Abbey Mathew V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Benin Division of the Court of Appeal delivered on 12/12/ 2013 in appeal No:B/317C/2010 Coram: Ibrahim Mohammed Musa Saulawa, JCA; Ayobode Olujimi Lokulo-Sodipe, JCA; Tom Shaibu Yakubu, JCA.

The appellant and two others had been arraigned before the Edo State High Court of Justice, Uromi Judicial Division, holden at Uromi on two count charge of conspiracy to murder, punishable under Section 324 of the Criminal Code, Cap.48 Vol.11 Laws of the Bendel State of Nigeria 1976 now applicable to Edo State of Nigeria and Murder punishable under Section 319 (1) of the Criminal Code, Cap.48 Vol.II, Laws of Bendel State of Nigeria 1976 as applicable to Edo State.

The three accused persons were tried, found guilty, convicted and sentenced accordingly to 12 years imprisonment with hard labour on count 1 and to death by hanging on the 2nd count. Appeal by each of the three convicts was dismissed by the Court below, leading to the instant appeal by the 2nd convict.

Before the trial Court, the prosecution called seven (7)

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witnesses to establish the charge while the appellant testified, but did not call any other witness. The case of the prosecution is as follows:

The deceased- Chief Samuel Okhuelegbe sometime on 5th October, 2006 had petitioned the Uromi Police Division, reporting a case of malicious damage against the 1st accused – lyere Ijeabulu. On 17/10/2006, PW2, having been detailed to investigate the matter proceeded with PW4 to meet with the deceased petitioner in order to effect the arrest of the suspects. The said lyere Ijeabulu was then arrested. On their way back to Uromi, between Ebulen and Okigene, a group of youths from Ebole-Uzea, all carrying machetes and numbering over one hundred and fifty persons, who were doing community work on the road, blocked the way and prevented the Policemen from taking lyere Ojeabulu further. In the process, the deceased and the Policemen were beaten. The attackers tore the clothes of the deceased, and at a point, the deceased fell down. The PW2 eventually escaped and from his hiding requested for reinforcement from the Divisional Police Office at Uromi. But at the time the policemen arrived the scene, the deceased was no longer

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where he was with his attackers. They later traced the deceased back to Ebulen village and found him lying down face up in front of lyere Ojeabulu (1st accused’s) house in the pool of his blood with machete cuts all over his body and with his two legs completely broken. The deceased was then taken to the hospital where he later died.

The appellant and two others including the said lyere Ojeabulu were charged on the two counts of conspiracy to commit murder and murder. The appellant’s defence was total denial. He was however found guilty of the two counts, convicted and sentenced accordingly.

It is note worthy that on appeal to the Court below; the only ground of appeal filed by the appellant is the omnibus ground of appeal as follows:

“That the verdict or decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced.”

The appeal was however dismissed by the Court below leading to the instant appeal.

Briefs were filed and exchanged. The documents relied upon for the appeals are:

(i) Amended Notice of Appeal filed on 28/2/18 but deemed properly filed and served on 03/10/2018.

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(ii) Amended Appellant’s brief of argument filed on 28/2/2018 but deemed properly filed and served on 03/10/2018

(iii) Respondent’s 2nd amended brief of argument filed on 21/3/2018 but deemed properly filed and served on 03/10/2018.

(iv) Appellant’s reply brief of argument filed on 9/4/2018 but deemed properly filed and served on 03/10/2018.

The appellant formulated the following two issues for determination.

(i) Whether the Court below properly appraised and evaluated the evidence before it, thereby improperly affirming the conviction and sentence of the appellant for murder and conspiracy to murder. (Grounds 1 and 2)

(ii) Whether it was proper to ignore any statement in the proof evidence where drawing inferences from admitted facts and ascribing probative value to oral evidence especially where the prosecution failed to tender such a statement (Ground 3).

As shown above, no issue has been distilled from ground 4 of the amended Notice of Appeal meaning that the said ground has been abandoned and liable to be discountenanced and accordingly struck out. See;Madumere Vs. Okafor(1996) 4 AXNJ 73; Emespo J. Continental Ltd Vs. Corona Shifah – Rtsge

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Sellschaft MBH & Company (2006) 11 NWLR (Pt.991)365, (2006) 5 SC (Pt.1) 19; (2006) LPELR – 1126; Adelekan Vs. ECU-line NV (2006) 12 NWLR (Pt.993) 33; (2006) 5 SC (Pt.11) 32; (2006) LPELR 113.

The amended Notice of Appeal has four grounds of appeal but issues are distilled from only grounds 1, 2 and 3. No issue, having been formulated from ground four, the said ground is deemed abandoned and is hereby accordingly struck out.

The respondent formulated a sole issue for determination of the appeal as follows:

“whether or not the Court below was right in holding that the trial Court properly evaluated the evidence before it in finding the appellant guilty of the offence of murder and conspiracy.”

In arguing the appeal, learned appellant counsel took the two issues seriatim.

On issue No.1, he submitted that where a person is charged with the offence of murder, the sequence of enquiry should be (1) whether the deceased had died; (2) whether the accused person caused the death of the deceased; and (3) whether the act of the accused person was intentional with knowledge that death or grievous bodily harm is its

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probable consequence. He contended that the Court must examine, evaluate and make findings of fact to ascertain whether the prosecution proved the three ingredients sequentially in order to ground a conviction for murder against the accused person. He relied on Court of Appeal decision ofTegwonor Vs. State (2008) All FWLR (Pt.424) 1484.

Learned counsel referred to the findings of the Court below on pages 255-256 of the record and submitted that the Court below was in error to approve of the approach adopted by the trial Court in lumping together and effectively reducing to one, the two most essential ingredients of the offence of murder. He contended that this wrongful approach was adopted so as to excuse the burden of proof on the prosecution, which could not be discharged within the standard and sequence of enquiry provided by statute and enunciated in several decided cases. He submitted that as the two lower Courts did not find that the prosecution proved the two disputed ingredients of the offence of murder in the case, separately and sequentially, the appellant should be discharged and acquitted.

Learned counsel referred to the testimony of PW1

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at pages 65-68 of the record and contended that it was perverse for the Court below to endorse the improper evaluation of evidence by the trial Court. He submitted that the evidence of PW1 was about how, where and when the deceased died and who was last seen with him. He contended that the evidence of PW1 appears to puncture the fictitious stories told by PW2, PW3 and PW4. To reject off-hand, the evidence of such a prosecution witness or matters that are in issue is the clearest example of improper evaluation and the abdication of the duties of trial Court or even an appellate Court called upon to rehear a matter on the printed records. He submitted that the Court below failed in its duty to set the evidence of PW1 against that of PW2, PW3 and PW4 to see the material contradictions and inconsistencies complained of which a Court trying a case of murder cannot ignore without doing injustice to the accused. He referred to the testimony of PW1 on pages 60-67 of the record and compared it with the testimony of PW2 and contended that the two Courts below ought to have drawn inferences of fact from the failure of prosecution to explain

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the assurance PW2 gave PW1 that his father was well and safe at Ebulen even after the alleged attack. He contended that the Court below ought to have reviewed the evidence of PW1, PW2, PW3 and PW4 together, especially since PW2, PW3 and PW4 did not deny the evidence of PW1. And that if the Court below did not give a blanket endorsement to the findings of fact of the trial Court, it would have found that PW1’s evidence contradicted the stories told by the other prosecution witnesses, just as the evidence of PW2 did not agree with that of PW3 and PW4. He submitted that those contradictions raised doubt in prosecution’s case, and it was the duty of a Court called upon to evaluate such evidence from the printed records to resolve it according to law and in favour of the appellants, but this was not done. He relied on Ahmed Vs. The State (2001) FWLR (Pt.34) 438 and 455.

Learned counsel gave some instances of alleged perverse findings of fact in relation to the evidence of PW3. He finally stated that PW3 did not testify as to the death of the deceased or any grievous bodily harm done to him as suggested by the medical evidence. He contended that there

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was no evidence from PW3 that, the appellant was armed with any weapon. Hence, he concluded that the two ingredients of the offence were not proved against the appellant by PW3, contrary to the summation of the Court below and the trial Court. He urged the Court to resolve issue No.1 in favour of the appellant.

Appellant’s second issue is whether it was proper to ignore any statement in the proof of evidence when drawing inferences from admitted facts and ascribing probative value to oral evidence, especially where the prosecution failed to tender such a statement.

Learned counsel contended that no reasonable tribunal or Court of justice would convict the appellant if proper regard was given to the proof of evidence, showed that PW3 was not the eyewitness he claimed to be in the witness stand. He contended further that the Court below dismissed the appellant’s agitation that the failure of the trial Court to give due regard in the evaluation of evidence to the matter stated in the police report and the extra judicial statement of PW3 occasioned a miscarriage of justice.

He referred to the proof of evidence and the extra judicial statement of PW3 on record and submitted that

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had the Court below adverted to the extra judicial statement in the proof of evidence as it ought to, the decision of the trial Court could not have been affirmed. And there would have been no basis for accrediting the oral testimony of PW3 with probative value and convicting the appellant for conspiracy to muder and murder. He urged the Court to set aside the findings of fact or summations made by the lower Court as perverse. He urged the Court to resolve the issue in favour of the appellant and allow the appeal.

In arguing the appeal, the learned counsel to the respondent contended that having regard to the evidence before the Courts and the records, it is clear that the Court below properly evaluated the evidence before them and rightly came to the same conclusion that the appellant is guilty of the offences of conspiracy to commit murder and murder.

He referred to the testimonies of PW2, PW3 and PW4 and Exhibit P3 which is the appellant’s statement tendered by the Prosecution and was admitted without objection. Learned counsel referred to the testimony of the appellant during his examination-in-chief on page 90 lines 16-21 of the

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record of appeal. He contended that Exhibit P3 is undoubtedly a confessional statement which the Court can solely rely upon to convict the appellant. He relied on Musa v. The State (2013) 9 NWLR (Pt.1359) 214 at 244; Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360 at 387. He submitted that the Courts below were right in rejecting the evidence of the appellant as an afterthought in view of the contents of Exhibit P3 upon which the Court relied to convict him.

Learned counsel referred to the findings of the trial Court on page 161 of the records and the Court below on page 259 of the records.

On the argument of the appellant that the Court ought to consider the proof of evidence and should have considered that the evidence of PW3 was allegedly inconsistent with a part of the untendered proof of evidence, he submitted that the attack is unwarranted and unmeritorious. He contended that the said proof of evidence were never tendered in evidence at the trial. And the purport of the argument is that the trial Court ought to descend into the arena of justice by examining documents not demonstrated during a trial and

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fish for evidence to acquit the appellant. He submitted that no Court has such duty, relying onDuriminiya Vs COP (1961) NR NLR 70; Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt.620) 552 at 561.

Learned counsel contended that another defect in appellant’s argument is that during cross examination of the PW3, the appellant did not confront the PW3 with the alleged inconsistent previous statement. He submitted that the only use to which a previous statement allegedly made by a witness can be put is to contradict him during cross examination. Once the witness has stepped out from the witness box, the appellant has lost his right to make allusions to those previous statements. Having failed to cross examine the witness on these facts, the appellant is deemed to have accepted PW3’s evidence in Court as correct. He relied on Section 232 Evidence Act, 2011,Wankey Vs State (1993) 5 NWLR (Pt.295) 542; Amodu Vs. State (2010) 2 NWLR (Pt.1177) 47 at 76-76, Madumere Vs. Okafor (1996) 4 NWLR (Pt.445) 637 at 649; Hausa Vs. State (1994) 6 NWLR (Pt.350) 281.

Learned counsel contended that the consequence of the failure of the appellant to cross examine the PW3 on the

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evidence he adduced was fatal to the defence as the testimony remained unchallenged. He relied on Oforlete Vs. State (2000) 12 NWLR (Pt.681) 415 at 436.

Learned counsel referred to the arguments of the appellant in paragraphs 4.1.9-4.1.16 of his brief of argument and contended that it borders essentially on the credibility of PW3. He submitted that issues on the credibility of a witness are issues which the trial Court is best placed to address and make findings on but not for appellate Court, where it cannot be proved that there had been a miscarriage of justice in the assessment of the witness and evaluation of the evidence.

Learned counsel contended that from the demeanour of the witnesses before the trial Court, it is undeniable that the trial Court rightly adjudged that the prosecution witnesses were the ones telling the truth as against the accused persons. And the Court below concurred with the findings. He urged the Court not to interfere with the findings of the two Courts below.

On the argument of the appellant in paragraphs 4.1.4-4.1.7 of his brief of argument on the evidence of PW1, he contended

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that the evidence was directed to establish the element of murder, that the deceased has died and nothing more. A fact which the appellant conceded to at the Court below. He submitted that the contradictions highlighted by the appellant are immaterial and trivial, as they do not touch on the ingredients of the offence with which the appellant was charged. He contended that it is immaterial which hospital the deceased was taken to or who took him there. What was important was that the deceased is dead and his death is traceable to the injuries sustained from the attack on him by the appellant and others, and that by their acts the appellants intended to cause the deceased death or grievous bodily harm. He cited Dibie Vs State (2007) 9 NWLR (Pt.1038) 30 at 50; Adava Vs. State (2006) 9 NWLR (Pt.984) 152 at 167.

On the appellants argument that one Michael Anetor was not called as witness, learned counsel contended that the Prosecution is only under a duty to call witnesses who are vital to proving the offences against the appellant, and the defence cannot, during trial compel the prosecution to call a particular witness. He relied onArchibong Vs. State (2006)

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14 NWLR (Pt.100) 349. He submitted that Michael Anetor was not a vital witness.

Learned counsel submitted that the prosecution has led evidence which proves beyond reasonable doubt that the appellant committed the offence. He urged the Court to dismiss the appeal and affirm the judgment of the Court below which had earlier affirmed the conviction and sentence of the appellant by the trial Court.

As I stated earlier, the appellant filed a reply brief of argument to the respondent’s brief of argument. But it appears that the appellant does not appreciate the essence of a reply brief of argument. Ordinarily, the filing of a reply brief of argument is not mandatory in the sense of being compulsory. But where a respondent’s brief of argument raises issues or points of law not covered in the appellant’s brief, then an appellant ought to file a reply brief of argument in the best interest of his case. See; Popoola Vs. Adeyemo (1992) 3 NWLR (Pt.284) 748; Alimi Akanbi Dada Vs. Chief Jonathan Dosunmu (2006) 18 NWLR (Pt.1000) 134; (2006) 12 (Pt.2) SCM 108; (2006) 27 NSCQR 485.

In Aliyu Salihu Vs. Alhaji A. Wasiu (2016) 8 SCM 180;

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(2016) LPELR 26062, this Court reiterated that a reply brief is to be filed only in response to new argument of the respondent on law that has newly been raised by the respondent but was not covered by the appellant in his brief of argument. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court. A reply brief is said not to be a repair kit to put right any lacuna in the appellant’s brief of argument. See also; Dr. Augustine N. Mozie & Ors Vs. Chike Mbamalu & Ors (2006) 12 SCM (Pt.1) 306 at 320; Osuji Vs Ekeocha (2009) 10 SCM 72 at 85; (2009) 16 NWLR (Pt.1166) 81. A reply brief is not meant to afford the appellant an opportunity for reargument or another bite at the cherry. It is not meant to be used to repeat an argument or to extend the scope of the argument and submission in the appellant’s brief of argument. The appellant’s reply brief of argument filed in this case is much more than a reply brief. It is a complete re-argument of the appellant’s case all over, which is beyond the scope of a

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reply. In the circumstance, it is liable to be discountenanced and is accordingly struck out.

A careful consideration of the two issues formulated by the appellant from the grounds of appeal filed with the amended Notice of Appeal, will lead one to come to the conclusion that the following is the main issue for determination of the appeal:

“Whether with the total of evidence on record if properly evaluated by the trial Court, the Court below was right in affirming the conviction and sentence of the appellant for murder and conspiracy to commit murder.”

First and foremost, it is note worthy that the appeal to the Court below was fought on a sole omnibus ground of appeal as follows:

“That the verdict or decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced.”

From the above omnibus ground was formulated the following sole issue.

“Whether the trial Court improperly appraised and evaluated the evidence before it thereby improperly convicting the 1st, 2nd and 3rd appellants for murder.”

The Court below in considering the said issue observed that it was basically the correctness of the appellant’s conviction

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for the offence of murder that was being questioned having regard to the issue formulated.

After having reviewed the evidence adduced before the trial Court and the submissions of counsel to both parties, the Court below had come to the conclusion that the appellants failed woefully to show that the lower Court was wrong in its evaluation of the evidence of any of the witnesses fielded by the prosecution or that there was any material inconsistency in the evidence adduced before it in relation to any of the ingredients or elements of the offences with which they were charged. The Court below further held that there was no basis upon which the Court can interfere with the judgment of the trial Court regarding the appellants. The appeal was accordingly dismissed.

It has long been established that for the prosecution to secure conviction of a suspect for murder, the following three elements or ingredients must be proved beyond reasonable doubt.

(1) That the deceased actually died.

(2) That it was the act of the accused that caused the death of the deceased and;

(3) That the act of the accused which caused the death of

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the deceased was intentional and it was with the knowledge that it would result in death or grievous bodily harm would be the probable consequences of the act of the accused.

See; Alewo Abogede Vs. The State (1996) 5 NWLR (Pt.448) 270 (1996) LPELR 45; Igabele Vs. The State (2006) 6 NWLR (Pt.975) 1001; (2006) 3 SCM 143; (2006) LPELR 1441; Hakeem Fatai Vs. The State (2013) 10 NWLR (Pt. 1361) 1 at 22; (2013) 5 SCM 140 at 155.

The law is trite in criminal trials that the guilt of an accused person charged with the commission of an offence can be established by any or all of the following:

(a) The confessional statement of the accused;

(b) Circumstantial evidence and

(c) Evidence of an eyewitness.

See; Folorunsho Alufohai Vs. The State (2014) LPELR 24215; (2014) 12 SCM (Pt.2) 122; (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt.765) 198.

On the elements of the offence of murder with which the appellant was charged, there was no controversy on the first ingredient. That is, the fact that the deceased died was conceded by the appellant. Indeed, the trial Court noted on page 151 that the learned counsel for the appellant

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conceded the fact that deceased Samuel Okhuelegbe died. What the Court had to consider were the two other ingredients of the crime. This could be done by either direct or circumstantial evidence.

The trial Court relied on the testimonies of PW2, PW3, PW4, PW5, PW6 and PW7. Indeed it was noted that PW3 was positive in his evidence of the role played by each accused persons, in particular, the role played by the appellant. Even though the counsel to the appellant had urged the Court to reject the testimony of the PW3 for being a relation of the deceased, the Court refused. The trial Judge opined on page 155 of the record thus:

“I watched PW3 in the witness box, defence counsel was unable to shake his testimony during cross examination.”

On page 159 of the record the trial court had found as follows:

“As for the 2nd accused (the appellant), the evidence of PW3 clearly fixed him to the attack on deceased. Exhibit P3 corroborated the evidence of PW3 on the fact that 2nd accused took part in the beating of deceased. 2nd accused admitted that much in Exhibit P3″ (Brackets supplied)

Exhibit P3 was the statement of the appellant which was

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tendered and admitted without objection. In it on pages 27-29 of the record, the appellant admitted that he participated in beating the deceased and that he knew that his death resulted from the beatings. The Court relied on the testimony of PW3 and Exhibit P3 to convict the appellant. The Court below upon review of the case found as follows on page 259 of the record.

I have scrutinized the judgment of the lower Court painstakingly and I cannot but say that having accepted the evidence of PW3 as credible and having also properly invoked Section 8 of the Criminal Code, the said Court could not have properly arrived at any other conclusion save that the act of the appellants caused the death of the deceased and that the act of the appellants in this regard was intentional with knowledge that death or grievous bodily harm was its probable consequence.”

Learned counsel to the appellant had argued that failure of the trial Court to consider the statement on pages 47-48 of the record occasioned miscarriage of justice to the appellant. It is worthy of note that the said document was not tendered or placed before the trial Court. Even the proof

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of evidence, which is to criminal trials what pleadings is to civil trials. The facts contained in the proof of evidence will go to no issue unless they are tendered in evidence during the trial to enable the Court consider them with the proceedings. The Court cannot go in search of evidence for any of the party before it. Pages 47-48 of the record referred to by the appellant not having been tendered by either party was not part of the proceedings of the appellant’s trial.

Proof of evidence is to disclose a prima facie case sufficiently believed to link an accused with the alleged crime and justify proceeding with the trial.

There is no doubt that the trial Court considered and properly carried out evaluation of the available evidence adduced before it to arrive at the conclusion that the prosecution proved its case beyond reasonable doubt against the appellant. The Court below was therefore right with its conclusion, having properly appraised and evaluated the evidence before the Court. The Court did not ignore any statement as part of the evidence before the Court.

In the final analysis this appeal is unmeritorious and

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vexatious, to say the least. It is liable to dismissal and is accordingly dismissed. The judgment of the Court below delivered on 12/12/2013 is hereby affirmed.

Appeal dismissed.

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SC.176/2014