Chijioke Ubani & Anor V. The State (2002)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A. 

The two appellants and Abaitha Okendu Ubani had appealed to this court, against their conviction and sentence of death for the offence of murder. Separate briefs were written for each of the appellants.

The appeals were taken on the 30th of April, 2001, and judgment was delivered on the 12th day of July, 2001, in respect of Abaitha Okendu Ubani alone by mistake. It was after the judgment that the learned Counsel for the appellants drew our attention to the mistake and we had to re-hear the appeals of the remaining two appellants.

It is advisable that where appellants are tried together by a lower court as in this case, a single brief in respect of appellants should be filed in order to avoid this kind of mistake. While it is the law that notice of appeal must be filed separately in respect of each appellant in a criminal matter, there is no law prohibiting the filing of a joint brief in respect of several appellants in a criminal matter where their interests are the same and not in conflict. See Order 6 rule 6 of the Court of Appeal Rules which reads:

“6. All parties, whose interests are identical or joint shall file joint briefs, and separate briefs may be filed only by those parties whose interests are separate or in conflict.”

On arraignment the present two appellants and four others were charged with conspiracy contrary to section 516A of the Criminal Code, Cap. 30, Vol. II of the Laws of Eastern Nigeria applicable to Abia State, and kidnapping contrary to section 364B of the Criminal Code.

At the close of the prosecution’s case the learned trial Judge, Isuama, J., on his own altered the charge to one of murder. The case of the prosecution was that the appellants, co-accused and others now at a large went to the house of the deceased, Alison Abajuo, who had earlier been warned to vacate the premises he was living failing which he would face dire consequences, descended on him and beat him mercilessly until he fell down. They dragged him to the house of one Erondu of Ajasu village. As a result of their aggravated assault the victim died and was buried near a pit latrine.

At the trial the appellants opted not to go to the witness box. The appellants and other co-accused denied the charge of murder. The trial court convicted them and sentenced them to death.

Dissatisfied with their conviction the appellants appealed to this court and the learned Counsel for them filed a brief of argument in respect of each of them and formulated the following issues for determination:

“1. Was the charge of murder proved. If the answer is in the affirmative, were the appellants implicated in the murder?

Was the evidence before the learned trial Judge enough to lead to one irresistible conclusion and to warrant a conviction of murder by circumstantial evidence?”

The brief in respect of each of the appellants is identical, word for word. That underscores my earlier remark that a joint brief should have been filed for all the appellants. It was a waste of paper and energy to repeat the brief in several places when one joint brief would have been enough.

The respondent also filed a brief of argument and identified two issues for determination as follows:

“1. Whether there was sufficient evidence to sustain a charge of murder against the accused persons.

Whether the case was otherwise proven (sic) beyond reasonable doubt.”

The only issue in this case, is whether there was sufficient evidence to sustain the charge of murder against the appellants.

Now, in the course of the trial in the court below the six accused persons including of course the appellants not only pleaded innocent of the charge, but denied having anything to do with the death by wilful and unpremeditated killing, otherwise the murder of the deceased, Alison Abajuo. The evidence of the P.W.1 and P.W.2, the daughter and the wife respectively of the deceased is emphatically that it is the accused persons, who perpetrated the dastardly act of aggravated assault which resulted in the death of the deceased. They were unshakeable on this singular testimony. The learned Counsel for the accused persons had tendered the statement to the police of these two witnesses to show that they had earlier made statements inconsistent with their testimonies before the court. It should be pointed out that it is not every discrepancy of a witness’s testimony vis-‘a-vis the ones made earlier on, that taints or stigmatizes the evidence of a witness, if it is not pejorative and has inconsequential effect on the substantiality of his testimony. A testimony is substantial and shall be given the effect of its strength, if it goes to the merit of the case in divulging the truth of the matter and has or possesses great convincing quality or characteristics. It is evidence that has clarity and does not lend itself to obscurantism. Such evidence that has vigour and is not beclouded with nebulous or vague attributes.

Therefore, where there exists statements which merely differ marginally in content and do not inflict any harm on the quality of the evidence, such discrepancy where it exists cannot definitely constitute a material contradiction. Let me set out some excerpts from the statement of P.W.1:

“As they were dragging him my father shouted and myself and my mother came out and saw them dragging him. They were beating him, they tore his cloths and left him naked. They were armed with gun, matchets and sticks. When myself and my mother saw this we started shouting and we tried to rescue my father but they refused and beat me up. One Nwaeze Nwogwugwu used the muzzle of his gun and hit me on my right hand.”

She made a second statement, much later i.e. on 4/4/91. The statement of the P.W.2 corroborated the statement of P.W.1 as regards to act of being taken away from the house which was followed by incessant beating and being dragged along the road. The statements of these witnesses when read without prejudice with their evidence in court can be seen to be identical. Of course what is not certain is whether the man died on the way or at wherever he was taken to. In his judgment the court below held as follows:

“Furthermore, P.W.1 and P.W.2 were consistent both in chief and under cross examination during their evidence before the court that the deceased was crying when the accused persons were beating him but that at the time his body was being dragged away by the accused he did not cry or shout. It simply raises the inference that the deceased had died in the hut or the sport where the accused persons attacked him with matchets, club… The evidence of the prosecution remains by and large uncontradicted and unchallenged. This evidence is very strong, overwhelming and compelling.”

To the contention of the appellants that there were contradictions in the evidence of the witnesses of the prosecution, the respondent’s counsel submitted that there was no obligation on the part of the prosecution not to assume the death of the deceased if he was abducted alive by a group of persons and the person has not been seen again after several years, contending that it was then 9 years, since the incident of abduction and merciless beating and yet the said Allison had not been produced. Of course, I am not unaware that where the testimony of a witness viewed as a whole contains patently clear contradictions and even improbabilities as to furnish a reasonable ground for doubting his credibility the trial court could reject his testimony. Besides, the evidence of a party to a case or even other interested witnesses should generally not be disregarded as considered inherently improbable in the absence of conflicting proof of circumstances justifying doubt as to where in particular there exists some minor discrepancy which does not touch the main issues in question. I shall pause here and advert my mind to the issue of the body found.

The learned trial Judge had stated as follows in his judgment:

“Put more succinctly, his abductors have not produced him. The inference that the deceased person is dead on these facts is compelling. It is supported by logic and law.”

In this case, the medical evidence was of no use as to the identity of the person whose consumed body was found near a pit latrine of the convicts. The medical doctor who examined the decomposed body was honest enough to say that it was not possible whether the body was that of the deceased – a man or that of a woman. This of course shows the lack of scientific and forensic analysis in our criminal trials in this country with the result that the court of trial invariably would be left to conjecture. However, in the case of Alarape v. State (2001) 84 L.R.C.N. at 634; (2001) 5 NWLR (Pt.705) 79, Iguh, JSC said:

“I think I need to emphasize that while medical evidence to prove the cause of death is desirable in homicide cases, this is not absolutely essential, but, to make the accuse criminally liable in a case of murder, there must be clear evidence that the death of the deceased was the direct result of the act of the accused. See R. v. Johnson Nwokocha (1949) 12 WACA 453. Medical evidence in proof of death is not essential in circumstances where:

(i) There is evidence of the death of the deceased; and

(ii) There is evidence that the death is as a result of the unlawful and intentional act of the accused person.

See Oka v. State (1975) 9-11 SC 17, Akpan v. State (1994) 25A L.R.C.N. 137; (1994) 6 NWLR (Pt. 368) 347 at 351; Babuga v. The State (1996) 7 NWLR (Pt. 460) 279. Death can be established by sufficient evidence other than medical evidence showing beyond reasonable doubt that death resulted from the particular act of the accused. See Azu v. The State (1993) 6 NWLR (Pt. 299) 303, Akpuenya v. State (1976) 11 SC 269 at 278; Ayinde v. State (1972) 3 SC 153, Essien v. State (1984) 3 SC 14 at 18, Adekunle v. State (1989) 4 NWLR (Pt. 123) 505 at 516.”

There are two elements in this case;

(a) whether the evidence of the star witnesses show that the deceased died at the scene of the crime including at the time he was being dragged along the road.

(b) whether he died hereafter.

These propositions contain the elements of direct or circumstantial evidence. The star witnesses stated that the accused persons including the appellants were directly responsible for the death. From the evidence available there is also the possibility of proof which includes circumstantial evidence. This may be why the learned trial court after stating that the star witnesses evidence were unshakeable and not even challenged beside the bare denial of the accused persons, stated that it was about 9 years the violence was done to the person of the deceased and his eventual abduction, during the time be was being dragged along the road took place, yet he had not been found and therefore the necessary inference is that the people who beat him mercilessly with clubs, butts of gun and other vicious weapons and dragged him along killed him. It must be stated that the admissibility of circumstantial evidence depends on whether it affords the basis for rational explanation of another fact. Therefore, in order to sustain a conviction on circumstantial evidence all the circumstances proved must be consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent or such as to exclude every other reasonable or rational hypothesis. It should have nothing to do with guesswork or suspicion. It is almost irresistible to state that if the persons, including the appellants did not kill the deceased on the spot, then there is almost irresistible presumption that he died later in their hands and they made away with his body. It should be noted that circumstantial evidence to be used as basis of conviction should be weighed with great caution particularly as in this ease where the crime is that of culpable homicide. Such evidence must have the quality or feature of great probative value and generally a conviction founded upon it may be sustained more particularly if the evidence is properly connected and other legal requirements have been met. It cannot be doubted that in this case the appellants along with others convicted are to my mind directly, circumstantially and inferentially connected with the death of Alison Abajuo. I say this because in this case there are opportunities and possessions of the means of perpetrating the inhuman and atrocious act wrecking violence on the person of the deceased. I might comment that in the case such as this it is surprising that the accused persons did not give evidence on oath. This is an aside though.

The appellants contend that the case has not been proved beyond all reasonable doubt. With greatest respect, I do not share this optimism or submission. The question whether a case has been proved beyond all reasonable doubt must be premised on the appraisal of all evidence adduced and which have been seen to have weighed singularly heavily against the accused. It is based on a rationality arising out of the circumstances of the case that by all stretch of imagination the accused persons were the persons who committed the crime. See Tulu v. Bauchi N.A. (1965) NMLR 343; Rahman v. Commissioner of Police (1973) NMLR 87. This is because proof beyond all reasonable doubt is proof that precludes every reasonable hypothesis except that which it tends to support and it is proof which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion. Therefore, in a criminal trial for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable imaginable state of affair other than that of the accused guilt for it goes without saying that an accused shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. In the case before us, I have no doubt in my mind that the appellants were rightly convicted and sentenced. I dismiss the appeal and confirm the judgment and sentence of the court below.

Other Citations: 2002)LCN/1206(CA)