Chief Emmanuel Ebri V The State (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellant and two other persons were charged with murder of Egoma Oden Obla. The case of the prosecution could be briefly stated. On 29th January, 2000 the appellant and two other persons abducted the deceased who has not been seen since then. The appellant and the two other persons beat up the deceased. They were all armed with guns. The deceased had a machete. The appellant and the two other persons struggled with the deceased to take the machete from him, they dragged him. The deceased shouted that Ekori people should not allow Mkpani people to kill him. And so the deceased was last seen in armed hostile crowd of Mkpani people.

Eight witnesses gave evidence for the prosecution. The appellant denied the charge. He raised alibi both in his statement to the Police and in oral evidence in court. The learned trial Judge found the appellant and the two others guilty of murder and sentenced them to death. On appeal, the Court of Appeal dismissed the appeal of the appellant. The court quashed the conviction and death sentence of the other two co-accused persons. The appellant has appealed to this court. The appellant formulated the following three issues for determination:

I. Whether the conviction and death sentence of the appellant can be sustained in the face of the acquittal of the two co-accused persons

II. Whether the prosecution established the case against the appellant beyond reasonable doubt to sustain the conviction and death sentence of the appellant

III. Whether the Court of Appeal was right to uphold the conviction and death sentence of the appellant solely on the failure of his alibi”

The respondent adopted the above issues formulated by the appellant.

Learned Senior Advocate for the appellant, Dr. T C. Osanakpo submitted on issue No.1 that when a court has totally discredited and rejected evidence of a witness and refused to use it as a basis of convicting an accused person, the court should decline to use the same evidence as a basis of convicting another accused person where the evidence linking the accused persons to the offence charged are inextricably interwoven and inseparable. In other words, if one is discharged and acquitted, the other should also be discharged and acquitted. He cited Adele v. State (1995) 2 NWLR (Pt. 377) 269 at 293.

Relying on the evidence of PW1, PW2 and PW3 learned Senior Advocate submitted that their evidence linking the appellant and the other two accused persons acquitted by the Court of Appeal are inextricably interwoven and inseparable. The sum total of the evidence of PW1, PW2 and PW3 is to identify the appellant and the co-accused persons at the scene of the crime, learned Senior Advocate reasoned.

It was the submission of learned Senior Advocate that the Court of Appeal having discredited and rejected the evidence of the three witnesses in respect of the 2nd and 3rd accused persons, it could not properly utilize the same evidence to uphold the conviction of the appellant. He submitted that the decisions in State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548 and Ikemson v. State (1989) 3 NWLR (Pt.1I0) 455 are distinguishable from the present case and therefore inapplicable.

Learned Senior Advocate Submitted on Issue No.2 that in a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Where the prosecution’s case is shaky the accused would be entitled to have the benefit of such doubt resolved in his favour, counsel contended. He cited Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686 at 704.

In a murder charge the burden is upon the prosecution to prove (a) that the deceased had died, (b) that the death of the deceased was caused by the accused and (c) the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence, counsel submitted. He cited Ogba v. The State (1992) 2 NWLR (Pt. 222) 164.

Learned Senior Advocate submitted that the prosecution did not prove the case against the appellant beyond reasonable doubt, as there was no credible evidence adduced by the prosecution of the death of the deceased. He cited the evidence of PW 1, PW2 and PW3 and the case of Amayo v. State (2001) 18 NWLR (Pt. 745) 251 at 280.

Learned Senior Advocate argued that the inference of the death of the deceased made by the trial court and the Court of Appeal was based on speculation rather than on evidence adduced by the prosecution. The prosecution, counsel argued, did not lead any evidence to show that the appellant caused the death of the deceased or that the death of the deceased was an intentional act of the appellant.