(DELIVERED BY OLU ARIWOOLA, JSC)
This is an appeal against the judgment of the Court of Appeal, Owerri division which was delivered on the if day of July, 2012,
The appellant and two others had been arraigned on a two count charge of conspiracy to murder and murder of one Cecilia Ogbonna, The said two count charge reads as follows:-
"'That you Uzoma Okereke, Ugochukwu Okereke and Chukwuma Ezekwe, on or about the 30th day of November, 2005, at Umuoguta Ndegwu in the Owerri West Magisterial District did conspire with one another to commit felony to wit: Murder and thereby committed an offence punishable under Section 324 of the Criminal Code Cap 77 Laws of the Federation Nigeria, 1990 as applicable to Imo state.
That you Uzoma Okereke, Ugochukwu Okereke and Chukwma Ezekwe on the same date and place at the aforesaid Magisterial District, did Murder one Cecilia Ogboona and thereby committed an offence punishable under Section 319(1) of the Criminal Code Cap.77, Laws of the Federation of Nigeria, 1990 as applicable to Imo State."
Upon being properly charged before the Imo State High Court, holden at Owerri, the three accused persons were tried, with the prosecution calling seven (7) witnesses and in defence five (5) witnesses were called all together Inclusive of the accused themselves. They were respectively found guilty as charged. They were convicted and each sentenced to death by hanging for the murder of Cecilia Ogbonna.
The facts of the case are as follows:-
The appellant and his brother, Uzoma Okereke living with their mother lived in the same neighbourhood with the deceased. Appellant's mother - one Ifeoma Okereke and the deceased were married to the same family, their respective husbands being first cousins. Indeed, a common wall separates the houses of both women. There was evidence that there was an unresolved dispute between the deceased and appellant's mother. The latter had accused the deceased of being responsible for the death of her son's dog, and had threatened that the deceased would also die the same way the dog had died.
PW1, one Grace Igwe, who is also married into the same family with the deceased had testified, that as she was returning from the market one day, she heard the deceased shouting, that someone had tampered with her electric wire and as she got closer to the house she saw the appellant's mother with one of her children, the 1st accused-Uzoma Okereke. Ifeoma had told her son to break the deceased head with a stick. However, in the early hours of the 30th November, 2005, she had gone to the deceased house but found the deceased in the pool of her blood with multiple injuries on her body. She was told by the deceased that the appellant and two others whose names she gave, inflicted the injuries on her. The injuries she sustained had led to her death in the hospital.
In defence, the appellant denied ever inflicting any injury on the deceased but stated that there was an armed robbery incident in their neighbourhood. Their own house was said to have been attacked by the said armed robbers who not only robbed their mother - Ifeoma of the sum of
N30,000.00 but also inflicted injuries on her as well. And that the same armed robbers must have attacked the deceased.
At the close of the trial, the judge believed the story of the Prosecution and disbelieved the defence. In his considered judgment delivered on the 31st day of March, 2009, the trial Judge found the appellant and others guilty and convicted them. Each of them was sentenced to death by hanging.
The appellant and others were dissatisfied with the decision of the trial court, hence they jointly appealed to the court below. In a unanimous decision of the Court of Appeal, the appeal was dismissed leading to the instant appeal by the appellant. The court below had affirmed the conviction and sentence.
Further dissatisfied, the appellant had appealed on two grounds contained in his Notice of Appeal filed on the 31st day of July, 2012.
Upon settlement of record, counsel filed and exchanged briefs of argument and this appeal was heard on the 5th day of November, 2015. The learned counsel for the appellant adopted and relied on the appellant's brief of argument which was settled by L M. Alozie, Esq. filed on 5th August, 2013, He urged the court to allow the appeal, set aside the decision of the Court below which had affirmed the conviction and sentence of the appellant. He finally urged the court to discharge and acquit the appellant.
Learned counsel for the respondent also adopted and relied on the respondent's brief of argument earlier settled by Mrs C.C. Dimkpa, filed on 21st November, 2013 but deemed as properly filed and served on 18th February, 2015,
In the appellant's brief of argument, the appellant had distilled a sole issue for determination from the two grounds of appeal earlier filed. The said issue reads thus:
"Whether having regard to the facts and circumstances of this case the prosecution proved the guilt of the appellant beyond reasonable doubt"
In arguing the sole issue formulated for determination of the appeal, learned counsel referred to the testimony of PW1 and PW3 and contended that it is evident that the incident of inflicting injuries on the deceased happened between the deceased and her assailants only, without any eye witness. He contended further that from the testimony of PW1, who went to the deceased's house with her lantern, that there was no light in the deceased's room or premises and the fact that the incident took place at about 1.00a.m.
Learned counsel submitted that the testimony of PW1 as to what the deceased told her did not sufficiently identify the appellant and his co-accused persons as the assailants of the deceased. He contended that with the material contradictions in the testimony of both PW1 and PW3 on the position of the door to the deceased's room and when each of them arrived her house in the early hours of the day of the incident, the court ought not to believe them and ought to have discountenanced their testimony. He cited, Jeremiah Vs. State (2012) 14 NWLR (Pt.1320) 253.
Learned counsel referred to the testimony of PW2 - Police Constable - Osuagwu Samson and that of PW5 and PW6 as to how the deceased was moved to the Federal Medical Centre, Owerri and contended that the court ought to have rejected their testimony. He referred to Exhibit A, the Statement which was said to have been obtained from the deceased in her hospital bed by the police.
Learned counsel contended that the appellant was made the second accused person that was tried for the murder of the deceased because it was alleged that the deceased has mentioned his name as one of the persons who attacked her in the early hours of the 30th November, 2005. Learned counsel further contended that notwithstanding the fact that PW1, PW3 and PW6 claimed to have been told by the deceased that three persons attacked her including the appellant, yet another person by the same name with the appellant was first taken to the hospital to be identified despite Exhibit A that was said to have been obtained from the deceased. He conceded that the appellant was later arrested by PW6 and PW7 after the deceased had told them that the Ugochukwu that was first arrested was not the one she said was one of those who attacked her.
Learned counsel referred to the testimony of PW6 to the effect that the deceased was first unconscious after the attack but later gained consciousness before her statement was obtained. He had compared the testimony of PW6 with that of PWl, PW2, PW3, PW5 and PW7 on the state of consciousness of the deceased and came to the conclusion that their testimony ought not to have been believed by the court. He urged the court to discountenance their testimony. Learned counsel submitted that the appellant was not the Ugochukwu the deceased had mentioned in her statement - Exhibit A, but that he was framed up into the case on the basis of suspicion and the strained relationship between the deceased and the appellant's mother.
Learned counsel contended that there was no credible evidence identifying the appellant or indeed any other person as the person that inflicted the injuries on the deceased.
Learned counsel referred to the testimony of PW4 under cross examination and the report of his autopsy which was admitted as Exhibit B. He contended that there were contradictions on the date the deceased died. He urged the court to resolve the divergence of opinion in favour of the appellant. He cited Ekang Vs. State (2001) NWLR (Pt.723) 1 at 6.
Learned counsel referred to the statement said to have been made by the deceased to PW2 - Exhibit A and contended that Exhibit A was so self contradictory and manifestly unreliable that no reasonable tribunal can act on it.
Learned counsel referred to the testimony of DW1, DW2 and DW5 on the issue of armed robbery attack on the appellant's family. He contended that from the testimony of PW5 also on the armed robbery incident, there was already a reasonable doubt created by the evidence as to who inflicted the injuries sustained on the deceased. He submitted that when taken holistically, the case of the prosecution had created so much gap and so many questions unanswered that the reasonable doubt created ought to have been resolved in favour of the appellant and others.
Learned counsel further submitted that with the issue of armed robbery incident, the court ought to have considered it as a defence put up by the appellant but the court did not consider the defence, in particular, the court below on appeal from the trial court.
Learned counsel submitted that there were so much loose ends and contradictions in the case presented by the prosecution that the court below ought to have allowed the appeal and discharge and acquit the appellant.
Learned counsel referred to the ingredients the prosecution must prove before a conviction for murder can be secured by the prosecution. He cited Ochiba Vs. The State (2011) 17 NWLR (Pt, 1277) 663 and Jeremiah Vs. State (2012) 14 NWLR (Pt.1320) 254. And that a charge of murder will be established only when the prosecution prove all the said required ingredients beyond reasonable doubt. He submitted that where there are material contradictions in vita! issues on the testimony of prosecution witnesses, the trial court should upon a proper evaluation of the evidence adduced refrain from returning a verdict of guilt of the accused. He cited Akindipe Vs State (2006) 15 NWLR (Pt.1111) 560.
Learned counsel submitted that the entire evidence of all the prosecution witnesses amount to hearsay because none of them was an eye witness of the attack on the deceased. He contended that even though there may be suspicion against the appellant and some members of his family, that suspicion, he submitted, was not enough to secure conviction.
Learned counsel referred to Exhibit A as the Statement the deceased was said to have made to the police and contended that the statement did not meet the requirements of a Statement to qualify as a dying declaration as required by the Evidence Act. He submitted that based on the decisions of this court, for a dying declaration to be admissible in evidence, there must be proof that the deceased when making it believed himself to be in danger of approaching death. He cited, Okoro Vs, State (2012) 4 NWLR (Ptl290) 351, Otuskpor Okafor Vs The State (1967) NMLR 189. And that in the absence of hopeless expectation of death, such a statement will be mere hearsay and inadmissible.
Learned counsel submitted that the purported dying declaration in this case in Exhibit A is a concoction by PW1 which she sold to other prosecution witnesses based on mere suspicion. He submitted that suspicion no matter how strong cannot ground a conviction, relying on State Vs. Ogunbanjo (2001) 2 NWLR (Pt. 698) 576.
Learned counsel referred to the evidence of PW1 to PW7 as to what the deceased told them relating to the cause of her death as merely hearsay and is inadmissible. He contended that apart from Exhibit A, there is no evidence before the court which can qualify as res gestae in a dying declaration. He submitted that there is no legal ground to sustain the conviction of the appellant. He submitted further that the prosecution failed woefully to prove the charge against the appellant beyond reasonable doubt. He urged the court to allow the appeal and set aside the decision of the court of Appeal, Owerri Division delivered on 11/07/2012 and in its stead enter a judgment in favour of the appellant, discharge and acquit him.
As I stated earlier, the respondent in its brief of argument adopted the sole issue formulated for determination by the appellant.
In arguing the said issue, learned counsel referred to the essential elements the prosecution is required to prove beyond reasonable doubt, in a murder trial. He cited Kaza Vs. The State (2008) 7 NW|LR (Pt.1085) 125 at 163; P.C.O. Oludamilola Vs. The State (2010) 181 LRCN 1 at 16 & 17.
He contended that in proving the required elements, the prosecution may rely on direct eye witness account of the incident or circumstantial evidence. He cited Mustapha Mohammed & Anor Vs The State (2007) 153 LRCN 110 at 125; Adio Vs. The State (1986) 2 NWLR (Pt.24) 581.
Learned counsel in arguing further took the first and third elements of the three elements the prosecution is required to prove beyond reasonable doubt to secure conviction on a charge of murder.
First, that the death of a human being has actually taken place and secondly that the act was done with the intention to cause death or that the accused knew that death should be the probable and not only the likely consequence of his act. He submitted that the prosecution, through the evidence of PW4 and Exhibit B proved that Cecilia Ogbonna had died. He referred to the testimony of PW4 - the Medical Doctor who had performed the autopsy or post mortem examination on the deceased. That the body of the deceased was identified to him for the autopsy by Chief Ferdinand Ukawuike after which he produced Exhibit B.
Learned counsel contended that there is evidence that the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act. He referred to the evidence adduced by the prosecution on the age of the deceased which was put at 60 years and that the deceased was living alone in her house. He further referred to the statement of the deceased - Exhibit A, the autopsy Exhibit B, which described the type of beating mete out to the deceased and the injury sustained.
Learned counsel contended that intent to kill can be inferred from the nature of the weapon used and the wound inflicted. He referred to the autopsy report and the testimony of PW4 which was unchallenged and uncontradicted. He submitted that with the type of injury inflicted on the deceased, the sole intention of the assailant was to cause death as a natural consequence, as a man intends the natural consequence of his act. He cited Nwokearu Vs The State (2013) All FWLR (Pt.689) 1040 at 1065.
Learned counsel contended that where a human being is wounded and he dies as a result of that injury sustained, within a year and one day, the accused is deemed to have killed the deceased. He referred to Section 314 of the Criminal Code and the evidence adduced, that the attack on the deceased took place on 30th November, 2005 and the victim was immediately taken to the Federal Medical Centre, Owerri where she died on the 4th of December, 2005. He submitted that the death of the deceased was as a result of the injuries she sustained from the attack on her in the early hours of the 30th November, 2005.
Learned counsel then moved to the second element, that death of the deceased was caused by the accused person. In proving this fact, the prosecution is expected to prove the identity of the accused person(s). In establishing this, learned counsel referred to the evidence of PW1, PW2, PW3, PW6 and PW7 and Exhibit A. He contended that from the evidence adduced, the prosecution has been consistent in the identity of the attackers and it was not in any way debunked under cross examination.
Learned counsel referred to the testimony of PW1, in particular, on the threat to kill the deceased by the appellant and his mother, which testimony was not challenged or controverted under cross examination. He submitted that where a party fails to cross examine a witness under cross examination on any issue raised in the evidence in-chief, he is deemed to have accepted the truth of the witness's evidence in-chief. He cited Patrick Oforlette Vs The State (2000) FWLR (Pt.12) 2081. He submitted that the court is entitled and indeed bound to accept evidence unchallenged under cross examination provided such evidence by its nature is not incredible.
Learned counsel submitted that the prosecution successfully proved the identity of the appellant as one of the people who attacked the deceased in the early hours of 30th November, 2005, and inflicted injuries on her which injuries caused her death on 4th December, 2005,
Learned counsel referred to the testimony of PW1, PW3 and PW7 on what the deceased told each of them, that the appellant was one of those who had attacked and inflicted injuries on her. And contended that the evidence was not successfully debunked under cross examination.
He referred to the defence put up by the appellant, which was that there was an armed robbery incident where his family was attacked and his mother was robbed of her
N30,000.00. He referred to the statement made by the appellant which was admitted as Exhibit D, his oral testimony and the testimony of his mother, - DW1, on the robbery incident. He also referred to the statement of DW1, Exhibit C.
From the evidence of the alleged robbery incident, learned counsel contended that the whole story was concocted by the appellant to mislead the court.
Learned counsel referred to the testimony of the appellant that the deceased had died before the policemen came to her house. But in the statement made to the police - Exhibit D, the appellant had stated inter alia, that "when the police came, the woman was taken to the hospital for treatment "
Learned counsel referred to Exhibit A, the statement made by the deceased to the police on her sick bed in the hospital where she clearly identified the appellant and the co-accused and mentioned their names. He submitted that from the evidence, it was clear that the deceased was conscious and alive at the hospital when she made her statement to the police. He submitted that the deceased recognized her attackers who thought she was dead and took to their heels but she regained consciousness and gave out their names, inclusive of the appellant, first to PW1 who first got to her room after the attack.
Learned counsel again referred to the defence put up by the appellant that there was an armed robbery attack on his family and the deceased but no other person or family was attacked in the neighbourhood. But worthy of note was the fact that the said alleged armed robbery incident was not reported to the police neither was his mother, who was allegedly wounded, taken to the hospital. He submitted that the story of armed robbery incident on the day in question was a pre-meditated concocted story and a ruse to cover the heinous act of the appellant and his family.
Learned counsel referred to the testimony of PW6 on the appellant's mother's story of armed robbery attack on her and how she was wounded and robbed of
N30,000.00 but that she did not report to the police. On investigation, she was found to be faking the wound on her head as, upon the police's removal of the bandage she had on, there was no wound at all on her head. Learned counsel contended that PW6 was not challenged and not controverted on this under cross examination.
Learned counsel referred to the testimony of PW7, the Chairman of Vigilante group of Ndegwu people, who stated that there was no robbery incident in that neighbourhood on the day in question. He submitted that there was no contradiction that there was no incident of armed robbery as alleged by the defence.
On the alleged discrepancy on the date the deceased died as stated on the doctor's report- Exhibit B, learned counsel submitted that there was no discrepancy at all. He contended that the courts below rightly concerned themselves with what was the main issue in the case. He contended further that the main issue was whether the deceased, before she died made the statement in Exhibit A and gave the name of the appellant and his co-accused as those who attacked her and inflicted the injuries on her.
Learned counsel submitted that the two courts below amply considered this important issue and correctly came to the concurrent decision that Exhibit A was made by the deceased before her death and the courts found the statement to be a dying declaration in accordance with Section 33 (1) (a) of the Evidence Act.
He finally submitted that the court below was right in affirming the conviction and sentence of the appellant earlier handed down by the trial court which rightly found that the prosecution proved its case against the appellant as charged beyond reasonable doubt. He urged the court to dismiss the appeal and affirm the judgment of the court below.
As earlier indicated in this judgment, the appeal is against the decision of the Court of Appeal, Owerri division which had dismissed the appeal of three convicts whom the trial court had earlier sentenced to death by hanging for the murder of Cecilia Ogbonna.
The appellant herein with his elder brother-Uzoma Okereke and another neighbour - Chukwuma Ezekwe were charged with an offence of murder. They were tried, found guilty and convicted as charged. This court had earlier dealt with the appeal of the appellant's elder brother as a co-Convict - Uzoma Okereke, The judgment was delivered on 22nd day of January, 2016. His appeal was found unmeritorious and was accordingly dismissed.
The instant appeal is against the same judgment of the court below which dismissed the joint appeal of the three convicts that were respectively sentenced.
Generally, and it is already established in our criminal justice system that in a charge of murder, the prosecution has the burden to prove certain elements or ingredients of the charge beyond reasonable doubt. These are:-
* That a human being has died;
That the death of the deceased was actually caused by the accused; and
That the accused intended to either kill the victim or cause him grievous harm which resulted to death.
See; Fancis Durwode Vs The State (2000) 12, SC (Pt. l); Akpan Vs State (2001) 7 SC (Pt.ll) 29; (2001) FWLR (Pt.56) 7351; Idemudia Vs State (1999} 5 SC (Pt.ll) 110; (2001} FWLR (Pt.55) 549 at 564; Sabina C Madu Vs The State (2012) 6 SCNJ 129; (2012) 15 NWLR (Pt.1324) 405; (2012) 50 NSQR 67; (2012) 6 SC (Pt.l) 80.
Before I proceed further in this judgment, I consider it pertinent to state that certain facts were never disputed as they were clearly alluded to by both parties in their testimony and therefore they stand established and require no further proof. See; Olale Vs, Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 1021, Ndayako Vs Dantoro (2004) 13 NWLR (Pt.889) 1871; (2004) 18 NSCQR 646; Ehinlanwo Vs. 01 u sol a Oke & Anor (2008) 10 SCM 28; (2008) 16 NWLR (Pt.113) 357; (2008) 6-7 SC (Pt.ll) 123; Titiloye Vs. Olupo (1991) 9-10 SCNJ 122..
The said facts include:
The fact that one Cecilia Ogbonna was attacked in her room in the early hours of 30th November, 2005.
That the said Cecilia Ogbonna eventually died as a result of the injuries she sustained from the attack by her assailants.
That the deceased, Cecilia Ogbonna and the appellant and his family including her mother - Ifeoma Okereke lived within the same neighbourhood. Indeed, their respective houses were separated only by a walk
That there was an unresolved boundary dispute between the deceased and appellant's mother.
There is no doubt that the prosecution was not expected to prove any longer, the above facts that were either clearly admitted or not denied or disputed by the appellant. In other words, ordinarily in a murder charge, as the instant, the prosecution owes it a duty and burden to discharge during trial by establishing the death of the victim of the alleged act, that the accused was responsible by act or omission, intentional or otherwise, to the knowledge of the accused and that the act or omission could cause grievous harm or death. Indeed, the prosecution must prove that the act or omission actually caused death but not that it could have caused death. See; Ubanu & Ors Vs. State (2004) FWLR (Pt.191); 1533 at 1546; Godwin Igabele Vs State (2006) 3 SCM 143 at 146; Elewo Agbogede Vs, State (1996) 5 NWLR (Pt.448); 270.
In this case, in order to discharge the burden on it, the prosecution during trial called seven (7) witnesses while the appellant in defence testified and called other four (4) witnesses including the co-accused.
To prove that a human being had died in connection with the charge of murder in the instant, the prosecution called PW4, Dr. Raphael Egejuru, a Medical Practitioner and a Lecturer at the Imo State University, who teaches in the specialty of Pathology and works with the Federal Medical Centre, Owerri, The corpse of the victim was identified to him by Chief Ferdinand Ukawike as that of Cecilia Ogbonna. He testified that he performed post mortem examination on the body of the deceased on the 20th December, 2005, analyzing the tissues and body fluids taken out from surgical operation. After the autopsy, he reduced his findings into writing, Exhibit B. His findings, inter alia, is as follows:-
" there are two separate cuts on the right side of the scalp measuring 9cm and 6cm respectively with associated bleedings under the scalp. Also subdural harmorrage with cecibella tunisilla herniation and grooving under the scalp. Also there were extensive bruises of the muscles around the clavide (right) and scapula region."
In his opinion further testifying, PW4 gave the cause of death to be "traumatic and hemorrhagic shock due to soft tissue injuries and subdural hamorrage with associated conning consequent upon plunt injury to the head." In his opinion, these injuries on the deceased could not have been self inflicted.
There is no doubt that the death of a human being, in particular, the death of the victim of the alleged murder was established by the prosecution.
The other two elements that required to be proved were that the death of the deceased - Cecilia Ogbonna was caused by the appellant and that he and the others intended to kill the victim or cause her grievous harm which resulted to her death. To establish these elements, the prosecution relied on the testimony of PW1, Grace Igwe, PW2, then Police Constable Osuagwu Sampson, PW3, Chijioke Awurum, PW5 - a Police Officer - Opara Dennis, one of the policemen that investigated the case; PW6 CpL Oruke Wenekefe also a police Officer and PW7 -Christian Akowumobi, the Chairman of the Vigilante Group of Ndegwu people. But mostly, the prosecution relied on the statement of the deceased made to the police on her sick bed which was admitted without objection and marked Exhibit A.
From the evidence adduced by the prosecution, PW1 testified that she knows the appellant and the deceased very well, both of them having come from the same neighbourhood. Indeed, the deceased and herself were married to the same family. Their husbands being first cousins. She was aware of the hostility between the appellant's mother and the deceased, including the allegation against the deceased, by the appellant's mother that, the deceased killed her son's dog. PW1 testified further as follows:-
"On 29th November, 2005 by 5.30p.m, when returned from market, the said Cecilia showed me her wrapper which had been cut. She said she would burn it and I advised her not to burn the cloth, I advised her to go that I would come to her in the morning for us to have joint prayer. I went to her in the morning a few minutes past five o'clock, I was carrying my lantern. It was Wednesday 30th November, 2005, On getting close to her house, I heard some noise made by her. The noise was the noise of somebody who was in pains
As I went into her room I observed that my legs were matching on her blood on the floor. I raised the lantern and saw that her head had multiple injuries and blood all over her body. The body was bare. She was not wearing any blouse. I asked her what happened and she said that it was one Uzoma and Ugochukwu his brother and a tenant in Innocent's house who were responsible for the wounds that they had executed their threats that they would kill her. The three accused persons are the people the deceased said were responsible for her death. After this I ran outside and raised alarm which attracted peoples' attention,"
Under cross examination by the appellant's counsel, the witness testified that she was in good terms with Ifeoma Okereke, the appellant's mother and her children. That even her own last child often visited Ifeoma's house. That she was returning from the market on the day in question when she heard Ifeoma's voice and she rushed to the scene. It was then she heard Ifeoma told the deceased that she would die like their dog. And the appellant's brother - Uzoma Okereke then told the deceased that he would kill her even before her children would arrive from Lagos.
Further testifying under cross examination, the witness was categorical that there was no armed robbery attack or incident in their neighbourhood or anywhere in the village on the day in question.
PW2 a Police Constable - Osuagwu Sampson testified as one of the policemen who visited the appellant's family house after the complaint against him and others of having wounded the deceased on 30 November, 2005. On getting to the house, neither the appellant nor his brother was in the house. Only the mother was in the house and she said she did not know the whereabout of her children including the appellant.
The policemen later visited the deceased's house but discovered that she had been moved to the hospital. They then went straight to the hospital where they obtained her statement. Indeed, as the only Igbo man of same tribe with the deceased, he obtained her statement. The statement of the deceased was tendered through the witness and when there was no objection it was admitted and marked Exhibit A.
Under cross examination, PW2 in response to the question posed by the defence counsel, had stated that the content of Exhibit A was what the deceased had told him which he recorded and read over to her and she confirmed that it was correct. She appended her right thumb impression on Exhibit A.
PW3 was also a neighbour to the appellant's family and the deceased. He testified that the deceased told him that the appellant and two others, that he mentioned, inflicted the injuries on her. The witness confirmed his testimony under cross examination.
PW5 was the investigating Police Officer (IPO) who investigated the case. He obtained the statement of the appellant properly under caution. The statement was tendered through him and when there was no objection it was admitted and marked Exhibit C.
PW6 was also a police officer who caused the appellant to be arrested on 1st December, 2005 sequel to the statement earlier made by the deceased whereby his name and others had been given as her assailants. The appellant's 1st statement made to the police was tendered and admitted as Exhibit F.
"PW6 was the officer who obtained the statement of the appellant's mother - Ifeoma Okereke. Same was tendered and admitted without objection as Exhibit G.
Under cross examination, PW6 confirmed that the deceased gave him the three names of her assailants including the appellant, which led to their arrest.
From the evidence adduced by the prosecution, including the autopsy report of the Medical report, the trial court had found that the deceased - Cecilia Ogbonna did not die of natural death. The trial judge further found that Exhibit A was the statement made by the deceased to the police while she was alive as to who inflicted the injuries on her. And pursuant to Section 33 (1) (a) of the Evidence Act, the trial court found and held the said statement of the deceased to be dying declaration.
Worthy of note is the fact that Exhibit A which was admitted and held to be dying declaration was corroborated by the testimony of PW2 who saw the deceased shortly after she was attacked in her room in the early hours of the 30th November, 2005. The deceased was said to have given the names of the appellant and the two others who had attacked her.
As I stated earlier in this judgment, this court had considered the appeal of the elder brother to the instant appellant against the same judgment on the same grounds of appeal and delivered judgment on 22nd January, 2016.
My Lords, permit me to quote, in extenso, what this court had opined in the said judgment. It goes thus:
"There is no doubt, that at the trial of the appellant and his co-accused for murder of the deceased, there was no way the deceased could have been called as a witness to testify on the cause of her death. But the law is clear on the statements made by persons who cannot be called as witnesses. Section 33 (1) (a) provides as follows:
"Statements written or verbal, or relevant facts made by a person who is dead are themselves facts in the following cases:-
(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery,"
See; Solomon Thomas Akoan Vs, The State (1992) NWLR (Pt.248) (1992) 7 SCNJ 22; (1992) LPELR 381 SC; Anthony Okoro Vs. The State (2012) 1 SCM 80; (2012) LPELR 7846 SC; (2012) NWLR (Pt..} (2012) 1 SCNJ 36.
It is interesting to note however, that even though the prosecution owes it a duty to prove the charge of murder against the appellant beyond reasonable doubt, the defence put forward by the appellant and others was that tt was the same armed robbers who had attacked their house and wounded their mother, Ifeoma Okereke that also attacked the deceased and caused the injuries on her. But this defence was debunked by the prosecution. From the evidence adduced by the prosecution, there was no robbery incident at all within that neighbourhood. What is more, at least, none was reported to the police. Indeed, PW7, one Christian Akowunobi, was the Chairman of the Vigilante Group of Ndegwu people. He testified, inter alia, as follows:
"I know the late Cecilia Ogbonna. I know all the accused persons. As Chairman of Vigilante, my work is to guard Ndegwu town. I work with other subordinates. Each day we keep guard and patrol within Ndegwu community.
On 30th November, 2005, we were on duty of patrol till day break. At close of work, we received report that day, till 4.30am, there was no report of armed robbery or gun shot. After 4.30am around 6am one Sopurachi and Felicia Igwe came to my house that one Cecilia Ogbonna had been killed We went to the house of Cecilia Ogbonna. On getting there, we saw her lying on the floor in a pool of blood. She was still alife (sic). I asked her who inflicted the injuries on her; she said it was one Uzoma, his younger brother and a tenant in late Uzoigwe's house
The following day, J reported the matter to the State CID, Owerri. I made statement to the Police"
Under cross examination, PW7 was not shaken at all on the testimony he gave under examination in-chief. He confirmed that the deceased gave him the appellant's name as one of those who attacked her.
What is more, from the uncontroverted testimony of PW6, the claim of armed robbery attack by the appellant and his mother, Ifeoma Okereke was found to be false. The bandages rapped round her head and legs were false as there was no wound or bruises on her at all. In other words, the claim that there was a robbery incident was a make-up or fabricated story to cover the act of attack by the appellant and his co-accused.
I am therefore not in the slightest doubt that the trial court was right in admitting the statement of the deceased as a dying declaration which was admissible and properly admitted and relied upon.
In Akpan Vs State (1992) 6 NWLR (Pt.248) 439 this court on the statement made by someone on sick bed held as follows:
"....it is well established in our law of evidence that a statement made by a person in imminent fear of death and believing at the time tt was made that he was going to die is admissible as a dying declaration."
See also; Aknife Vs The State (1988) 3 NWLR (Pt.83); Okokor Vs The State (1967) NMLR 189.
There is no doubt that the testimony of PW1 as to what the deceased told her about the persons who had attacked her and giving their names may amount to hearsay evidence and may not ordinarily be admissible, but when same is taken together with other pieces of evidence adduced by the prosecution, it amounts to res gestae, being facts relevant to the fact in issue, therefore admissible and should be admitted. See; Arisa Vs. The State (1988) 7 SC (Pt.l) 52 at 68. The English case of R Vs Carnall (1995) Crim, LR 944 which was referred to in the sister case is in all fours with the instant case. In that case, "the accused was charged with the murder of V. Two witnesses had seen V. in the street outside their house. He was bleeding and asking for help. He claimed that he had been attacked with knives and baseball bat, and it had taken him about an hour to crawl from his home to the house. The witnesses asked him who had attacked him and he subsequently named the defendant. At hospital, before V. died, he gave a statement to a police officer, again naming V as the attacker. The trial Judge admitted both the statement to the witnesses and that given to the police officer as part of the res gestae. On appeal, it was argued that he had been wrong to do so. It was alleged that the time that had elapsed between the attack and the making of the statement (over an hour between the attack and the first statement, and nearer two hours in respect of the second statement) coupled with the fact that the statements had been made only in response to questions, meant that they were not sufficiently contemporaneous. Moreover, the appellant also contended that the statements were inherently unreliable, since the victim had lost a lot of blood, which could have resulted in a confused state of mind.
Dismissing the appeal, it was held that the crucial question was whether there was any real possibility of concoction or distortion, or whether the judge felt confident that the thoughts of the maker of the statements were at the time so dominated by what had happened that what the speaker said could be regarded as unaffected by any ex post facto reasoning or fabrication. In answering this question, the trial Judge had taken account of the appalling nature of the attack itself, the horrific injuries that were inflicted, the pain that the victim was undergoing and the obsession he had at the time, with getting help and trying to stay alive. The time factor was not conclusive. As to the question of the loss of blood, the Judge had rightly taken the view that this was merely speculative on the part of the appellant. Thus, the central issue for the court was not a question of lapse of time, but whether there was a real possibility of concoction or distortion as a result of the lapse of time or any other proven factor."
It is interesting to note that the trial court had found that the defence that there was an armed robbery incident in the early hours of that day was introduced to the case by the appellant "to deliberately create some doubts and to cover up their attack on the deceased."
My Lords, permit me once again to quote from what we had opined on this issue, It goes thus:-
"In the instant case, the fact that the claim of the appellant and his mother that the people who had robbed them and inflicted injuries on Ifeoma, the appellant's mother also inflicted injuries on the deceased, and this was found to be untrue becomes relevant fact to the fact in issue because it throws light on it. Ordinarily, merely telling a lie or lying by a suspect or an accused person is not evidence of the commission of any offence let alone murder. See; Anekwe Vs The State (1976) 9 -10 SC 255; Omogodo Vs. State (1981) NSCC 119. But where the fact of lying is taken together with other relevant facts and circumstances, in the particular case, it may safely be concluded that the accused is guilty of the offence charged. In that case, the lie or those lies become(s) relevant fact to the fact in issue as evidence against him. See; Ajiboye & Anor Vs State (1994) 8 NWLR (Pt.364) 587 sy 603. The fact in this case that the claim that there was a robbery attack, when there was none. And that the appellants' mother was injured and had to bandage her head were found to be lies are relevant facts taken together with the fact that immediately after the incident, both the appellant and his younger brother disappeared from the house, that their mother claimed she did not know their whereabout, are relevant to the fact in issue as to their involvement in the attack and the injuries inflicted on the deceased, which led to her death. In the circumstance, I believe that the learned trial Judge was right in admitting the statement made by the deceased to PW6 and when that was taken together with the testimony of PW1 and PW3 on what the deceased told them respectively at different times when the attack was fresh. In other words, f am satisfied that Exhibit A was relevant and admissible as dying declaration and was properly admitted by the trial court."
There is no reason whatsoever to hold a contrary view from the above.
I am therefore not in the slightest doubt that this appeal tacks merit. The sole issue shall be and is hereby resolved against the appellant. In other words, I agree with the trial court and the court below that having regard to the facts and circumstances of this case, the prosecution proved the guilt of the appellant beyond reasonable doubt. The appellant was rightly convicted and sentenced by the trial court which judgment was correctly affirmed by the court below.
In the circumstance, this appeal for lacking in merit deserves to be dismissed. Accordingly, it is dismissed. The judgment of the court below delivered on 11th July, 2012 which affirmed the decision of the trial court is hereby affirmed.
NWALI SYLVESTER NGWUTA, JSC: I have had the privilege of reading in its draft form the lead judgment prepared and just delivered by my learned brother, Ariwoola, JSC.
I entirely agree with the reasoning leading to the conclusion that the appeal is devoid of merit and ought to be dismissed.
I wish to add a word or two on the concept of dying declaration.
My learned brother had dealt with s.33 (1) of the Evidence Act. A dying declaration is an exception to the hearing-say rule. It is a declaration someone at the point of death, whose hope of life is gone, when the motive for falsehood is no longer there and the mind Is compelled by the most powerful consideration of the impending unknown to speak the truth. See Orshin Kuse v. State (1969) NJV1LR 153, R v. Woodcock (1789) 168 ER 353.
It is admissible only to prove the cause of death or the circumstances of the transaction leading to the cause of death of the declarant but not to prove motive for the crime or to explain subsequent or previous transactions. The declarant must have believed himself to be in danger of approaching death. See R v. Bebetebe (1938) WACA 67; Mono Garba v. R (1959) 4 JSC 162.
It was argued for the appellant that it was not proved that the declarant was at the point of death. The declarant need not satisfy the appellant that she was at the point of death before her statement can be used as dying declaration. The wound inflicted on the deceased and the part of the body on which the wounds were inflicted speaks volumes of her life expectancy for the infliction of the wounds.
It is immaterial that the deceased did not die at the point she made the declaration. The declaration could have been admitted as part of the material fact of the case as distinct from hearsay.
There is also the trumped up armed robbery the night the deceased was attacked, an event known only to the mother of the appellant and her sons. It was neither reported to the Police nor to the Vigilante that protected the community.
Any doubt about the phantom armed robbery was dispelled when the bandage with which the appellant's mother wrapped her head and leg was removed to show that she had no scratch on any part of her body. It was an attempt by a mother to save the life of a son gone wrong.
Based on the above and the better and more comprehensive reasoning in the lead judgment I also dismiss the appeal as devoid of merit.
Appeal dismissed and the judgment of the Court below affirmed.
MARY UKAEGO PETER-ODILI, JSC: I am in total agreement with the judgment delivered by my learned brother, Olukayode Ariwoola JSC and to register my support with the reasons, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Owerri Division coram: Uwani Musa Abba Aji; Mojeed A. Owoade and Haruna M. Tsammani JJCA affirming the conviction of the Appellant by the High Court of Imo State presided over by C, O. Ohakwe J.
The Appellant was one of the three accused persons found guilty of the offence of murder under Section 319 (1) of the Criminal Code, Cap 30 Vol. II Laws of Eastern Nigeria 19963 as applicable in Imo State.
The full details of the background facts are well articulated in the lead judgment and I shall therefore not repeat them here.
L. M. Alozie Esq., learned counsel for the Appellant adopted the Brief of Argument of the Appellant filed on 5/8/2013, In it was identified a single issue which is as follows:-
Whether having regard to the facts and circumstances of this case, the prosecution proved the guilt of the Appellant beyond reasonable doubt.
Mrs. A.N. Eluwa, the Solicitor General of the Ministry of Justice Imo State, as counsel for the Respondent adopted the Brief of Argument settled by C. C. Dimkpa (Mrs.), Administrator-General of the Ministry of Justice, which brief was filed on the 21/11/2013 and deemed filed on the 18/2/15. In it was distilled a sole issue which is, viz:-
Whether the Prosecution did not prove the guilt of the Appellant beyond reasonable doubt.
The opposing issues being similar in content, it does not matter which one is utilised but for ease of reference, I shall use that of Appellant.
Whether having regard to the facts and circumstances of this case the prosecution proved the guilt of the Appellant beyond reasonable doubt.
Learned counsel for the Appellant contended that the case presented by the prosecution is so materially contradictory and confusing and it cannot be said that the prosecution proved its case beyond reasonable doubt. That PW2 did not take part in the investigation nor witness the incident. That PW1 and PW3 did not witness the incident either and went ahead to give evidence in material conflict with each other and in conflict with that of PW5. He stated that it is not for the court to pick and choose who spoke the truth. Also, that the evidence of PW6 and PW7 were contrary to what the other prosecution witnesses put across.
It was also submitted for the Appellant that there is a crucial lacuna in the case of the prosecution as there is no direct evidence on the identification of the body of the deceased examined by the doctor who made the autopsy report i.e. Exhibit B. He cited Nsu v State (i960) 2 NCNR 23 at 32.
On Exhibit A, the alleged dying declaration, the Appellant submitted that the deceased was in imminent danger of approaching death was absent and so it was erroneous to convict the Appellant based on Exhibit A. He cited Hausa v State (1994) 6 NWLR (Pt 350) 281 at 287; Okoro v State (2012) 4 NWLR (Pt.1290) 351 at 371 - 372 etc
Learned counsel for the Respondent contended by stating that in totality, the evidence of the prosecution was not contradicted by the Appellant and that the prosecution had proved the charge of murder against the appellant beyond reasonable doubt. That PW1 gave evidence of what she saw while PW1, PW3 and PW7 gave evidence of what the deceased told them while PW1 and PW6 gave evidence of how Exhibit the dying declaration of the deceased was obtained. That the prosecution amply proved the identity of the Appellant as one of the persons that attacked the deceased in her house on the early hours of 30/11/2005 and inflicted those deadly injuries on her. That the prosecution also established that the defence of an armed robbery attack on the family of the Appellant was a ruse to cover up the heinous crime.
What we are faced with in this appeal which is against the conviction and sentence of the Appellant for murder which were affirmed by the Court of Appeal at the base of it all is the fact that in a trial for murder, the prosecution must prove its case beyond reasonable doubt and in so doing, the essential ingredients must be made out. These essential elements are thus:-
1. That the death of the human being has actually taken place.
2. That the death was caused by the accused.
3. That the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act.
In proof of those elements, the prosecution could rely on direct eye witness account of the incident or circumstantial evidence. See Kaza v The State (2008) 7 NWLR (Pt. 1085) 125 at 163; Oludamilola v The State (2010) 181 LRCN 1 at 16; Mustapha Mohammed & Anor v The State (2007) LRCN 110 at 125; Adio v The State (1996) 2 NWLR (Pt. 24) 581.
The Appellant's standpoint is that the prosecution fell short of establishing as required by law the essential elements of murder beyond reasonable doubt. The Respondent disagreeing is strongly on the stand that they met the required stand in proof of the charge of murder against the Appellant.
For the first element which is the death of a human being, Cecilia Ogbonna, that is not disputed and in the second element that it was due to the injuries inflicted by the Appellant and others, while the Appellant distances himself from it, the prosecution through witnesses pinned him to the act, including the dying declaration of the deceased which was admitted as Exhibit TV, In respect to the third element that of carrying out the act with the intention of causing grievous harm or the consequence being the death of the deceased, the description of the nature of the injuries as rendered by even the medical doctor who carried out the post mortem, PW4 and the details in Exhibit TV show that the intendment in those who inflicted those injuries was nothing other than the resultant death of the victim. See Henry Nwokearu v The State (2013) All FWLR (Pt. 689) 1040 at 1065.
It is to be noted that PW2 Police Constable, Osuagwu Samson said on receiving the report of the wounding of the deceased, he got to the Federal Medical Centre, Owerri where the victim was taken and it was there he obtained her statement admitted as Exhibit A.
I shall quote the said Exhibit TV for clarity and thus:-
"It all happened yesterday night but I cannot prompt the time. The boys entered my house namely Uzoma, Ugochukwu but I cannot remember their surnames and one Chukwuma who is tenant residing in our area. They came saying that they will kill me. Before I could make a report or words they started beating me with machetes and sticks. The forced the doors open when I was deeply asleep. They used their matchets gave me deep wounds on my head and used sticks to beat me all over my body very especially my shoulder and heart. I was very conscious when blood full all over my body. It was then they feel I am dead but I was in state of coma and then they took to their heels".
While the Respondent contends that Exhibit A is a Dying Declaration and capable of being the exception to the hearsay rule, the Appellant refuses stating that there were doubts as to who really gave the deceased the injuries that killed her particularly when the evidence of the attack on the deceased is viewed in the light of the armed robbery attack which the defence put forward as having occurred that night of the incident. The Appellant said even though the court is obligated to consider all the defences open to an accused that had not been done in this case on behalf of the Appellant.
I cannot agree more with the Appellant that there is a bounden duty on the prosecution to attend to all the defences possible or available to the Appellant but that does not cover where the said defences have no leg to stand on as in this instance where the Appellant said armed robbers attacked the neighbourhood that night which account could not be supported by any viable or cogent evidence. Also, where the account put up by the Appellant and witnesses were effectively dispelled by contrary evidence. To balance out this matter of the possible defence as wanted by the Appellant to act in their favour, I shall recast the evidence of the witnesses of the prosecution in that regard.
PW6 testified inter alia:
"In the course of the investigation, I and my team went to the house of the 1st accused; we met his mother Ifeoma Okereke with bandages all over her head and legs. Some of her children on seeing the police ran away. She told us that armed robbers visited that compound and the late woman's compound in the night and they inflicted the injuries on her. I suspect her statement and the bandages she had all over her head. I removed all the bandaged on her head and discovered she had no wound, bruises on her head. I left some of the bandages in our office. I also arrested her. On reaching the office the remaining bandage on her were removed and it was found she had no wound or injury on her body .."
PW5 stated under cross-examination thus:
"From the statement of Ifeoma Okereke a neighbour to the deceased, she stated that four men masked broke into her room and robbed her money - the sum of $430,000 and it was when the men left her house that she heard the deceased shouting and because of fear she could not come out. From her statement there was an armed robbery in the area .. "
The situation of the Appellant on this armed robbery possibility is dispelled by the evidence of PW6 and PW7 that no report of armed robbery was made at the police station and the neighbourhood when taken alongside, the fact that the mother of the Appellant who claimed to have serious head injuries due to the robbery attack for which she had bandages and when the bandages were removed, no injuries were found. Clearly, the defences so called were considered by the two Courts below and found to be of no use in the light of what was on ground and the cases of Annabi v State (2008) 13 NWLR (Pt.12) 103; Adah v State (2008) 13 NWLR (PU103) and Ekana v State (2001) 11 NWLR (Pt.723) 1 are not helpful to the Appellant.
Indeed the two Courts below aptly considered Exhibit W and found it to be a dying declaration in accordance with Section 33(l)(a) of the Evidence Act and this Court is therefore handicapped to attempt to interfere with those concurrent findings which came about from proper analysis of the evidence adduced at the trial and nothing perverse in what the Courts did. See Eholor v Osayande (1992) 6 NWLR (Pt.249) 524.
In conclusion, from the foregoing and the well reasoned lead judgment, I resolve the issue against the Appellant and I have no difficulty in also dismissing the appeal.
I abide by the consequential orders as made.
MUSA DATTIJO MUHAMMAD, JSC: Having read in draft the lead judgment of my learned brother Ariwoola JSC, I agree with the reasoning and conclusion therein that the appeal lacks merit. I dismiss the appeal and abide by the consequential orders reflected in the lead judgment.
JOHN INYANG OKORO, JSC: My learned brother, Olukayode AriwooIa, JSC obliged me a copy of the lead judgment he has just delivered and I am in agreement with him that this appeal lacks merit and deserves to be dismissed. The Law Lord has meticulously and quite efficiently dealt with the sole issue formulated for the determination of this appeal. I may not improve upon what has been done but I shall make a few comments in support of the judgment. The facts have already been stated in the lead judgment and 1 shall not repeat the exercise.
The sole issue nominated by both parties for determination of this appeal reads:
"Whether having regard to the facts and circumstances of this case, the prosecution proved the guilt of the appellant beyond reasonable doubt"
Evidence on record indicates that nobody saw the appellant when he and two others inflicted the fatal wounds which later killed the deceased herein. However, the deceased informed the PW1, who visited her immediately after the attack of the names of the persons who attacked her which includes the appellant herein. The deceased who was dying on her hospital bed also made a statement to the police stating the same facts. I agree entirely that the said statement was a dying declaration which fixed the appellant to the crime.
It is well established in our law of evidence that a statement made by a person in imminent fear of death and believing at the time it is made that he was going to die, is admissible as a dying declaration. See section 40 (1) of Evidence Act 2011. See also Akpan vs the State (1992) 7 SCNJ 22, Akinfe v State (1988) 3 NWLR (pt 83) 729, Okokor vs State (1967) NWLR 189, Ikono vs State (1973) 5 SC 231.
The appellant raised a defence of an armed robbery attack on the night of the incident (ie which the deceased was attacked). He alleged that the armed robbers may have attacked the deceased. That defence was completely demolished by PW6 whose evidence was not controverted or contradicted. He testified that the defence of armed robbery attack was an after thought. He made it clear that the bandages rapped round the head of Ijeoma Okereke (appellants' mother) and the ones tied round her legs were made-up as there were no wounds found on the body when the bandages were removed. This shows that the defence was just to cover up the attack on the deceased but it failed to fly.
I am confident and I have no modicum of doubt that the prosecution proved this case against the appellant beyond reasonable doubt. I agree with my learned brother that the Court of Appeal was right to uphold the judgment of the trial court which found the appellant guilty and sentenced to death. The appeal is accordingly dismissed for lacking in merit.
L M, Ahozie, Esq. with Chinwe Amokaha (Mrs) for the appellant
A. N. Eluwa (Mrs) S.G. Imo state for the respondent.