Emeka Mbachu V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C. 

The appellant herein, who was the accused at the trial High Court (Rivers State High Court) was the driver of a bus with Registration No. RV 1863 PC. At about 6:45pm along the Port-Harcourt – Aba expressway, by a place known as Artillary Junction, he was stopped by the members of the Road Marshall, known as Special Marshall, on the alleged offence of driving with only one headlight. The deceased a member of the Road Marshall, was assigned to book him for the alleged infraction. While the deceased was in front of the bus to examine the headlight, the appellant, allegedly drove over him, crushed him and drove away. The deceased was taken to a private clinic where he died shortly thereafter. After taking and evaluating the evidence from the parties, the learned trial judge found the appellant guilty of the offence as charged, convicted and sentenced him to death.

On appeal to the Court of Appeal, Port-Harcourt Division (Court below), the Court dismissed the appeal and affirmed the trial Court’s decision.

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Dissatisfied further, the appellant appealed to this Court on two grounds of appeal.

After settling briefs of argument in the Court, the parties made their written submissions in their said respective briefs. In his brief of argument, learned counsel for the appellant formulated the following issues for the determination of the appeal:-

1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the judgment of the trial Court that charge of murder was proved against the appellant beyond reasonable doubt as required by law.
2. Having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”

Learned counsel for the respondent adopted same issues for the determination of the appeal:-

1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the

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judgment of the trial Court that (the) charge of murder was proved against the appellant beyond reasonable doubt as required by law

2. Whether having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”

My Lords, the allegation in the first issue or issue (1) from both sides is on proof of the offence of murder against the appellant beyond reasonable doubt as required by law. So many literature abounds from time immemorial on the definition of the legal jargon “Proof beyond reasonable doubt.” It has now become certain that proof beyond reasonable doubt is not proof beyond “all shadow of doubt.” See: Woolmington v. DPP (1935) A-C 462; Oteki v. A-G Bendel State (1986) 6 NWLR (Pt. 24) 648. In our adversarial legal system, it is the duty of the prosecution in a criminal trial such as this, to prove beyond reasonable doubt, the guilt of a person accused or charged with a criminal offence. It is proof beyond reasonable doubt where the prosecution has adduced sufficient, credible and

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admissible evidence to establish the ingredients of the offence charged. It has never been the duty of the person charged with an offence to prove his innocence. See: Mbenu v. The State (1988) 3 NWLR (Pt. 84); Woolmington v. DPP (1935) AC 462.

Learned counsel for the appellant submitted that the contradiction in the testimonies of Pw1 and Pw2, which the Court of Appeal acknowledged, is a material one that creates doubt as to the intention (mens rea) of the appellant to kill the deceased. He argued that it will be unsafe, in such a situation to convict the appellant for the offence of murder. Learned counsel urged this Court to hold that the charge of murder against the appellant was not proved.

In his submission on issue 1, learned counsel for the respondent stated that the substance of the appellant’s perceived “contradictions” consists in the mere fact that where as the Pw1 testified that the appellant did not come down from the vehicle at the scene of crime. It was the shout of the deceased that attracted his attention. Pw2, on the other hand, testified that the appellant came out of his bus in anger.