Freeborn Akpoveta V. The State (2007)

LawGlobal-Hub Lead Judgment Report

GOERGE OLADEINDE SHOREMI, J.C.A.

This is an appeal against the judgment of High Court of Delta State presided over by OHWO J. in charge No. HCI/4c/99 wherein the appellant was on the 2nd day of April, 2003 convicted on two counts charge for the offence of murder and unlawful possession of firearms. The trial court sentenced the appellant to death for the offence of murder and deferred the sentence in respect of the offence of unlawful possession of firearms.

In the information filed in the High Court of Delta State Agbor Judicial Division, the Appellant was charged with the following offences.

1. Murder contrary to Section 319(1) of the Criminal Code Cap 48 Laws of Bendel State of Nigeria applicable to Delta State, and
2. Unlawful possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions) Decree 1984.

The prosecution to prove its case called six witnesses while the appellant testified on his on and called one witness.

The case of the prosecution is that on 4/7/99, the appellant unlawfully shot and killed one Emi Ossai (deceased) P.W. 1 was an eye witness who testified to the shooting incident and he testified to the effect that on the fateful day at about 7.15 P.M. he was walking along Okpogoro Street in Abraka in company of the deceased and one Ibi Judge when the appellant drove past and turned into a compound along the Street. The appellant packed his car took out a double barrel gun from his car and approached the group. He ordered them to stop and bail up after which he shot the deceased who held his stomach before falling down dead. The deceased died on the spot.

The double barreled gun was tendered as Exhibit E. It was also alleged that the appellant has no Firearm Licence.

The appellant denied the charge of murder and testified that on the fateful day he was attacked by four armed robbers who shot at him while he was seated in his car. He claimed that the robbers ran away but later resurfaced down the Street and in a bid to scare them away he shot at them it was later that he knew that one of them was dead and he made a report at the police station Abraka. The appellant also denied the charge of unlawful possession of firearms and hat Exhibit L was the licence.

Counsel on both sides addressed the court and in a considered judgment the trial Judge found that the prosecution had proved its case against the appellant beyond reasonable ground.

Being dissatisfied with the judgment the appellant appealed to this court by leave of this court granted on 23/3/05. The grounds of appeal filed by the appellant are deemed filed wherein. It contained (31) Thirty one grounds. I state them hereunder without their particulars.

“GROUNDS OF APPEAL

GROUND 1:

The learned trial Judge erred in law when he held thus:

“All through the stories told by the accused person both in his statement to the police and his evidence in court I cannot see what was robbed from him. There is no evidence of anything capable of being stolen, taken away from the accused on the date in question.”

GROUND 2

The learned trial Judge erred in law when he held as follows:

“The evidence of the accused in court about multiple gun shots is a made up story calculated to throw dust into the eyes of this court. To show how malicious and dangerous the accused is in the area of telling lies, the accused went to the extent of saying in Exhibit “Q” that a locally made single barrel gun was recovered from the “shot robber”.

GROUND 3

The learned trial Judge erred in law when he held thus:

“I therefore have no hesitation in dismissing the entire case for the defence about the recovery of Exhibit “M” on the side of the deceased as a fabricated and baseless piece of evidence on which the deceased rested his puerile defence suggesting a cross fire between him and armed robbers.”

GROUND 4

The learned trial Judge erred in law when he held that 1st DW was brought to court to corroborate the puerile defence of the appellant.

GROUND 5:

The Learned trial Judge erred in law when he held that the gun Exhibit “M” recovered from the bush was put there either by the appellant on his way to make his report at the Police Station or by somebody else in an attempt to fabricate a case of robbery in a puerile attempt to justify the killing of the deceased.

GROUND 6:

The learned trial Judge erred in law when he held as follows:

“I find it impossible to believe, that the 1st PW known to the accused and a relation of the appellant would rob or attempted to rob the accused without a mask on his face. I do not find his conduct immediately after the incidence consistent with that of a robber.”

GROUND 7

The learned trial Judge wrongly evaluated the evidence and arrived at a wrong conclusion when he held this:

“I believe that 1st PW right from the time he reported to the police and was detained for armed robbery gave a consistent story wherein the 6th prosecution witness after a detailed investigation found there was no attempted robbery on the deceased.”

GROUND 8:

The learned trial Judge erred in law when he believed the evidence of 2nd PW who said he heard only one gun shot on the date in question at the scene where the deceased was killed.

GROUND 9

The learned trial Judge erred in law when he dismissed the evidence of the defence relating to multiple shots or cross-firing.

GROUND 10:

The learned trial Judge misdirected himself in law when he held thus:

“I am still satisfied that the 1st PW is a witness of truth and after personally observing this witness and making all due allowance for the fact that the 1st PW would ordinarily be based (sic) against the accused (sic). I formed a rather favourable impression of him and considered him to be reasonably truthful.”

GROUND 11:

The learned trial Judge erred in law when he relied on the case of BABUGAN V. THE STATE. (1996) DTLR PART 1 PAGE 1.

GROUND 12:

The learned trial Judge wrongly evaluated the evidence and arrived at a wrong conclusion when he found as follows:

“That on 4th July, 1999 the 1st PW in the company of the deceased (Emi Ossai) and Ibi Jude were walking along Okpogoro Street, Abraka at about 7.15 pm after eating at the place of the 1st PW.” GROUND 13:

The learned trial Judge wrongly evaluated the evidence and arrived as a wrong conclusion when he held as follows:

“That while the trio (i.e. 1st PW, deceased and Ibi Jude) were about 25 metres from the said compound they heard the shout of “stop there” which brought them to a halt.”

GROUND 14:

The learned trial Judge wrongly evaluated and arrived at a wrong Conclusion when he found as follows:

“That on turning to see who shouted the 1st PW saw the accused pointing the double barrel gun Exhibit “E” at them.”

GROUND 15″

The learned trial Judge erred in law when he found as follows:

“That the accused thereafter ordered them to “bail up” which made the 1st PW, the deceased and Ibi Jude to raise their hands”.

GROUND 16:

The learned trial Judge erred in law when he found that the appellant Fired his gun Exhibit “E” at the deceased who died on the spot.

GROUND 17:

The learned trial Judge erred in law when he held as follows:

“From the above findings it is clear from the evidence that the story of the defence that he merely shot at the air to scare away robbers or suggesting any self defence on being shot at by the robbers is far from real and the demeanor of the appellant and his witness in the box portrayed them as cruel and heartless liars. I reject the entire defence of the accused and his witness which tend to hide the dispeakable conduct of the appellant in this case.”

GROUND 18″

The learned trial Judge erred in law when he held that the appellant cannot avail himself of the defence of self defence in this case.

GROUND 19:

The learned trial Judge erred in law when he held that the act of the appellant in shooting at the deceased was intended with knowledge that death or grievous bodily harm was its probable consequence.

GROUND 20:

The learned trial Judge misdirected himself in law when he held as follows:

“I have on my own considered the defence of movable property in this case the car which appellant at a stage said the robbers had attempted to disposes him of and I am of the view that on shooting and killing the deceased the appellant is not entitled to the defences contained in sections 290 and 291 of the Criminal Code”.

GROUND 21:

The learned trial Judge erred in law when he held that there are no material contradictions in the evidence of the prosecution’s case capable of raising a reasonable doubt in favour of the appellant.

GROUND 22:

The learned trial Judge misdirected himself in law when he held as follows:

“I am aware evidence pointed to the facts that the father of the deceased wrote a petition to the Commissioner of Police alleging the deceased was killed by the appellant as a result of a love tussle over a girl, since the father of the Deceased was never present at the scene of crime and was not a witness in this case I regard that petition which was Found to be false by the police investigation as a mere Statement to win the sympathy of the police to lure them into investigating this case which in actual fact resulted in the charge against the appellant for murder instead of the case of armed robbery which the appellant had smartly reported at the Police Station against the 1st PW and the deceased.”

GROUND 23:

The learned trial Judge erred in law when he held that the prosecution has proved that the appellant murdered Emi Ossai beyond reasonable doubt.

GROUND 24

The learned trial Judge erred in law when he held that “there was no robbery or attempted robbery on the person of the accused at any time on 4/7/99”.

GROUND 25:

The learned trial Judge erred in law when he held that “the gun Exhibit “M” recovered from the bush was put there either by the accused on his way to make his report at the Police Station or by somebody else in an attempt to fabricate a case of robbery in a puerile attempt to justify the killing of the deceased.”

GROUND 26:

The learned trial Judge erred in law when he held that the only shot fired on the night of 4/7/99 where the deceased met his death was fired by the accused person.

GROUND 27:

The learned trial Judge erred in law in convicting the appellant of the offence of murder.

GROUND 28:

The learned trial Judge erred in law when he held that “from the totality of the evidence before me, I am satisfied beyond doubt that the accused had no valid license to possess Exhibits “E”, “F” and “F1”.

GROUND 29:

The learned trial Judge erred in law and which said error occasioned a miscarriage of justice when he held at the interlocutory stage of the trial that the appellant and his witnesses cut the impression of skillful but unconvincing liars.

GROUND 30:

The learned trial Judge erred in law when he placed much reliance on the evidence of PW1, Mudiaga Emamovwe.

GROUND 31:

The conviction and sentence of the appellant is unreasonable, unwarranted having regard to the evidence.

The appellant distilled 11 (Eleven issues for determination from the 31 Grounds of Appeal set out as follows:

(1) Was the learned trial Judge right when he held that The appellant could not have been robbed since he Could not find anything that was robbed from the Appellant? (Ground 1)

(2) Was the learned trial Judge right in law when he held That the appellant is a liar? (Ground 2 and 3)

(3) Was the learned trial Judge right in law when he held That DW1 was brought to court to corroborate the Puerile defence of the appellant? (Ground 4)

(4) Did the learned trial Judge properly evaluate the evidence Led in this case? (Ground 5,6,7,8,9,10,12,13,14,15,16,17,21 22,23,24,25,26,28 and 30)

(5) Was the learned trial Judge right in the application and Reliance on the case of BABUGAN v. THE SATE (1996) 7 DTLR (PT.1) PAGE 1 (Ground 11)

(6) Was the learned trial Judge right in law when he held that the appellant cannot avail himself of the defence of self defence? (Ground 18)

(7) Was the learned trial Judge right in law when he held that the act of the appellant was intentional? (Ground 19)

(8) Was the learned trial Judge right in law when he convicted and sentenced the appellant of the offence of murder?

(Ground 27)

(9) Was the learned trial Judge right in law when he held at the interlocutory stage of the trial that the appellant and his witnesses cut the impression of skillful but unconvincing Liars? (Ground 29)

(10) Whether the conviction and sentence of the appellant is Reasonable, warranted, having regard to the evidence led at the trial? (Ground 31)

(11) Was the learned trial Judge right in law when he held that the appellant had no valid licence to possess Exhibits “E”, “F” and “F1”.

On a perusal of the issues formulated and reading through the submission of the learned counsel for the appellant the issues as formulated in 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 are interwoven, overlapping and could be taken as argued together by the appellant.

I agree with the Respondent that they are related and simply amount to a complain by the appellant that the prosecution did not prove the charge as laid. It will therefore be neat and proper to treat the said issues together in order to achieve concise and cohesive presentation.

The appellant adopted his brief of argument deemed filed on 23/3/05 while the respondent also adopted and relied on his brief dated 16/11/05 filed on 29/11/05.

In the appellant’s brief, the learned counsel dealt much on the story as told by the appellant at page 64 lines 7-29 of the record and pointed out that there are material conflicts in the case of the respondent. He states as follows:

(1) While PW 1 and PW 2 claimed that no robbery took place Exhibit G says he appellant was robbed on the said date.

(2) While PW 1, PW 2, PW 6 said that PW 1 and the deceased Did not fire any shot, Exhibit G said they did.

(3) While PW 1, PW 2, PW 6 said that neither PW 1 nor the Deceased were involved in the robbery Exhibit G said the deceased and PW 1 were involved.

(4) While PW 1, PW2 and PW6 said that neither PW 1 nor PW2 Possessed any fire arms Exhibit G said they did.

He argued that the above are true issues in this case which create serious doubt in the Respondent’s case. This doubt ought to have been resolved in favour of the appellant. He also argued that there are corroboration to the appellant’s case. He said the appellant in his evidence said the robbers attempted to dispossess him of his car.

He argued that in spite of all the above, the trial Judge still held at Page 103 of the record as follows:

“The evidence of the accused in court about multiple gun shots is made up story calculated to throw dust into the eyes of this court.

To show how meticulous and dangerous the accused is in the area of telling lies, the accused went to the extent of saying in Exhibit Q that a locally made single barrel gun was recovered from the “shot robber”

The appellant argued that this is a wrong appraisal of the evidence before of the learned Judge. The finding of the trial Judge, therefore is neither supported by evidence nor the law citing ABDULLAHI V. KATSINA STATE HOUSING AUTHORITY (2000) FWLR (PT. 15) 2512 AT 5522. that ordinarily an appellate court will not interfere with the findings of fact of a trial court. An appellate court will however interfere where the trial court evaluated the facts but came to a wrong conclusion.

In challenging the evidence of the 1st PW he argued that it is not one that can be relied upon because same nakedly contradicts the evidence of PW 2 and Exhibit G as already highlighted under issues 1 and 2, and 3. Issue 4 is also based on contradiction in the evidence of the prosecution.

He argued that it is proper for the trial Judge to properly evaluate the piece of evidence critical and crucial to the fair and just determination of this appeal for the fact the 1st PW and the deceased were among the robbers that attacked the appellant. If this was so, the issue of the appellant intentionally shooting would not have operated in the mind of the trial Judge because same would not have arisen issue 4.

Issue 5 only challenged the reliance of the trial Judge on the case of BABUGUN V. THE STATE (1996) 7 DTLR (PT. 1) PAGE 17 which is ground 11 of the grounds of appeal. He said there were no contradictions in the case of Babugun as it exists in the instant appeal.

On issue 6 the appellant adopts his submission on issues 1,2,3,4. He submitted that the totality of the case under consideration together with the contents of Exhibit G at page 144 lines 26 – 38 the learned trial Judge was wrong to have held that the appellant cannot avail himself of the defence of self defence.

The appellant quoted the language of the court where the court said in the trial within trial as follows:

“I reject the entire evidence postulated by the accused and his two witnesses as they only cut the impression of skillful but unconvincing “liars.

The learned counsel for the appellant submitted that this holding of the trial Judge was at the interlocutory stage of the entire proceedings and therefore too early in the day in the cause of the entire trial of the appellant for the judge to have held as he did that the appellant and his witness “only cut the impression of skillful but unconvincing liars”.

I do not hesitate to state here that the issue is misconceived by the learned SAN in that the statement was made in the trial within trial which for all intents and purposes is a separate trial to determine the voluntariness of the statement of accused person and as right observed by the learned SAN the two witnesses that gave evidence for the appellant in trial within trial did not give evidence at the defence stage though the appellant gave evidence.

To me, there is no miscarriage of justice and this statement did not go beyond the Ruling in Trial within Trial.

After much argument of issues 1,2,3,4,5,6,7,8,9 and 10 the learned SAN urged this Court to resolve all the issues in the negative and in favour of the appellant.

On issue 11 the appellant argued that the evidence of the prosecution require an expert evidence to substantiate the spurious allegation which was made to make Exhibit ‘C’ to look unauthentic.

The allegation of super imposition made by PW 3 is a Criminal Offence which borders on forgery and/or uttering which in law must be proved beyond reasonable doubt. He argued that this piece of evidence confirmed that the appellant showed his firearms licence (Exhibit C) to the police at the earliest opportunity. He urged the court to resolve Issue 11 in favour of the appellant and allow the appeal and the judgment of the lower court set aside.

The respondent as noted above argued issues 1,2,3,4,5,6,7,8,9 and 10 together and argued that the prosecution has proved its case beyond reasonable doubt.

Citing EKPO V. THE STATE (1994) 9 NWLR PT. (368) 265 AT 265 by proving

1. That the deceased died
2. That the death was caused by the accused and
3. That the act or omission of the accused was intentional with Knowledge that death or grievous bodily harm was the Probable consequence.

The learned Attorney-General argued that there was an irresistible conclusion of the Judge in view of the confession of the appellant in Exhibits H, J & Q stating that the appellant killed the deceased because the deceased was an armed robber. This he said the appellant resiled from his confession, this is immaterial as it is settled law that a Court can act on a confessional statement even if an accused retracts it during trial See NWAEGBONYI V. THE STATE (1994) 4 NWLR (PT. 343) AT 150 The learned SAN referred to the 3rd Confessional Statement which reads thus:

“Although I was robbed by four armed men, I mistakenly shot Emi assai during the race pursuit Emi assai happened to be on stroll with his friends and they were mistakenly identified as robbers”

The learned trial Judge believed the evidence of PW 2, PW 4 and PW 6 and that Exhibit M the single barrel short gun was not recovered on the body of the deceased or even near the body of the deceased.

He argued that mere discrepancies if at all they exist, in the prosecutions case are not material contradiction.

He said a careful perusal of the testimony of PW 5 did not raise any material contradiction in the prosecutions case and that it is not every discrepancy that is a material contradiction in Criminal Law IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) AT 455

He also stressed that investigation was not concluded by 5 PW and that Exhibit G was not authorized by PW5 but based on the report of police men who first visited the scene.

On the question of self defence, he said the feeble grasp of the defence of self defence was rightly dismissed by the learned trial Judge and he urged this court not to disturb the judgment of the trial court.

On issue 11 the respondent said the appellant admitted possession Exhibit “E”, F”, and “F1” i.e. gun, cartridges and bullet to which the appellant had no licence. He said Exhibit C was claimed by the appellant to be his licence when Exhibit. C was found by the trial court to be in respect of weapon No. 60181 which is the same weapon for which another firearms licence was issued in favour of one Mr. Ovwigho Nelson Jessa and in addition the appellant could not produce the original copy of the so called licence. He urged the court to dismiss the appellant’s appeal having reviewed the evidence of Appellant and Respondent in this case and having set out the arguments of counsel I will now proceed to answer the issue as laid out by the appellant.

(1) Whether the trial Judge was right when he held that the Appellant could not have been robbed since he could not find anything that was robbed from the appellant – Ground 1.

It is true that the appellant narrated his ordeal with those he called robbers but the trial Judge putting the evidence of PW 1 together with the statement of the accused where he said he mistook the deceased

As one of the robbers that attacked him. The statement of the trial Judge in this respect did not occasion a miscarriage of justice. He rightly disbelieved the evidence of the accused and believed the evidence of PW 1. Therefore Ground 1 of the grounds of appeal therefore fails.

(2) Was the learned trial Judge right in law when he held that the Appellant is a liar.

It is the duty of the trial Judge to take evidence and evaluate same including the demeanor of the witnesses. This was the impression the trial Judge gathered from his evaluation of evidence. The Court of Appeal is denied the opportunity of seeing, hearing and forming an opinion of a witness. I also hold that the trial Judge is entitled to form his opinion and he has rightly formed his opinion when he disbelieved him as to evidence of multiple shots and that the locally made single barrel was recovered from the shot robber. The evidence was that the gun was found in a nearby bush and in fact it was in disuse.

Grounds 2 & 3 of the grounds of appeal fail.

(3) Was the trial Judge right in law when he held that DW 1 was brought to court to corroborate the spurious defence of the appellant.

When we look at the evidence of DW 1 in Chief and under cross examination it is very easy to a sensible man to discover that he could not have been a witness of truth and the learned trial Judge so found.

Ground 4 of the grounds of appeal fails.

(4) Did the learned trial Judge properly evaluate the evidence led.

In the case under consideration, the trial Judge observed as follows:

“The defence had ample opportunity to cross examine this witness. There was no suggestion ever made to the witness that any person going by the name of the 1st D.W. ever made a statement to 6th p. w. to the effect that he heard a gun shot from the purported robbers at the scene where accused claimed there were moves to rob him. I am satisfied the 1st D.W. was merely brought to this Court to corroborate the puerile defence of the accused and I have not the slightest doubt in rejecting the story about several gun shots as an after thought. The story of one of the robbers firing a shot at the purported scene of robbery is equally a made up story to me. On failure to cross-examine on material points in an opponent’s case, Belgore J.S.C. delivering the lead judgment in Okosi & Anor. V. The State (1989) 1 C.L.R.N. 29 at 39 said:

“In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully Admitted at trial. For when evidence is primary, opinion and not that of an expert and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negotiate that was left unchallenged.”

Oputa J.S.C. on his part at page 45 of the report put it this way

“By this failure to cross-examine P.W. 5 one is allowed to assume that 1st appellant was not disputing the facts the P.W. 5 deposed to.”

“After giving the entire evidence before me the most anxious consideration, I am of the firm view that the death of the deceased (Emi Ossai) resulted from the act of the accused person.

As the act of the accused person intentional with knowledge that death or grievous bodily harm was its probable consequence:

The only eyewitness to what transpired before the shooting of the deceased is the 1st P.W. There is no rule of law that in murder cases there can be no conviction on the evidence of a single witness if believed by the Court. In Okosi & Anor. V. The State (supra) Oputa J.S.C. at page 40 said:

“One solitary witness if believed can establish a criminal case, be it even murder.”

Evaluation of evidence is the duty of the trial Judge and where his judgment is not perverse the appellate court will not disturb the judgment.

Grounds 5,6,7,8,9,10,12,13,14,15,16,17,21,22,23,24,25,26,28 and 30 therefore fail.

(5) Was the trial Judge right in the application and reliance on the case of BABUGUN V. THE STATE (1996) 9 DTLR (PT.1) PAGE 1

The counsel to the appellant overlooked the fact that the appellant was known to the deceased and P.W. 1 said he ran away when he heard that the deceased and himself were to be framed for Armed Robbery and in any event the appellant had reported the matter to the police.

The trial Judge’s reliance on BABUGUN’s case did not occasion a miscarriage of justice Ground 11 therefore fails.

(6) Was the learned trial Judge right in law when he held that the Appellant can not avail himself of the defence of self defence?

The appellant confessed to this killing and he said in his statement Exhibit J where he agreed that the 1st P.W. and the deceased were on stroll and they were mistakenly identified as the robbers during the race. It is his evidence and that of P.W.1 and the deceased were ‘racing’ i.e. running.

It is settled law that to avail himself of the defence of self defence, the appellant must have been in danger.

The trial Judge rightly considered the defence and therefore the trial Judge was right when he held that the appellant can not avail himself the defence of self defence. Ground 18 therefore fails.

Was the learned trial Judge right in law when he held that the act of the Appellant was intentional?

The appellant’s counsel quarried the fact that the act of the appellant was not intentional what else can it be from the findings of the trial Judge. A mistake?

The law is trite that where a person discharges a firearm unintentionally and without attendant criminal malice or negligence, he will normally be exempted from criminal responsibility both for the firing and for its consequences. In other words in law for an event to qualify as an accident such event must be the result of an unwilled act an event which occurs without the fault of the person alleged to have caused it or an event totally unexpected in the ordinary cause of events.

See ADEKUNLE V. THE STATE 26 NSCQR PT. 2 PAGE 1367 AT 1379 -1380

The act of the appellant can not qualify as being not intentional from the evidence adduced by the prosecution. Ground 19 of the Grounds of Appeal fails.

8. Was the learned, trial Judge right in law when he convicted the appellant of the offence of murder.

The requirement in proof of murder from long line of decisions of the courts is settled beyond controversy and had almost become elementary that to secure conviction in a charge of murder the prosecution must prove

(1) That the deceased had died

(2) That the death of the deceased was caused that by the accused and

(3) that the act or omission of the accused caused the death of the deceased was intentional with knowledge that death or grievous harm was probable consequence.

See ADEKUNLE V. THE STATE 26 NSCQRPT. 2 PAGE 1367 AT PAGE 1381.

The learned trial Judge evidently was aware of the ingredients and in fact considered them at pages 96 – 98 as follows:

“In the State v Ogbubunjo & Anr. (2001) L.R.C.A. 125 at 140 Onu J.S.C. said:

“The essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction of the respondents For murder are:

1. That the deceased had died.
2. That the death of the deceased has resulted From the set of the accused.
3. That the act of the accused was intentional with knowledge that death or grievous bodily Harm was its probable consequence…”

See also Philip OMOGODO V. THE STATE (1981) 5 S.C.5 at 26 – 27 and EKPO V. THE STATE (1994) 9 N.W.L.R. (PART 368) 268 AT 269. The three essential ingredients just highlighted are therefore the points for determination in the first Count of Murder against the accused. I shall now take them in sequence.

Has the deceased died?

The person postulated in this case as the deceased is one Emi Ossai. It was submitted by Chief Osaweta learned Counsel for the accused that a doctor was not called to Establish the identity of the deceased as the said Emi Ossai could be living somewhere else. According to learned counsel the identity of the corpse and proof in court is a Legal requirement that must be fulfilled, failure which is Fatal to the prosecution’s case.

For this submission, the case of NSUGHANDO V. THE STATE (1980) N.C.R. 23 at 24 was relied upon. In reply Mr. Erebo the learned prosecuting principal Legal Officer Submitted that the evidence of 1st, 2nd, 4th and 6th Prosecution witnesses were to the effect that somebody known as Emi Ossai was alive as at 4/7/99 and there is unchallenged evidence that Emi Ossai met his death on 4/7/99. Learned prosecuting counsel referred me to exhibits ‘Q’ and ‘H’ the previous statements of the accused that Emi Ossai is dead. It was therefore the contention of prosecution counsel that the prosecution has established beyond doubt that the deceased is dead and there is no need to call the father of the deceased.

The law is that the fact of death is provable by circumstance Trial evidence, notwithstanding that neither the body nor any trace thereof has been found and the accused has made no confession of any participation in the crime. The locus classicus is R. V. ONUFREJEZYK (1955) 1 Q.B. 388. If the accused confesses to killing the deceased and there is corroboration of that confession then that evidence would be sufficient even if the accused subsequently denies making the confession. Now what is the evidence before Me?

The 1st P.W. gave eye witness evidence how Emi Ossai met his death on 4/7/99. His (1st P.W.) evidence as to the fact of the death of Emi Ossai was not challenged by the defence. Instead, suggestions were made to the witness that himself and the deceased were exchanging gun fire with the accused when the deceased met his death. 2nd P.W. testified how on 4/7/99 after hearing a gun shot went to the scene where a boy was lying down and found it was the body of Emi Ossai lying on the ground. Again the defence did not challenged his evidence on the fact that Emi Ossai died on that 4/7/99. Just like the 1st P.W., the defence merely suggested to the 2nd P.W. that there were jubilations because a notorious armed robber was dead. The 4th P.W. was the police officer who removed the corpse of Emi Ossai from the scene at Okpogoro Street Abraka on the night of 4/7/99. The defence never challenged his evidence that the corpse he claimed to have removed was that of somebody else and not Emi Ossai. The same applies to the evidence of 6th P.W. whose cross-examination was on the problems and Court cases the deceased had with his father before his death. In exhibit ‘H’ the statement of the accused to the police which accused has not denied in any form, the accused had this to say:

“The deceased (corpse) late Emi Ossai is a son to one Chief Oni Ossai. He live (sic) close to my mother’s compound at Ekrejeta Abraka before he met death.”

The accused himself in his evidence in Court said:

“At the second scene of crime the police recovered the body of one of the robbers lying face down whom they identify as Emi Ossai.”

The accused witness (1st D.W.) gave evidence in line with the accused case.

There is therefore abundant evidence from both the prosecution and the accused himself that Emi Ossai is dead. To now suggest that Emi Ossai could be living somewhere else is like Building castle in the air. I am satisfied beyond all reasonable doubt on the fact that the deceased Emi Ossai has died. I am also Satisfied beyond all reasonable doubt on the evidence before me that the deceased died on 4/7/99.”

Issue No. 8 is therefore answered in the affirmative and therefore Ground 27 of the Grounds of appeal fails.

I have earlier discharged Issue No. 9 as very unmeritorious.

Ground 29 of the Grounds of appeal therefore fails.

10. Whether the conviction of the appellant is reasonable, warranted having regard to the evidence led at the trial.

It should be remembered that the law require the guilt of an accused person to be proved beyond reasonable doubt and if there is any doubt the accused person must be given the benefit of that doubt.

ONORFOWOKAN V. THE STATE LOCUS Classicus Vol. 2 Page 25 at page 26.

In BAKARE V. THE SATE (1987) 1 NWLR Pt. 52, 579 at 587/8 the Supreme Court dealt with the meaning and the extent of the concept of proof beyond reasonable doubt. It was emphasized that absolute certainty is impressible in any human endeavour including the administration of Criminal Justice. Proof beyond reasonable doubt will therefore not admit plausible or fanciful possibilities and use them to defeat the cause of justice. It merely admits of a high degree of cogency with an equally low degree of probability.

The learned counsel for the appellant made so much force about contradictions in the case of the prosecution. I can not fathom any contradiction and if there is any it is not material. Before any contradiction or discrepancy in the evidence of the witness for the prosecution can be fatal to the prosecution case, the conflict or contradiction must be substantial to the main issue in question before the trial court. This is because it is only when the inconsistencies or contradictions are substantially fundamental to the main issue before the trial court and therefore create some doubt in the mind of the trial court that an accused is entitled to the benefit of it.

See BOLANDE V. THE STATE 1 Nigerian Criminal Case Page 342 at 357.

It is trite law that the assessment of credibility of a witness is a matter within the power of the trial court. The court also has the privilege of believing a witness or disbelieving him and accepting the evidence of the prosecution in preference to the evidence adduced by the defence.

Issue No. 10 is also answered in the affirmative. Ground 31 of the Grounds of Appeal therefore fails.

Issue 11. Was the trial Judge right in law when he held that the appellant had no valid licence to possess Exhibit ‘E’. ‘F’, ‘F1 ‘?

The appellant admitted possessing Exhibits ‘E’, ‘F’ and ‘F1″. In Exhibit H a statement made by the appellant, he admitted that he only had an application for a licence which was being processed. The photocopy of a licence produced is in respect of weapon No. 60181 with the name of Ovwigho Nelson Jessa. The trial Judge compared Exhibits N and C which was mutilated and he rightly concluded from the evidence before him that the appellant had no valid licence to possess Exhibits ‘E’, ‘F’ and ‘F1″. The appellant was expected to produce a valid and genuine license. This he fails to do.

For the above reasons, I see no reason why I should disturb the judgment of the lower court. All the grounds of appeal fail.

I affirm the judgment of the lower court and I hereby dismiss this appeal as unmeritorious.

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Other Citations: (2007)LCN/2253(CA)