offence. It was further submitted that there was no direct evidence fixing him at the scene of the incident and that his having been allegedly spotted in a red Mercedes Benz 190 car opposite the Oba's Palace did not place him at the scene of crime. It was therefore stated that the circumstantial evidence did not show a complete and unbroken chain of evidence to constitute sufficient and cogent proof. The case of ARCHIBONG v. THE STATE (2006) ALL FWLR (PT 323) 1747 at 1751 Ratio 6 was cited in support.

The Appellant contended that contrary to the finding of the Lower Court, there was no evidence establishing that the people that were seen in the Oba's Palace were the same persons who killed the deceased. On the Appellant's alibi, it was submitted that the evidence of the PW4 was that he saw the Appellant in front of the Oba's Palace and not the scene of crime; and that there was no iota of evidence placing the Appellant at the scene of crime in order to demolish his alibi. It was argued that the alibi raised by the Appellant, at the earliest opportunity, that he was at Standard Trust Bank, Akpakpava Road when the offence was committed was not investigated and that the benefit of the doubt ought to have been afforded the Appellant. The cases of AIGUOREGHIAN v. THE STATE (2004) 3 MJSC 71 at 89-90, DOGO v. THE STATE (2001) 1 SC and NWABUEZE v. THE STATE (1988) 4 NWLR (PT 86) 16 were referred to. The Appellant posited that proof beyond reasonable doubt means proof of an offence with the certainty of the criminal law, which is that an offence has been committed and that no other person but the accused person committed the offence. The case of BAKARE v. THE STATE (1987) 3 SC 1 at 5 was relied upon. It was conclusively stated that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt.

SUBMISSIONS OF THE RESPONDENT'S COUNSEL

The Respondent maintains that the case against the Appellant was proved beyond reasonable doubt, as the prosecution did not have to prove the case with absolute certainty. Proof beyond reasonable doubt was stated to admit of a high degree of cogency consistent with an equal degree of probability; that it did not mean proof beyond all shadow of doubt and once the evidence is strong enough to leave only a remote possibility in favour of the accused, then proof beyond reasonable doubt has been attained. The cases of ONAFOWOKAN v. THE STATE (1987) 2 NWLR (PT 61) 583 at 661, MOSES v. THE STATE (2003) FWLR (PT 141) 1969 at 1986 and ALAE v. THE STATE (1991) 7 NWLR (PT 205) 567 at 591 were referred to.

It was argued that conspiracy was proved beyond reasonable doubt as the evidence of the PW3, PW4, PW6 and PW10 showed the interconnectivity and meeting of the minds of the accused persons to create the unlawful act and that conspiracy can be inferred from the circumstances of the criminal acts of the accused persons. The case of ABACHA v. THE STATE (2002) FWLR (PT 118) 1224 at 1310 was cited in support. It was stated that the Appellant and one other accused person were identified by the PW4 as the boys of another accused person who had scores to settle with the deceased Chief Sunday Ahanor and the mastermind of the threat to the life of late Chief Sunday Ahanor. It was stated that the Appellant and the 5th accused person were with the suspected assassins who trailed the late Chief Sunday Ahanor with a red Mercedes Benz 190 and it was therefore opined that the evaluation of the evidence by the Lower Court in respect of the count of conspiracy cannot be faulted and that the evidence adduced by the prosecution proved the offence of conspiracy charged beyond reasonable doubt. It was asserted that an appellate Court will not interfere where the findings of a trial Court are supported by the available evidence. The cases of AFOLAKU v. THE STATE (2010) ALL FWLR (PT 538) and JOSEPH v. THE STATE (2010) ALL FWLR (PT 539) 1106 at 1117 were relied upon.

On the count of murder, the cases of GIRA v. THE STATE (1996) 44 NWLR (PT 443) 375 at 383, OGBA v. THE STATE (1992) 2 NWLR (PT 222) 164 at 535 (sic) and NDUKWE v. THE STATE (2009) ALL FWLR (PT 464) 1447 at 1466 were referred to on the proof required of the prosecution, id est, that the deceased died, that the death of the deceased resulted from the action of the accused and that the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.

It was submitted that there was no dispute that the deceased persons, Chief Sunday Ahanor and Corporal Ibrahim Adukwu died. On the death being as a result of the action of the accused persons, it was contended that the testimony of the PW3, PW4, PW5, PW6 and PW10 afforded circumstantial evidence which was overwhelming and irresistible against the Appellant. The Respondent argues that the alibi raised by the Appellant was worthless, especially as the Appellant failed to show any document or call any bank official in proof of the banking transaction he claimed to have been involved in on the day of the incident. The Court was urged to discountenance the alibi as a lie concocted to explain away the involvement of the Appellant in the death of the deceased persons. The cases of OREKEKAN v. THE STATE (2005) 4 ACLR 193 Ratio 16, ALLI v. THE STATE (1998) 1 SC 34 at 47 and OTEKI v. THE STATE (1986) 4 SC 222 at 249 were cited in support.

It was contended that the testimony of the PW3, PW4, PW5 and PW6 established that the death of the deceased resulted from the action of the accused persons. It was then posited that the act of the accused persons in shooting at the bus in which the deceased persons were was intentional with the knowledge that death was the probable consequence and that a man intends the natural and foreseeable consequences of his act.

The three ways of proving the commission of an offence namely by evidence of eyewitnesses, by confessional statement and circumstantial evidence were referred to and it was submitted that the prosecution proved all the ingredients of murder against the Appellant beyond reasonable doubt through the circumstantial evidence adduced in the case. The case of MOSES v. THE STATE (supra) at 1987 was cited in support. It was maintained that the circumstantial evidence adduced was cogent, complete, unequivocal compelling and led to the irresistible conclusion that the accused persons conspired and murdered the late Chief Sunday Ahanor. The case of ADEBAYO v. THE STATE (2007) ALL FWLR (PT 365) 498 at 519 was referred to. The Respondent maintained that the testimony of the PW3, PW6, PW7 and PW10 on the threat to kill Chief Ahanor was not hearsay as their evidence was direct.

RESOLUTION

The Appellant was convicted on all the three counts of the charge preferred against him. In convicting for conspiracy, the Lower Court after referring to the case of NJOVENS v. THE STATE (1973) NWLR 76 at 95 where it was held, inter alia, that " the gist of the offence of conspiracy is the meeting of the mind of the conspirators" and that conspiracy is inferred from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them, proceeded to reason as follows on pages 457 - 459 of the Records:

"There is evidence that the 3rd accused had a running battle with the deceased Chief Ahanor. The 3rd accused described the treatment he received in the hands of the late Chief Ahanor and his men on 13/04/2005, in his statement Exhibit F. In that statement, he said he was beaten to a state of coma by Chief Ahanor and his boys and then one of them urinated on him. In fact that act woke him up partially.

Although 3rd accused claimed that the late Chief Ahanor begged him and they resolved their differences in Exhibit F, the hatred and venom he had for the late Chief Sunday Ahanor can be seen in his next statement Exhibit G. In this statement, 3rd accused spoke about the late Chief in very unsavoury terms.

Through Exhibits F & G made by the 3rd accused, the prosecution was able to expose the mindset of the 3rd accused as far as the deceased Chief Sunday Ahanor was concerned.

There is evidence about the relationship between the 4th accused and the 3rd accused. 3rd accused did his utmost to distance himself from the 4th accused both in his statement Exhibit H and his oral testimony in Court. In spite of his efforts, the link between him and 4th accused came out clearly in Exhibit H. In that statement he agreed that 4th accused was one of his disciples and used to drive his traditional car, during ceremonies if he was chosen to drive.

Under cross examination by learned prosecuting Counsel, 3rd accused denied making some statements which he later admitted upon being shown these statements in his extra judicial statement in Exhibit F. He was shown as being inconsistent and unreliable during the cross examination. His continuous denials sounded hollow in the face of the statements he himself made in Exhibits F, G and H.

The 4th accused in his testimony in Court and under cross examination denied being the boy of the 3rd accused. But he later admitted that he was a worshipper at the shrine of 3rd accused and also drove the 3rd accused.

In Exhibit Z, i.e. the statement made by the 4th accused in respect of the investigation into the murder of one Chief Ehue, the 4th accused admitted being the driver of the 3rd accused.

The 4th accused and the 5th accused were clearly and positively identified by PW4 in the vehicle that was sued to stalk trial and finally assassinate or kill the late Chief Sunday Ahanor. The PW4 was positively, unequivocal and unshaken in his identification of 4th and 5th accused in the said vehicle. In spite of the rigorous and multiple cross examination by different Learned Counsel on this point, he remained unshaken.

As stated in the authorities, it is rare to find positive or direct evidence of conspiracy, and it is usually proved by circumstantial evidence and or inference from certain proved facts. Thus as ably stated in the case of Njovens & Ors v. The State supra, the completed act is usually the only proof of a conspiracy."

Now, conspiracy as an offence is the agreement by two (not being husband and wife) or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In HARUNA v. THE STATE (1972) 8 -?? 9 SC 108 or (1972) LPELR (1356) 1 at 23E - 24A, Fatayi-Williams, JSC (as he then was) stated as follows:

"Conspiracy as an offence is nowhere defined in the Criminal Code... It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition Paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code."

The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See OBIAKOR v. THE STATE (2002) 36 WRN 1 at 10, EGUNJOBI v. F.R.N. (2001) 53 WRN 20 at 54 and THE STATE v. OSOBA (2004) 21 WRN 113.

Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from the surrounding circumstances. See SULE v. THE STATE (2008) 17 NWLR (PT 1169) 33 and ADEJOBI v. THE STATE (2011) LPELR (97) 1 at 36B E. The circumstantial evidence on which a successful conviction for conspiracy can be predicted is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See ODUNEYE v. THE STATE (supra). The crucial factor in the offence of conspiracy is the meeting of the minds of the conspirators to commit an offence and the meeting of the minds need not be physical: ADEJOBI v. THE STATE (supra).

From the reasoning of the Lower Court quoted above the Court seems to have inferred conspiracy from the evidence that (1) the 3rd accused had a running battle with the deceased; (2) that the 3rd accused had hatred and venom for the deceased Chief Ahanor and spoke of him in very unsavoury terms; (3) that there was evidence of relationship between the Appellant and the 3rd accused; (4) that the Appellant was one of the boys of the 3rd accused, a worshipper at his shrine and who sometimes drove him (5) that the Appellant and 5th accused were clearly and positively identified by PW4 in the vehicle that was used to stalk, trail and finally assassinate or kill the late Chief Sunday Ahanor.

The Lower Court then concluded and held as follows at page 461- 462 of the Records:

"On the whole I find and hold as follows:

(i)      That the 3rd accused had a serious grudge against the deceased Chief Ahanor

(ii)     The 4th accused (Appellant) was or is still his driver, even though not full time.

(iii)    The 4th accused is a disciple at 3rd accused's shrine and one of his followers.

(iv)    The 4th and 5th accused were seen in a vehicle whose other occupants were more or less disguised as they wore face caps and tied handkerchiefs around their mouths.

(v)     This same car or vehicle was used later to stalk, trail ambush or block the late Chief Ahanor and Corporal Adukwu's vehicle, in which PW2 and 7 were also riding at that time.

(vi)    The assassins came out of the same vehicle seen by PW4 by the Oba’s Palace, still dressed as PW4 described i.e. with face cap and handkerchiefs tied around their mouths and nose.

(vii)   These persons fired their guns on the vehicle in which the two deceased were riding with PW2 and 7.

(viii)   That as a result of these gunshots the two deceased persons died.

Learned Counsel for 3rd accused during the cross examination of PW6, made assertions that the late Chief Ahanor had several enemies. However these suggestions or assertions were not backed with any form of evidence.

After due consideration I am satisfied that issue No. 1 be and is hereby resolved against the 3rd, 4th and 5th accused.

On count 1 on the charge, I am satisfied that the prosecution has proved the offence of conspiracy to commit murder against the 3rd, 4th and 5th accused persons, beyond reasonable doubt."

The critical question is whether the facts are of such a quality that irresistibly compels to make an inference as to the guilt of the Appellant on the charge of conspiracy. Put differently, do the facts as accepted by the Lower Court establish the charge of conspiracy beyond reasonable doubt? The focal point of the authorities is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See KAZEEM v. THE STATE (2009) 29 WRN 43 and SALAU v. THE STATE (2010) LPELR (9106) 1 at 35-36.

Now, how does the alleged grudge which the 3rd accused has against the deceased, even conceding that the matter had not been settled as stated by the 3rd accused, connote an inference of a common criminal design or agreement between the 3rd accused, Appellant and the 5th accused persons towards the realization of a common or mutual criminal purpose. I further ask how does the fact that the Appellant sometimes drives the 3rd accused and is one of the followers and disciples at the shrine of the 3rd accused qualify as a common criminal design between them as it relates to the deceased, Chief Sunday Ahanor. I find it difficult to appreciate how this can be so especially when regard is had to the fact as held in ODUNEYE v. THE STATE (supra) that securing a conviction for conspiracy is fraught with intricacies and inherent difficulties. More so, there is no specificity in the evidence that it was the same vehicle seen at the Oba's Palace that was seen on the road to the deceased Chief Ahanor’s house; no registration number was given and the evidence didn't disclose that there was only one padded red Mercedes Benz 190 in Benin City. The PW4 merely suspected that it was the same vehicle. Moreover, the evidence did not place the Appellant at the scene of crime.

The prosecution has a duty to prove its case beyond reasonable doubt. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion. See EKPE v. THE STATE (1994) 12 SCNJ 131, NAMSOH v. THE STATE (1993) 6 SCNJ (PT 1) 55 at 69, ADEBOYE v. THE STATE (2011) LPELR -9091 (CA)  at 31-33 and OGISUGO v. THE STATE (2015) ALL FWLR (PT 792) 1602. In the circumstances, I doubt and because I doubt the Appellant has to be given the benefit of that doubt. The available evidence is not of a quality that irresistibly compels to make an inference as to the guilt of the Appellant on the charge of conspiracy. Concomitantly, the conviction of the Appellant for the offence of conspiracy to commit murder is hereby set aside.

With regard to the conviction for the substantive counts of murder, the learned counsel on both sides of the divide have referred to the essential ingredients to establish in a charge of murder, namely:

1.       That the deceased is dead

2.       That the death of the deceased is the result of the act or omission of the accused person (the Appellant herein).

3.       That the act or omission of the accused person (Appellant) which has caused the death of the deceased is intentional with full knowledge that death or grievous bodily harm is the possible consequence.

See ILODIGWE v. THE STATE (2012) LPELR (9342) 1 and UWAGBOE v. THE STATE (2008) LPELR (3444) 1 at 29.

In order to secure a conviction for murder the prosecution must, inter alia, prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused person. From the facts of this matter there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased persons, Chief Sunday Ahanor and Corporal Ibrahim Adukwu are dead. The kernel of this appeal is with regard to the second element, id est, whether the death of the deceased resulted from the action of the Appellant. The Lower Court held that the prosecution proved the counts of murder beyond reasonable doubt. In finding the counts established against the Appellant, the Lower Court held as follows at pages 462 - 463 of the Records:

"The second issue deals with the two counts for the actual murder of the late Chief Sunday Ahanor and Corporal Ibrahim Adukwu.

The evidence against the 4th and 5th accused is positive, direct and unequivocal.

The PW4 told the Court how he chanced upon them where they lay in wait, at a point opposite the Oba's Palace on 15/11/15. He told the Court that the fact that he saw other persons who had face caps on their head and tied handkerchiefs over their mouths made him suspicious

...Then he saw 5th accused come out of the car and enter the Oba's Palace grounds, to spy whether the deceased Chief was still in the Palace.

PW4, it was who identified the car when the Police was taking the deceased Chief to his house. The convoy turned around to chase the car and ran into an ambush and a hail of gunfire.

There is evidence putting the 4th and 5th accused persons at the scene of crime from the place where they laid on wait by the Oba's Palace Benin City to the place where the two deceased were shot to death.

The PW4 was, positive direct and unequivocal and he was not shaken by the cross examination."

The Lower Court continued at pages 466 ý 467 of the Records and held as follows:

As had been shown, during the consideration of issue No. 1, the 4th accused (Appellant) had a link with the 3rd accused. The 3rd accused conspired with the 4th and 5th accused and others to kill the deceased Chief Sunday Ahanor. In the process they also killed Corporal Ibrahim Adukwu.

The Lower Court then conclusively held as follows at pages 469 - 470 of the Records:

On the whole, and after due consideration of the totality of the evidence led in proof of counts II and III as laid, I am satisfied and I find and hold as follows:

(i)      That the 3rd, 4th and 5th accused conspired together to kill or murder the late Chief Sunday Ahanor.

(ii)     That the two deceased persons viz Chief Sunday Ahanor and Corporal Ibrahim Adukwu were fatally shot and killed by 4th and 5th accused and others at the behest of 3rd accused.

(iii)    That the 4th and 5th accused in furtherance of the common design to kill the late Chief Ahanor laid in wait for him outside the Oba of Benin Palace.

(iv)    That PW4 saw 4th and 5th accused in a red Mercedez Benz 190 car lying in wait for the late Chief Sunday Ahanor.

(v)     That after waiting for a long time, the 5th accused went into the Palace to see if the late Chief Sunday Ahanor was still in the Palace.

(vi)    That 4th and 5th accused and other tracked the late Chief Sunday Ahanor to his house and also laid in wait, somewhere near his residence.

(vii)   That ultimately 4th and 5th accused and others ambushed him and others and shot him and Corporal Ibrahim Adukwu to death.

In view of all the above findings issue No. II is hereby resolved against the 3rd, 4th and 5th accused. In the result they are found guilty of counts II and III and they are hereby convicted accordingly."

Let me hasten to state that I have already held that the evidence does not establish the charge of conspiracy charged beyond reasonable doubt. Accordingly, the common design which the Lower Court held existed between the Appellant and the 3rd and 5th accused persons is not made out on the evidence.

The burden on the prosecution is to prove its case beyond reasonable doubt. But this does not require that the proof attain certainty, but even at that, it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt since the law will not permit fanciful possibilities to deflect the course of justice. See MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372, ADEKUNLE v. THE STATE (1989) 12 SCNJ 184 at 198 and BAKARE v. THE STATE (1987) 1 NWLR (PT 52) 579 at 587. Proof beyond reasonable doubt does not require that the prosecution prove its case with mathematical exactitude: ADEBOYE v.THE STATE (supra).

The Respondent has conceded that the evidence on which the Appellant was convicted is circumstantial evidence which is cogent and compelling. The three ways or methods of proving the guilt of an accused person, namely:

1.       By reliance on a confessional statement of an accused person voluntarily made;

2.       By circumstantial evidence

3.       By evidence of eyewitnesses.

See EMEKA v. THE STATE (2001) 32 WRN 37 at 49 and OKUDO v. THE STATE (2001) 8 NWLR (PT 1234) 209 at 236 D; have been referred to by the Respondent on page 11 of its brief. The extra judicial statement of the Appellant was rejected in evidence after a trial within trial for not having been made voluntarily. The evaluation of the evidence by the Lower Court seemed to have drawn conclusions which are not borne out by the evidence, thus making the findings perverse. In such circumstances an appellate Court is in as good a position as the Court of trial to evaluate the evidence, since the findings of facts are not based on the credibility of the witnesses: CHEDI v. A-G FEDERATION (2006) 13 NWLR (PT 997) 308 at 325 & 326, ABDULLAHI v. THE STATE (2008) 17 NWLR (PT 1115) 203 at 219 and WACHUKWU v. OWUNWANNE (2011) LPELR (3466) 1 at 51. The findings of the Lower Court based on the evaluation of evidence is flawed because there is no testimony of any witness placing the Appellant at the scene of crime. While the PW4 claimed that he called the attention of the others to the red Mercedes Benz saying that he suspected it to be the same one he had seen near the Oba's Palace (see page 135 of the Records), he never stated that he saw the Appellant inside the vehicle at the scene of the crime. Additionally, it was suspicion that it was the same vehicle, not a positive identification that it was the same vehicle. Interestingly, the PW5 and PW7 whose attention was called to the vehicle stated that they only saw one person inside the vehicle as it drove past them. This makes suspect the finding of the Lower Court that: "There is evidence putting the 4th and 5th accused persons at the scene of crime from the place where they laid on wait by the Oba's Palace Benin City to the place where the two deceased were shot to death; and the conclusion of the Lower Court: "That 4th and 5th accused and other tracked the late Chief Sunday Ahanor to his house and also laid in wait, somewhere near his residence" and "That ultimately 4th and 5th accused and others ambushed him and others and shot him and Corporal Ibrahim Adukwu to death."

From the cold printed Records, there is no evidence of eyewitnesses that positively put the Appellant at the scene of crime. This means that the entire evidence of the Appellant's involvement is premised on circumstantial evidence. Let me make it clear that as held by the apex Court in NWEKE v. THE STATE (2001) LPELR (2119) 1 at 11:

"Circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial."

See also ADIE v. THE STATE (1980) 1-2 SC 116 and UKORAH v. THE STATE (1977) 4 SC 167.

I had earlier stated that proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: ADEBOYE v. THE STATE (supra). The legal position however seems to be that for circumstantial evidence to amount to proof of a case beyond reasonable doubt, such circumstantial evidence must prove the proposition which it seeks to establish with the accuracy of mathematics: FATOYINBO v. A-G WESTERN NIGERIA (1966) NWLR 4 and AIGBADION v. THE STATE (2000) 7 NWLR (PT 666) 686.

In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and unequivocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused and no one else must have committed the crime. Indeed the facts must be incompatible with innocence of the accused person and incapable of explanation upon any reasonable hypothesis than that of his guilt:

NWEKE v. THE STATE (supra) at 18. The Appellant has argued that the circumstantial evidence is not of this quality highlighting the inconsistencies and contradictions in the case of the prosecution. The Respondent on its part argued that the circumstantial evidence is cogent and compelling. The primal question therefore is whether the piece or pieces of circumstantial evidence before the Lower Court rose to the level of proving the proposition that the Appellant caused the death of the deceased persons with the accuracy of mathematics in order to rise to the level of proof beyond reasonable doubt or if as argued by the Appellant the contradictions and inconsistencies in the evidence of the prosecution were such that the circumstantial evidence was not cogent, complete and unequivocal. We will revert to interrogate this anon.

But first, what is the nature of the contradiction and inconsistent testimony which will cast a slur on the evidence adduced? The contradiction in testimony which would upturn the decision of a Court has to be material contradictions and not minor discrepancies.

In OGIDI v. THE STATE (2002) 9 NWLR (PT 824) 1 at 23- 24 which was followed in WACHUKWU v. OWUNNWANNE (supra) at 27 - 28, contradiction was given the following meaning:

“The word contradiction is a simple English word. It derives from two Latin words.  Contra and Deco-ere-dixi-dictum meaning to say the opposite hence  contradictum: A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains, some minor differences in details.”

So the question is whether the evidence of the prosecution witnesses affirm the opposite of what the other stated, such that the same would no longer be cogent, compelling, strong and unequivocal. The necessary starting point will be the testimony of the PW4, vis-a-vis the narration of the other witnesses and whether there was any contradictum  to say the opposite in the testimony.

Firstly, is the vexed issue of the position of the Red Mercedes Benz 190 when the commercial bus conveying the deceased persons was shot at. The PW4 stated as follows on page 135 of the Records:

“At the office of the A.I.G, we were given five police men. We went straight to where the red Mercedes was parked but by then they had left. Chief Ahanor now asked the police to go with us into the Palace to collect our Jeep and then park same at the house before we use the bus to trace the people.

I drove the Jeep along with a policeman and we stayed in front of the bus. As we were going to Chief Ahanor’s house to drop the jeep, at Eweka road, by St. Mary Magdalen Hospital, I saw the mercedes Benz 190 red in colour parked at a street opposite late Chief Ahanor’s street. I stopped. The bus in which Chief Ahanor and the other policemen were riding came up and they asked me, what is the matter. I told them that that was the vehicle I suspected. Suddenly the vehicle began to move towards where we were. The vehicle went by us, going to where we were coming from. The policemen ordered us to turn and chase the vehicle. As we chased the vehicle, when we got to St. Mary Magdalen junction, there is a pot hole there. At that point the mercedes blocked the bus and before we knew what was going on, they opened fire on the bus. When I heard the gun shots, I reversed my vehicle and escaped. I went straight to the office of the A.I.G to lodge the complaint. But before the police could get there, Chief Ahanor had been killed.”

Under cross examination at page 138 of the Records the PW4 further stated:

“I know that Chief Ahanor was in the bus. We were going together. I knew that Chief Ahanor had left the Palace but the people in the Red Mercedes did not know this. I was at the back of the bus when the shooting commenced. It is not true that the shot that killed Chief Ahanor was fired from the back and it hit the rear wind screen. I made the convoy to stop. Immediately, I heard the gunshots, I reversed the jeep. I do not know if the policemen in the bus fired back or not. The policeman in the Jeep did not fire any shot. I heard a gun shot and reversed the jeep.”

So by the account of the PW4 the Red Mercedes Benz blocked the bus and they opened fire on the bus. The Jeep driven by the PW4 was following the bus behind and when PW4 heard the gunshots he reversed the Jeep he was driving and escaped. It is instructive that there was nothing said about recognition of the persons in the Red Mercedes Benz and whether it was the same persons he saw when the Red Mercedes Benz was parked near the Oba’s Palace.

The PW5 who was in the commercial bus with the deceased persons narrated the episode as follows on page 144 of the Records:

“On our way, at Eweka street, close to Bight Engineering Company by 3rd East Circular Road, the late Chiefýs driver who was driving the jeep slowed down. We drove up to meet him to ask why he stopped. He told us that he saw the red mercedes Benz 190 that had been tailing them, pull out of a nearby lane. I saw the red mercedes Benz 190 myself with one man at the wheel. Supol Dika instructed the driver to go after the red car, which by this time had driven off with speed. We turned and followed it and the jeep also followed us. Getting to a junction, the driver of the red car turned right towards 3rd East Circular Road I was in the bus and we were chasing the red mercedes Benz 190. At the T-junction, we turned right, but by then we had lost sight of the red mercedes Benz 190. As we got to St. Mary Magdalen Hospital, our driver slowed down because of the potholes there.

At this point in time, I became apprehensive and told Supol Dika, we cannot see the red mercedes Benz 190, but before the driver could engage his gear, we heard sporadic shooting, first from behind. The bus driver could not move the bus. By this time bullets were coming, and the late Chief and my late colleague Corporal Aduku Ibrahim had been hit. There was blood all over and I was soaked in blood. It dawned on me that we were in a very dicey situation, so I went for the door and opened it. I was also hit by the bullets. I opened the door and came out, to a safe place where I could get a proper view of the vehicle. “

Based on this narration, there was one person inside the red Mercedes Benz as it drove past; but the PW5 did not see the Red Mercedes Benz again after they turned to pursue it and the shooting first came from behind. This is in contradiction to the testimony of the PW4 that the Red Mercedes Benz blocked the bus and ýthey opened fire. While the PW5 who was in the bus did not see the red Mercedes Benz before the shooting started the PW4 who was driving the Jeep following behind the bus claimed to have seen the Red Mercedes Benz block the bus. The PW5 stated that the shooting started from behind but the PW4 was categorical under cross examination that

“It is not true that the shot that killed Chief Ahanor was fired from the back and it hit the rear wind screen.”

The PW7 was with the deceased Chief Ahanor and was sitting with him at the rear of the bus when the incident occurred. His narration at pages 157-158 of the Records is as follows:

“When the vehicle arrived, we used it to the Oba’s Palace. I was not armed. The armed policemen entered the bus with us. The Chief and I were sitting at the rear of the bus, with his driver, (who brought the vehicle) sitting between us.

At the Palace, the persons we were looking for were no longer there. We drove into the Palace and the Chief directed his driver to take the Jeep. As I had the mandate to take him home and post armed policemen to his house, we decided to go to the house of Chief Ahanor. I directed one armed policeman to join the driver of the Chief in the Jeep, while the Chief remained in the bus with us. The Jeep (the personal vehicle of Chief Ahanor) drove in front while the bus in which we rode, was behind. At a point close to the Chief’s house i.e. about 2 to 3 buildings to his house, the driver of the Jeep stopped and was directing our attention to one red mercedes 190 car. At this point the red mercedes 190 was coming from the opposite direction and drove towards the direction we were coming from. I looked into the red mercedes 190 car and saw only the driver of the car. I told the driver of our bus to turn around quickly, to see, if we can get a clear view of at least the registration number of the red mercedes 190. The bus, being an old vehicle could not turn around quickly, thus by the time it turned, the red mercedes 190 being a faster car, had disappeared. As we were woundering, [sic] where the vehicle had gone, we heard a rain of bullets from behind us, and the left side of the vehicle, i.e. where the Chief was sitting. The driver of the bus panicked, and the vehicle stopped. We were left to our fate. The firing of the guns continues. When I say the driver abandoned the vehicle, I mean, he stopped driving, and hid behind and under the steering. The vehicle was now motionless. The armed police man sitting directly in front of the late Chief, Corporal Ibrahim Adukwu was shot dead. The policeman who was seated with the driver left the vehicle, and the policeman in front of me also left the vehicle. The late Chief who had been shot fell on me but I managed to exit the vehicle. The two policemen rushed into a building by the right hand side. The two policemen also managed to reply fire but by then the assassins had left, and they made no impact. The shooting lasted for a very brief time.”

By this account of the PW7, there was only the driver inside the Red Mercedes Benz and the vehicle had disappeared from view when he heard a rain of bullets from behind.So the Red Mercedes Benz did not block the bus and the shooting came from behind, contrary to the testimony of the PW4.

The driver of the commercial bus in which the deceased persons were shot dead testified as the PW2. His account of the incident at page 124 - 125 of the Records is as follows:

“I asked him, where we are going to and he told me to go to Eweka Street, off 3rd East Circular Road, Benin City. As we were going, just before the bad spot on Eweka street, close to Mary Magdalen Hospital, the driver stopped the Jeep. He brought out his head from the Jeep and said Chief look at them. The persons he was referring to were in a Mercedes Benz 190 but they did not stop.

Chief Ahanor, ordered the Jeep driver to turn and follow the people in the mercedes Benz 190 and also ordered me to follow them. Before we could turn the vehicles around and follow the Mercedes Benz 190, we could not see the car again. The police asked, where did they pass or go, I did not know. Even though, we did not see them, the late Chief Ahanor, ordered me to move on to the front. We did not know that the people in the Mercedes Benz 190 had turned into road by St. Mary Magdalen Hospital and had hidden there. As I passed by the road, before I could change the gear in my bus, I heard a gun shot, through the rear windscreen into my vehicle. The police in my bus then called me to move but before I could move, the mercedes Benz 190 had blocked my bus. The two men opened their doors at once from the Mercedes Benz 190 and raised their guns and opened fire on us. I bent down under the dash board and folded myself and made as If I had been shot by bringing out my tongue. As they fired on us, I did not hear anything such as motor bikes going by or even sounds of people nearby. After shooting for sometime, they came to the bus, and walked around it to ensure that all inside were dead. They then went to the rear side of the bus, and started firing their guns again. They then left.”

By this account, he could not see the Red Mercedes Benz he was pursuing and he heard a gunshot through the rear windscreen into the bus. Thereafter the Red Mercedes Benz reappeared blocked the bus and two men came out from the Mercedes Benz 190 and opened fire. The PW2 stated that he bent down under the dashboard folded himself and made as if he had been shot by bringing out his tongue. Yet from this position of taking cover and playing dead he claims to have observed the assassins walk round the bus to confirm that the people inside were dead and in a movie style testimony he claimed that they went to the rear side of the bus and started firing their guns.

The PW2, PW4, PW5 and PW7 are the prosecution witnesses that gave eyewitness account of what transpired when the bus was ambushed and the deceased persons killed. Are their testimonies consistent as to what happened? It does not appear to me to be consistent. Are the areas of inconsistency material? I would answer in the affirmative. It is a material contradiction when they gave parallel accounts as to whether the Red Mercedes Benz blocked the bus or whether they did not see the Mercedes Benz again before the shooting started. It is a material contradiction when some state that the shooting was from the rear of the bus and others from the front when the Mercedes blocked the bus. The testimony clearly affirm the opposite of the other. In arriving at the conclusion that there was no contradiction in the testimony the Lower Court stated as follows at pages 463 - 464:

“In his address, Learned Counsel for 4th accused, raised the issue of inconsistencies in the testimony of PW5 and 7 on the one hand and that of PW4 on the other hand.

I have closely examined the testimony of the PW 5 and 7. Both of them saw the red Mercedes Benz 190, which PW 4 had said was being used to stalk the deceased Chief Ahanor. Both of them saw the Mercedes Benz 190 go past them in the opposite direction and both them said the cars were turned around to chase the vehicle.

This only point of difference is that they said they did not see the red Mercedes Benz 190 when the shooting was going on. But the PW 5 and 7 said they jumped out of the vehicle and ran to safety. I am therefore not surprised that they did not see the red Mercedes Benz 190.

However PW2 the bus driver saw the vehicle. In fact, he said the Mercedes Benz blocked his bus and the persons who attacked them came out of the vehicle.

Taking a holistic view of the testimony of PW 2, 4, 5 and 7, it cannot be said that the fact that PW5 and 7 said they did not see the Mercedes Benz, amounts to a contradiction of the testimony of PW 4, they did not say that they did not see the Mercedes Benz at all. They had seen the car, but they did not see it while the guns were firing. This is very possible considering that the PW5 and 7 were in a life and death situation. Furthermore, they said they jumped out of the bus at that time.

In view of the circumstances, the submission that the PW 5 and 7 contradicted the PW 4 cannot be accepted.

The conclusion of the Lower Court that PW5 and PW7 were in a life and death situation and jumped out of the bus and ran to safety seems to have glossed over the testimony of the PW4 that when the shooting started he reversed his vehicle and escaped. See page 135 of the Records. Also the PW2 testified that he hid under the dashboard of the vehicle. See page 124 of the Records. The PW5 stated that as the shooting was going on he came out to a safe place where he could get a proper view of the vehicle (See page 144 of the Records). The PW7 testified that even though Chief Ahanor who had been shot fell on him, he managed to exit the vehicle and that two of the policemen with them managed to reply fire but they made no impact. The explanation by the Lower Court that the PW5 and PW7 ran to safety and it was not a surprise that they did not see the red Mercedes Benz 190 (page 463 of the Records) is definitely not borne out by the Records. The "contradictum" in the testimony of the prosecution witnesses in the regard is apparent.

It is settled law that where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. See ONUBOGU v. THE STATE (1974) 9 SC 1, BOY MUKA v. THE STATE (1976) 9 ý?? 10 SC 305 and NWABUEZE v. THE STATE (1988) 4 NWLR (PT 86) 16. In the words of Fatayi-Williams, JSC (as he then was) in ONUBOGU v. THE STATE (supra) at 20:

"We are also of the view that where one witness called by the prosecution in a criminal case contradicts another witness on a material point, the prosecution ought to lay some foundation before they can ask the Court to reject the testimony of one witness and accept that of another witness It is not competent for the prosecution which called them to pick and choose between them... We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross examination, the validity of the proffered explanation.

I kowtow. The Lower Court ought to have given the Appellant the benefit of the doubt arising from the material contradiction and inconsistencies in the evidence of the prosecution: DOGO v. THE STATE (2001) 3 NWLR (PT 699) 192.

The testimony of the PW4 who saw the red Mercedes Benz he suspected both when it was parked near the Oba’s Palace and when it was seen at the scene of crime was lucent that it was only one Red Mercedes Benz that he suspected. Equally the PW2, PW5 and PW7 who were at the scene of crime all testified that it was one Red Mercedes Benz. However, the Lower Court seemed to have been swayed by the testimony of the PW10, the IPO, at page 225 that there was a second Mercedes Benz 190 red in colour belonging to the 3rd accused which could not be recovered and which was also alleged to have been used for the assassination. None of the PW2, PW4, PW5 and PW7 testified that two Mercedes Benz 190 cars were involved in the incident.

It is hornbook law that suspicion however strong will not found or lead to a conviction as it cannot take the place of legal proof. See ADAMU v. THE STATE (2010) LPELR (3041) 1 or (2010) 8 NWLR (PT 1195) 112. Mere circumstances of suspicion are not sufficient to justify a conviction. See ABIEKE v. THE STATE (1975) LPELR (8042) 1 at 9. In the Malaysian case of SHASBAN BIN HUSSAIN v. GIONG FOOK KAM (1969) 3 ALL E.R. 1926 which was referred to by Lewis, JSC in OTERI v. OKORODUDU (1970) LPELR (2824) 1 at 14, Lord Devlin stated that "suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; I suspect but I cannot prove."

It seems to me that the case of the prosecution was conceived, weaned, nurtured, groomed and steeped in suspicion, speculation and conjecture. The conception found a ready outlet in the no love lost relationship between the 3rd accused and the deceased Chief Sunday Ahanor. It became weaned through the instrumentality of the PW4, who after he said he saw the Appellant and the 5th accused person in the red Mercedes Benz parked on a public road outside the Oba'??s Palace suspected them since they were the boys of the 3rd accused. Hear the PW4 at page 134 of the Records:

"... I saw a Mercedes 190 padded, red in colour. The car had tinted glass, but the front door had the windows  down. I looked in and saw Femi and Ogbemudia... PW4 identified 5th accused as Femi and 4th accused as Ogbemudia... I know 4th and 5th accused as the boys of the 3rd accused i.e Afro (Appellant herein) who has been having trouble with Chief Ahanor, hence I suspected them." (Emphasis supplied)

The suspicion on which the Prosecution case was built on was nurtured when the PW4 testified at page 135 of the Records that "About 30 minutes after Chief Ahanor left with the other Chief, 5th accused walked into the Oba's Palace to spy whether Chief Ahanor is still in the Palace". The PW4 did not say that the 5th accused person told him his mission when he walked into the Oba's Palace. It would take being a clairvoyant, which the PW4 did claim he was, for the PW4 to know that the 5th accused walked into the Palace to "spy whether Chief Ahanor is still in the Palace"; it does appear that this was speculation and conjecture on the part of the PW4. The grooming of the suspicion on which the prosecution case was anchored found expression in the further suspicion by the PW4 that the said red Mercedes Benz which he earlier saw parked at the road in front of the Oba's Palace resurfaced along the road leading to the late Chief Ahanor's house. There was no specific testimony in identification of the car as the same, no registration number or any other identification feature was given. Definitely, it was not intended to have the Court accept that there was only one "Mercedes 190 padded, red in colour" in Benin City. The steeping in suspicion in the case of the prosecution became evident in the manifest contradictions in the testimony of the PW2, PW4, PW5 and PW7 which I have already highlighted in this judgment as to what transpired at the scene of crime. It is inexorable in a criminal trial to establish not only that a crime was committed, but more importantly that it was the accused person that committed the crime: ADEKOYA v. THE STATE (2012) LPELR (7815) 1 at 28-29

It may be sound repetitive, but sometimes repetition is good for emphasis in order to drive a point home. So I state again that suspicion, no matter how strong cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See THE STATE v. OGBUBUNJO (2001) 2 NWLR (PT 698) 576 and UDOR v. THE STATE (2014) LPELR (23064) 1 at 14. Mere circumstances of suspicion can never justify a conviction. In ONIANWA v. THE STATE (2015) LPELR (24517) 1 at 40-41, this Court (per Ogakwu, JCA) stated:

"Suspicion, speculation, conjecture, proposition, hypothetical situations, presumptions or intuition cannot be a substitute for proof beyond reasonable doubt. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE v. ONYEUKWU (2004) 14 NWLR (PT.893) 340 at 379F - 380B."

I make bold to state that the law has remained certain in this context.

I have not lost sight of the submissions on the defence of alibi raised by the Appellant. The extra-judicial statement made by the Appellant was rejected in evidence after the trial within trial was conducted. See the Ruling on the trial within trial at pages 210A-210U of the Second Supplementary Record of Appeal. In the said extra-judicial statement the Appellant raised an alibi that he went to the Standard Trust Bank, Akpakpava on the day of the incident to collect some money. Though the extra-judicial statement was rejected in evidence in the course of the trial, there is nothing to show in the testimony of the PW10, the IPO, that he investigated the alibi raised by the Appellant at the earliest opportunity when the extra-judicial statement was made on 19th April 2006. It is pertinent to state that ruling on the voluntariness of the extra-judicial statement of the Appellant, the Lower Court held as follows at page 210R of the Second Supplementary Record of Appeal:

"I have read and considered Exhibit A and I have also examined Exhibit C. Although Exhibit A contains details which only 4th accused (Appellant) could have provided, it does not mean that it was made voluntarily. The issue of voluntariness of Exhibit A, is different and separate from its truth or falsity."

Implicit in the foregoing is that even though the extra-judicial statement was ultimately found not to have been made voluntarily during the trial within trial, the prosecution was not absolved from investigating the alibi raised by the Appellant at the earliest opportunity in the course of investigations before the matter was eventually charged to Court.

Furthermore in his testimony at page 274 of the Records, the Appellant stated as follows:

“I recall the 15th day of November 2005. In the morning of that day at about 9 or 10a.m. I left my house to standard Trust Bank at Akpakpava Benin City. On getting there, I wanted to collect the sum of N30500 sent to me by one Godwin Osazuwa based in London, I was told by the Cashier that the Bank's network was bad and they cannot access their computers. I was asked to wait and I waited till almost 2.p.m. before we were told to go and come back the next day if we cannot wait anymore.”

That is the alibi raised by the Appellant. Let me hasten to state that the alibi was not just raised for the first time in his testimony in defence of the Charge. This is evident from the testimony of the Appellant at page 291 of the Records under cross examination by the Prosecuting Counsel where, inter alia, he stated:

"There is nothing with me to show that money was sent to me and that I was in the Standard Trust Bank Ltd., on 15/11/05. The police did not ask me anything concerning any business at the Standard Trust Bank.”

It seems to be based on the above testimony extracted under cross examination that the Lower Court predicated its finding at page 468 of the Records where it held:

"I have considered the evidence of the 4th accused (Appellant), when he said he was in the Standard Trust Bank till 2.p.m. and thereafter went home. He has not produced any iota of evidence to support his contention."

Now, the term alibi is not defined in the Evidence Act. It is however a derivative of two Latin words "alius" meaning "other" and "ibi" or “ubi” meaning " there" or "where". Its usage in criminal jurisprudence is a dexterous fusion of the first three letters in the word "alius" and the last two letters in the word "ibi" or "ubi", hence the word alibi. See ALANI v. THE STATE (1993) 7 NWLR (PT 303) 112 at 114, THE STATE v. FATAI AZEEZ (2008) 4 SC 188 and ADEWUMI v. THE STATE (2012) LPELR (9753) 1 at 32E-F. Simply put, alibi means elsewhere other than the scene of crime at the relevant time: ATTAH v. THE STATE (2010) 10 NWLR (PT 1201) 190.

In criminal trials, where the defence of alibi is raised at the earliest opportunity as was done in this matter, the prosecution has the burden to investigate it and disprove the same. The failure of the prosecution to investigate the defence of alibi raised in such circumstance will lead to an acquittal. See the cases of EYISI v. THE STATE (2000) 4 NSCQR 60, EKE v. THE STATE (2011) LPELR (1133) 1, ODU v. THE STATE (2001) 5 SCNJ 115 at 120 or (2001) 10 NWLR (PT 772) 668. Also see generally the recent decision of the apex Court in ADEBIYI v. THE STATE (2016) LPELR (40008) 1 at 10-13 (per Nweze, JSC).

The Prosecution did not investigate the alibi raised by the Appellant. It was for the prosecution to disprove the alibi: EKE v. THE STATE (supra) and ADEBIYI v. THE STATE (supra). The failure of the Prosecution to investigate the alibi ought to have led to an acquittal: YANOR v. THE STATE (1965) ANLR (Reprint)199, BELLO v. THE STATE (1956) SCNLR 113 and ADEBIYI v. THE STATE (supra). I am therefore unable to accept the Respondent'??s contention on page 9 of the Respondent's Brief that:

"It is submitted with respect that banking transaction being essentially documentary the failure to call at least an official of the bank to tender document in proof of that transaction completely knocks out the alibi."

The Lower Court was in error when it held in respect of the alibi raised by the Appellant that: "He has not produced any iota of evidence to support his contention." It is not for the Appellant to establish his alibi to the satisfaction of the Court but for the prosecution to disprove the alibi: OSUAGWU v. THE STATE (2013) LPELR (19823) 1 at 20-21. The burden was on the Prosecution to investigate and disprove the alibi. The failure to investigate the alibi entitled the Appellant to the exculpatory effect of the defence, which is to absolve him completely from criminal responsibility for the offences charged as the assertion in the defence of alibi is that he was elsewhere and could not have been at the scene of the crime at the same time. See ARCHIBONG v. THE STATE (2006) 14 NWLR (PT 1000) 349, AGBOOLA v. THE STATE (2013) 11 NWLR (PT 1366) 619 and EBRE v. THE STATE (2001) 12 NWLR (PT 729) 617 at 635.

SUMMATION

The offence for which the Appellant was convicted attracted capital punishment for which the Lower Court imposed the supreme punishment of the death penalty. It has been held that a judgment which imposes the capital punishment must be arrived at based on analytical reasoning that attracts confidence. The Apex Court stated as follows in NDIDI v. THE STATE (supra) at 1650 - 1651:

“In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him at any single minute, must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.”

See also EBRI v. THE STATE (2004) 11 NWLR (PT 885) 589 at 605.

Furthermore it does appear that the Lower Court did not adequately advert to the consideration which ought to affect the mind of a trial Court when it comes to weigh the effect of evidence in a charge attracting capital punishment. In NWOSU v. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, JSC referred to the case of EGBE v. THE KING (1950) 13 WACA 105 where a passage in the 10th Ed. of Best on Evidence was referred to and stated:

"The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the Tribunal; as reasonable men, beyond all reasonable doubt."

I am unable to agree with the Lower Court that the persuasion of guilt from the evidence adduced amounted to a moral certainty. Doubtless, the deceased persons were murdered in cold blood, but cogent and credible evidence has to be adduced to find any person culpable for the cold blooded murder. The law is now firmly settled by a plethora of authorities that it is better for ten guilty persons to escape than for one innocent person to suffer. Put differently, it is better to acquit ten guilty men than to convict an innocent man: UKORAH v. THE STATE (1977) 4 SC 167 at 177, OLAKAIBE v. THE STATE (1990) 1 NWLR (PT 129) 632 at 644 and SHEHU v. THE STATE (2010) LPELR (3041) 1 at 10.

In SAIDU v. THE STATE (1982) 4 SC 41 at 69 - 70, Obaseki, JSC stated:

"It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in the streets and tread the Nigerian soil and breathe the Nigeria air as free and innocent men and women."

So shall it be with the Appellant. Based on the evidence on record before the Court, I will give the Appellant the full benefit of my doubt (see OMOPUPA v. THE STATE (2007) LPELR (8571) 1 at 45), by resolving the sole issue for determination as distilled by the Court in his favour. The prosecution did not prove the offences charged against the Appellant beyond reasonable doubt in order to warrant the conviction of the Appellant by the Lower Court.

My Lords, the concomitance of the totality of the foregoing is that the conviction based primarily on suspicion and on circumstantial evidence which is not cogent, compelling and unequivocal cannot be allowed to stand. The appeal has merit and it succeeds. The decision of the Lower Court delivered on 23rd July 2010 embodying the conviction of the Appellant and the sentence of death imposed upon him is hereby set aside. A verdict of discharge and acquittal is hereby returned in respect of the three count charge preferred against the Appellant.

JIMI OLUKAYODE BADA,  J.C.A.:

I read before now the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA, just delivered and I agree with my Lord's reasoning and conclusion.

There is merit in the appeal and it is also allowed by me. I abide by the consequential orders made in the said lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.:

My learned brother UGOCHUKWU ANTHONY OGAKWU, JCA, made available to me before now a copy of his leading judgment allowing the Appeal. I agree with my Lord's reasoning and conclusion.

Adopting the fact as eloquently reproduced by my learned brother, my strong view is that the conviction of the Appellant is founded on suspicion. Conviction should be based on proof beyond reasonable doubt and not on suspicion or speculation. See DELE GABRIEL v. THE STATE NCC VOL. 6 (2011) 249 AT 255.

Suspicion in its ordinary meaning is a state of congesture or surmise, where proof is lacking. It is another way of saying, I suspect but I cannot proof. See OTERI & ORS v. OKORODUDU & ANOR (1970) ALL NLR 199.

In the light of the above brief comments and the fuller reasoning of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA, I consider the appeal meritorious. I also set aside judgment of the Lower Court delivered on 23rd July, 2010 convicting and sentencing the Appellant to death.

I abide with the consequential order of discharge and acquittal of the Appellant. He should be unconditionally set free forth with. There shall be no order for cost.