Eme Orji Vs The State (2008)
LAWGLOBAL HUB Lead Judgment Report
M. MUKHTAR, JSC
The appellant together with one Peter Enwereji were charged on three counts in the High Court of Abia State, holden at Aba as follows:-
“COUNT 1 Statement of Offence
MURDER – Contrary to Section 319 of the Criminal Code Vol. II Cap. 30 Laws of Eastern Nigeria 1963 applicable in Abia State.
PARTICULARS OF OFFENCE
PETER ENWEREJI and EME ORJI on the 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered CHIMA OBI JOEL.
COUNT 2: STATEMENT OF OFFENCE
MURDER – Contrary to Section 319 of the Criminal Code, Vol. II, Cap 30 Laws of Eastern Nigeria, 1963 applicable in Abia State. PETER ENWEREJI and EME ORJI on 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered Monday Okon.
COUNT 3: STATEMENT OF OFFENCE
MURDER – Contrary to Section 319 of the Criminal Code, Vol. II, Cap. 30 Laws of Eastern Nigeria 1963, applicable in Abia State.
PARTICULARS OF OFFENCE
PETER ENWEREJI and EME ORJI on the 9th day of July, 1994 at No. 1 Ukwa Road, Aba, in Aba Judicial Division murdered Ogba Aju.”
Both accused persons pleaded not guilty to the charges, and witnesses gave evidence. The learned trial judge after evaluating the evidence, and carefully considering the address of learned counsel, found both accused persons guilty of the offences they were charged and convicted them thus:-
“Finding/Verdict – On a calm view of the evidence before the court and the submissions of learned counsel for the parties, I find as a fact and hold that the prosecution have proved their case beyond reasonable doubt. I find each of the accused persons guilty of the murder of Chimaobi and in the process the killing of Monday Okon and Ogbati Aju – on 9th JULY, 1994 AS CHARGED. Each of them is accordingly convicted of murder.”
The convicted persons appealed to the Court Appeal, which in the case of the present appellant found as follows:-
“I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Erne Orji and the court below was right to convict him; and to sentence as the judgment of 6/5/2002 show. The appeal is refused. It is dismissed.”
Now, the 2nd accused has appealed to this court on 3 grounds of appeal. Briefs of argument were exchanged by learned counsel who adopted their briefs at the hearing of the appeal. Both learned counsel raised issues for determination in their briefs of argument. In the appellant’s brief of argument are the following issues formulated for determination:-
“(1) Having regard to the facts of this case whether the fact that the appellant did not immediately lie down when ordered to do so was enough circumstantial evidence against the appellant cogent and compelling enough to lead to the irresistible conclusion that he was a party to the offence.
(2) Whether having regards to the facts of this case the fact that the appellant led the assassins to the PW 1 and the fact he failed to follow the prescribed procedure of communicating with his employer after 8p. (sic) points to the guilt of the appellant in facilitating the unlawful act of aiding in the committal of the murders of the three deceased persons.
(3) Whether the fact that the appellant went into hiding and/or failed to raise alarm connotes the aiding or facilitating escape of the strange men thereby making him a party to the crime.”
In the respondent’s brief of argument are the following issues formulated for determination:
“(1) Whether the circumstantial evidence led in this case points irresistibly to the guilt of the appellant.
(2) Whether the defence of compulsion avails the appellant in this case
.
(3) Whether the prosecution proved the case against the appellant beyond reasonable doubt.
(4) Whether the Court of Appeal was right in affirming the conviction of and sentence of the appellant by the learned trial judge.”
I have already stated earlier on that the appellant appealed on three grounds, and there is nothing in the documents before me to show that the grounds were increased vide the order of this court, to warrant the raising of issues that surpass the grounds of appeal. Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant, and not raised capriciously. They must not out-number the grounds of appeal, for where they so out-number them there is the danger that some of the issues do not derive their source from the grounds of appeal, and therefore are not related to one another. It is trite that an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) page 527, (2001) 2 SCM, 16; Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) page 284, and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) page 469. Proliferation of issues as in the instant case must be discouraged. See Oyekan v. Akinrinwa (1996) 1 NWLR (Pt. 459) page 128. The issues in the respondent’s brief of argument being in excess of the grounds of appeal, I will adopt the issues in the appellant’s brief of argument for the treatment of this appeal, and will treat them together.
In proffering argument learned counsel for the appellant has contended that circumstantial evidence relied upon by the learned justices against the appellant was not cogent and compelling and does not lead to the irresistible conclusion that the accused committed the offence. He argued that before circumstantial evidence can form the basis of conviction the circumstances must clearly and forcibly suggest that the accused committed the offence. Reliance was placed on the cases of Lateef Adeniji v. The State 2001 13 NWLR part 730 page 375, (2001) 7 SCM, 1 and Adepetu v. State 1998 9 NWLR part 565 page 185. In reply the learned counsel for the respondent has argued that the guilt of an accused person can be proved by circumstantial evidence, and in this case the prosecution was at liberty to fall back to the best evidence available in the circumstance, (which was circumstantial evidence in this case). He referred to the cases of Chima Ejiofor v. The State (2001) 86 LRCN 1318, Paulinus Udedibia & Ors v. The State (1976) 11 SC 133. Learned counsel submitted that the circumstantial evidence against the appellant is cogent, compelling and points irresistibly to his guilt. He referred to the cases of Fatoyinbo v. A.G. Western Nigeria (1966) WNLR 4, Lori v. The State (1980) 8 – 11 SC 81, Adetutu v. The State (1998) 61 LRCN 45 19, MCGREEVY v. D. P. P. (1973) 1 All E. R. 503, Igabele v. The State (2006) 3 SCM, 143; (2006) 139 LRCN, 1831 and Francis Dorwede v. The State (2000) 82 LRCN 3038.
The pertinent question, at this juncture is, what are the circumstantial evidence in this case? It is on record that in his evidence in chief, PW1 said the following inter alia:-
“The second accused person opened the curtain or blind to my parlour or sitting room, he pointed at me to these strangers saying “See Chief. I then saw them the strangers bring out a rifle gun and brandishing the same the person holding the rifle gun ordered saying “Lie down all of you”. The second accused on that material time was still standing, where he had stood after opening the curtain of the parlour. I saw him clearly and he saw me and others.”
In the course of cross-examination P.W. 1 testified thus:-
“It is by 8. o’clock p.m. that the gate is officially closed. But this does not prevent any visitor who want to see me from coming in, provided the security men on duty allow such a visitor to come in after filling the visitors’ form that is always passed on to me for my indication as to whether to allow such a visitor or visitors in. As there is also an inter-com, the security men or man on duty, also call me after the official closing of the gate to inform me of any visitors around.
But on that day the 2nd accused person did not call me. Rather he brought the strangers into my parlour……………………………
Q:- Did you provide the security men or any of them with gun?
Ans:- We have no gun.
Q:- The two strangers who came to your parlour were armed with gun?
Ans:- That is correct.
Q:- And they were following the 2nd accused person behind while they were coming?
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Ans:- That is correct.
Q:- I suggest to you that the 2nd accused person was under arrest by those strange men when he brought them into your sitting room.
Ans:- I did not see them until they came into the parlour led by the 2nd accused person as I was sitting in my parlour.
Q:- The 2nd accused person, was under compulsion or duress to bring the strangers into my (sic) parlour.
Ans:- I don’t know. They did not tell me so I don’t know.”
Perharps the above scenario may have been better explained by the 2nd accused/appellant himself when in his evidence he said:-
“When I was asking them to come and sign our visitors’ book, one of them wearing a coat and putting on a tire (sic) also pulled out his own pistol and pointed it at me and told me to move. It was that fair one who had police gun the barater who gave me a slap and told me that if I talked again, that he would shoot me. So, I moved on and when we got to the PW1’s house, there is a place where visitors usually wait. I told them to wait there. I followed the backyard, and the (sic) followed me. I went through the backyard to enable me pass on a word or give a message through that person to PW 1 to alert him as to what was going on. But at the said backyard, I did F8not see anybody. The door was open at the residence of PW1. It was at that time that the one wearing a coat and tire (sic), told me that he is an ibo man and that he knows Eleke and Freeman and that if I took them to somewhere else other than PW1’s house or residence, that they will shoot me dead. Eleke and Freeman are the sons of PW1. As I did not see anybody to give the message, we passed or moved to one of the rooms and there was nobody there. We then moved into another room and there was nobody there. We then entered into the dining room and there was nobody there. Then finally we entered into the parlour of PW1’s sitting room…………………………………..”
(Underlining is mine)
Under cross examination the 2nd accused/appellant virtually reiterated this evidence in chief, and expatiated on some points especially on the suspicion of taking the strangers through the backdoor and his motive for doing so. In his testimony he said inter alia thus:-
“When they pointed their guns at me and I went with them to the house of PW1, we got to his waiting room where I asked them to stay so that I could pass through the back or backyard in order to inform those at the backyard that there are some people looking for our master, so, while I was going the armed robbers followed me.
Put:- You purposely went through back door so as not to give the occupants no chance to escape.
Ans:- Not true.
Q:- When the visitors ordered everybody to lie down, you did not follow the others to lie down because you felt that you were not included?
Ans:- Not true. I was gripped with fear.
Put:- You know the visitors quite well. That was why being a part of the deal, you felt you were not included and that was why you did not also lie down.
Ans:- Before God and man, I did not know the visitors.”
It is instructive to note that the above pieces of evidence were given on 3/2/99, and 18/3/2000, over five years after the 2nd accused/appellant made his cautionary statement to the police, as follows:-
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“I told them to come and feel (sic) the visitors book. At this juncture two of them drew their guns one was holding a pistol while the other had a barneter (sic) gun and fenced (sic) it on me. They ordered me to take them to my Director or they kill me. When we were going, as I have decided to take them. They warned me not to take them to any other persons house other than the Director’s house. They informed me that they know Eleke and Freeman the sons of the Director. When I got to the house of the Director Chief Ogba Chukwu in their company, I decided to take them through the back door. I did so because I was looking if I can find any person to pass information to the backyard I did not see any of the maids. I took them into the house through the backyard door. When we got into the first room we did not see anybody. We then entered into the dining room and lastly into the parlour where the Director and others were viewing the television and watching the World match going on. At this stage I called the Director and told him that the men with me wanted him”.
Perhaps I should point out here that my reason for reproducing these latter pieces of evidence is to show that the appellant was consistent in the story of his travails right from the period of the incident to when he testified in court some five years later. His narration of what happened right from when the robbers came in, to the fear of imminent threat to his life which they subjected him to, and the reason why he took them through the back door was consistent. The evidence of PW1 also corroborates the 2nd accused/appellant’s evidence on the mode of the appellant’s entry to PW 1’s residence through the back door. PW1’s evidence on the motive of the appellant in taking that entrance was punctured by the explanation of the appellant who told the court of his motive for doing so. Though circumstantial evidence may sometimes be conclusive, all other factors and surrounding circumstances must be considered carefully for they may be enough to adversely affect the inference of guilt. See Lori v. State. Udedibia v. State, and Adepetu v. State supra cited by learned counsel for the appellant. According to Iguh J.S.C. in the case of Iko v. State 2001 14 NWLR part 732 page 221, (2001) 11 SCM, 112 “……suspicion, no matter how high, cannot ground criminal responsibility”. The sight of the guns, the threat to his life were enough to unsettle the appellant and make him confused. That he did not lie flat when the others lay down as instructed by the intruders is not a score in favour of the prosecution, as it did not irresistibly point to the guilt of the appellant. The position of the law on circumstantial evidence is that before it can ground a conviction the evidence must be strong, cogent and point irresistibly to the guilt of an accused person. See Anekwe v. State supra and Aigbadion v. State 2000 7 NWLR part 666 page 686.
In the instant case, the appellant gave a lucid account of what happened from the moment the intruders entered the house, and that account in no uncertain terms was corroborated by the evidence of PW1 i.e. his motive of taking them through the backdoor etc. The reason why he ran away from the house and hid himself until they had left the premises. The appellant was also consistent in his evidence that he did not know the intruders. The pertinent question here is, what would a reasonable and normal man do in the circumstance? Instinctively the natural thing that comes to mind is the act of self preservation, most especially on the face of the confusion that preceded the callous act. The case of Abbott v. R 1976 3 AELR page 140 referred to by learned Attorney General in the course of the hearing of the appeal in this court may be relevant to a certain extent, but in the instant case, and looking at the surrounding circumstances and factors it cannot apply. With due respect, the lower courts did not give all the prevailing factors and circumstances careful consideration before arriving at their conclusions of conviction. The law is that before an accused person can be convicted of a criminal offence most especially one of such gravity as the instant case i.e. murder the prosecution must prove its case beyond reasonable doubt. See Section 138 of the Evidence Act Cap. 112, 1990 Laws of the Federation of Nigeria. Although beyond reasonable doubt has been said to be not beyond a shadow of doubt, (See Miller v. Minister of Pensions 1947 2 All ER 377, as was discussed in Akalezi v. The State 1993 10 LRCN 264); the present case to my mind is riddled with doubt. It is my view that the lower court was wrong when it found thus in its judgment.
“In the instant appeal it is inconceivable that a security guard will meet people he had never seen before and lead the men holding a gun to his employer. In doing so the employee failed to follow the prescribed procedure of communicating with his employer after 8 p.m. The conclusion of a reasonable man which is vindicated by the compelling circumstantial evidence is that Erne Orji knew the strangers, (2) that he knew why they looked for PW1 or knew their purpose. The conclusion leads to no other conclusion and point irresistibly to the guilt of the 2nd accused person in facilitating the unlawful act of aiding the committal of the murder of the three deceased persons or in any case the flight of the murderers after their acts of killing.
The 2nd arm of the circumstantial conclusion of guilt against Eme Orji is act of facilitating the flight of the assasins. By his testimony the accused Eme Orji went to announce the departure of the assasins. The accused person not only heard the gun shot by the strangers, he saw it when the assassins shot Chumaobi Joel in the head. The accused convict did not raise an alarm to prevent the safe departure of the assassins, his testimony show that he went into hiding till the assassins departed. By this act Eme Orji who led the assassins or murderers cannot claim ignorance of the heinous offence. The person who facilitated the commission of murder, is guilty as is the person who facilitated the flight of such a person who committed murder is according to the law equally guilty. The assassins are at large; the appellant led the assassins to the scene of murder. I have no reason therefore to disturb the conclusion of the learned trial judge, except to say that there is no direct or circumstantial evidence of the conspiracy before the court below. I agree and affirm the conclusion of the learned trial court that the circumstantial evidence concerning the 2nd accused convict lead to the irresistible conclusion that is compelling of the guilt of Eme Orji and the court below was right to convict him, and to sentence as the judgment of 6/5/2002 show.” Underlining above is mine.
As at the time the appellant was arrested and cautioned, and at the time he was arraigned and eventually tried, he must have perceived the danger he was in and the gravity and seriousness of the charge against him, and yet he did not at any of those stages divulge the names of the assassins. If truly he was in concert with them as it was alleged the very instinct of self preservation and protection would have forced him to rope them in, and not face the consequences alone, when infact he did not do the actual shooting. I mean I find this situation inconceivable. Clearly, prosecution has not proved its case beyond reasonable doubt, and it should have failed. See Woolmington v. DPP (1935) A. C. 462. Where a court entertains doubt on the guilt of an accused the law demands that such doubt should be resolved in favour of the accused. See
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Kalu v. State (1988) 4 NWLR (Pt. 90) page 503, Ikemson v. State (1989) 3 NWLR (Pt. 110) page 455, and Nnolin v. State (1993) 3 NWLR (Pt. 283) page 569.
In the light of the above discussions I resolve these three issues in favour of the appellant, and all the grounds of appeal to which they are married succeed. I am satisfied that the case against the appellant was not proved beyond reasonable doubt, and the court below erred in affirming the judgment of the learned trial court. I hereby allow the appeal and set aside the judgments of the lower courts. The appeal succeeds in its entirety, and the conviction of the appellant is quashed. The appellant is discharged and acquitted
SC 150/2005
