Mr. Samson Edorer & Anor V. The State & Anor (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A.

The 2nd and 3rd accused/appellants who were 2nd and 3rd accused persons were charged along with another accused person, one Ufuoma Paul Eto who was 1st accused at the High Court of Justice Delta State sitting at Oleh with the following offences:

STATEMENT OF OFFENCE: COUNT 1

Conspiracy to murder punishable under Section 324 of the Criminal Code Cap 48 Vol. II Laws of Defunct Bendel State 1976 as applicable to Delta State.

PARTICULARS OF OFFENCE

“Ufuoma Paul Eto (m) Samson Edeoreh (m) and Akpoghene Edeno (m) on or about the 12th day of June 2000 at Oleh within Oleh Judicial division conspired with one another to commit murder.

STATEMENT OF OFFENCE: COUNT II

Murder punishable under Section 319 of the Criminal Code Cap 48 Vol. II Laws of the Defunct Bendel State 1976 applicable to Delta State.

PARTICULARS OF OFFENCE

“Ufuoma Paul Eto (m) Samson Edoreh (m) and Akpoghene Edeno (m) on or about the 12th day of June 2000 at Oleh within Oleh Judicial Division murdered one Julius Oforofuo (m)”

The case proceeded to trial during which the prosecution called six witnesses and closed its case, whereupon the Appellants made a no case submission pursuant to section 286 of the Criminal Procedure Act.

Arguments on the no case submission having been taken, the learned trial Judge in a considered ruling delivered on the 8th March 2005 overruled the no case submission and held that there is a prima facie case against the appellants. It is against this ruling on a no case submission that the aggrieved appellants by a Notice of Appeal dated the 22nd April 2005 and filed same day have appealed to this court. The Notice of Appeal which consists of three grounds of appeal is contained on pages 39 and 40 of the interlocutory Criminal Appeal record reproduced hereunder as follows:

IN THE COURT OF APPEAL

HOLDEN AT BENIN CITY

APPEAL NO. CA/B/ /2005

SUIT NO. HCC/6C/200 I

BETWEEN

1.Samson Edoreh ) 2nd accused/appellant

2. Akpoghene Edeno ) 3rd accused/appellant

AND

The State ) Complainant/Respondent

1. Paul Ufuoma Eto ) 1st accused

Notice of Appeal

TAKE NOTICE that the 2nd and 3rd accused/appellants being dissatisfied with the decision contained in the ruling of M. Umukoro, J. sitting at the High Court of Justice of Delta State, Oleh, on 8th day of March, 2005 do hereby appeal to the Court of Appeal upon the grounds of appeal set out in paragraph 3 and will at the hearing of the appeal, seek the relief set out in paragraph 4.

AND the 2nd and 3rd accused/appellants further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. Part of the Decision of the Lower Court Complained of:
3. The learned trial Judge erred in law in overruling the no case submission in this case when:

(a. Essential element of the offence of murder was not established.

(b) Death of the deceased was not established.

(c) Evidence of PW4 and PW5 as to the identity of the alleged deceased on who post mortem was performed is contradictory.

(d) A Medical evidence was contradictory.

2. The learned trial judge erred in law in overruling a no case submission of the 15t accused person without considering the issues and submissions made by 1st accused person.

Further grounds of appeal shall be filed upon receipt of records of proceedings.

4. Relief Sought from the Court of Appeal

An Order allowing the appeal and setting aside the ruling of the lower court and upholding a no case submission in favour of the appellant.

5. Persons directly affected by the Appeal
6. Ufuoma Paul Eto – accused/appellant

c/o His Solicitors,

T.J. Onomigbo Okpoko & Co.,

Adane Chambers.

7 Deco Road Warri

2. The State – Respondent

c/o Ministry of Justice

Asaba

Delta State.

3. Samson Edoreh – 2nd respodent

Akpoghene nedeno – 3rd respondent

c/oTheir Solicitor

K.C. Uwubiti Esq.

163, Warri/Sapele Road,

Warri.

Dated this 19th day of April, 2005.

On the 19th April 2007 when this appeal came up for hearing, Counsel for the Respondent was absent from court but it was confirmed from the Court’s record that on the preceding date of adjournment which was the 19th February 2007, the Ministry of Justice was represented by Counsel. K.O. Uwhubiti counsel for the Appellant therefore urged this Court to regard the Respondent’s brief as having been argued by virtue of Order 6 Rule 9 (5) of the Court of Appeal Rules 2002, the Respondents having filed their brief deemed filed on the 19th February 2007. He adopted and relied on the Appellant’s Brief of Argument dated 25th September 2005 and filed on the 14th October 2005 and urged this court to allow the appeal and set aside the Ruling of the trial Judge. From the grounds of appeal the Appellants formulated the following issues for the determination of this court –

(a) Whether on the evidence on record the learned trial Judge came to the right conclusion in overruling the submission of no case to answer made on behalf of the appellants and calling upon the appellants to enter upon their defence on charges of conspiracy to murder and murder.

(b) Whether the learned trial Judge was right in overruling the submission that applicants have no case to answer on a charge of conspiracy and murder without considering adequately the issues raised by the appellants.

The Respondent on the other hand while wholly adopting issue (a) formulated by the Appellants as its issue 1, modified its issue slightly from the Appellants issue (b) to read as follows – Whether the learned trial Judge adequately considered the issues raised by the appellants in the no case submission.

The sole issue in the determination of this appeal would appear to me to be whether from the evidence on record the learned trial Judge came to the right conclusion in overruling the no case submission made by the Appellants at the conclusion of the evidence adduced by the Respondent. To that extent issue No. 1 as agreed by both parties would appear to be sufficient, and issue (b) or (2) would appear to me to be a proliferation of issues a practice which has been frowned at by the courts. See ANAEZE v. ANYASO (1993) 5 NWLR (PART 291) 1; BURAIMOH V. BAMGBOSE (1998) 3 NWLR (PART 109) 352; UTIH V. ONOYIVWE (1991) 1 NWLR (PART 166) 166; OYEKAN V. AKINRINWA (1996) 7 NWLR (PART 459) 128; YUSUF V. AKINDIPE (2000) 8 NWLR (PART 669) 376. The Appellants have submitted in their Brief of argument that the salient points to take note of in the determination of this appeal are-

(a) By virtue of section 36(5) of the Constitution Federal Republic of Nigeria 1999, the accused persons (Appellants) are presumed innocent until the contrary is proved and

(b) That in a charge of conspiracy to murder and murder as in the present case, the prosecution (Respondent) must prove the essential elements of the offences which are –

(i) That the appellants agreed to conspire with the 1st accused to carry out an unlawful purpose – to kill Julius Oforufuo

(ii) That Julius Oforofuo is dead and that the cause of death is due to unnatural causes

(iii) That the known cause of death is attributable to the voluntary or willed acts of the appellants.

The Appellant submitted that inability of the Respondent to establish or prove any of these essential elements or ingredients of the offences and murder is fatal to the prosecution (Respondents) case.

The Appellant went on to submit that the principles governing a submission that an accused person has no case to answer on a charge or charges preferred against him and as settled by a long line of authorities are as follows-

1. Whether there has been no evidence to prove an essential element in the alleged offence.
2. When the evidence adduced by the prosecution has been discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Reliance was placed for this legal proposition on the following cases –

AJIBOYE & ANOR V. THE STATE (1995) 32 LRCN 464 at 473: IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 All NLR 61; AJIDEGBA & ORS V. IGP 3 FSC 5; OKORO V. THE STATE (1988) 5 NWLR (PART 94) 285; ADEYEMI V. THE STATE (1991) 4 LRCN 1363; DABOB V. THE STATE (1977) 5 SC 197 at 210.

Appellant went further to say that there was no legally admissible evidence of conspiracy to murder and murder of the deceased Julius Oforofuo by the prosecution to warrant the appellants being called upon to defend themselves on charges of conspiracy to murder and murder and no essential elements of those offences having been proved against them the appellants should be discharged.

The following cases were cited in support –

ONAGORUWA V. THE STATE (1988) 1 ACLR 535; C.O.P. V. ONYELOR (2003) 1 FWLR (PART 189) 722; C.O.P V. OMISORE (2004) 2 FWLR (PART 196) 894. These findings the Appellants submitted were said to be premised on the following –

(1) PW1 – Humphrey Oforofuo, PW2 Oghale Oforofuo and PW3 Mary Oforofuo – father, sister and mother of the deceased who each claimed to have witnessed the incident while testifying that the deceased was taken to the hospital did not accompany the deceased to the hospital and none of them therefore saw him die at the hospital. PW I did not testify that he was present or identified the body to PW4 Dr Okereke Vincent Nwabueze who performed the post mortem examination. The result is that the evidence of these witnesses did not go to establish either the death or cause of death of the deceased.

(2) PW4 Dr. Okereke Vincent Nwabueze who performed the post mortem on the deceased contradicted himself when after stating that the post mortem he carried out was with respect to a young man of 24 years, later stated that same was with respect to a middle aged man of 30 years and so the death of the deceased was not proved by the doctor just as it was not proved by the PW1, PW2 and PW3.

(3) The evidence of PW5 Sgt John Chukwuma and PW6 Benedict Nwokolo (ASP) showed on the one hand that the Appellants set up alibi and secondly that there was no agreement amongst the appellants and the 1st accused to carry out an unlawful purpose i.e. the murder of the deceased.

(4) There was contradiction in the evidence of PW4 and PW5 as to where PW4 performed the autopsy. While PW 4 Dr. Okereke Vincent Nwabueze said he performed the post mortem at Stonehill Hospital Oleh PW5 said the post mortem was performed at Aluta mortuary also in Oleh. The prosecution therefore failed to prove ‘death or cause of death of Julius Oforofuo.

Appellants went on to state that on the evidence produced so far in the case, PW4 and PW5 are the only witnesses whose evidence could possibly have established the death of the deceased, the cause of death, and perhaps link the appellants with the deceased’s death but that on the face of it the With respect to whether Julius Oforofuo is actually dead, the Respondent in its brief of argument has made numerous references to the Record of appeal which I have carefully cross checked and found to be correct that the said Julius Oforofuo is dead. These pieces of evidence are not only from PW1, PW2 and PW3 – the father sister and mother of Julius and also PW5 but also from the Appellants themselves and are to be found at page 4 lines 10-16; page 7 lines 9-10; page 10 lines 10-14; page 18 lines 13- 22; page 43 page 45 lines 9-12 all of the records of appeal. They have been reproduced in the Respondent’s brief. I do not consider it necessary to reproduce them here. Suffice it to say that they all go to show without a shadow of doubt the death of Julius Oforofuo, and the Appellants cannot approbate and reprobate on this.

On the identity of the body on which the post mortem was performed the Respondent has contended that PW4 clearly identified the corpse on which he performed the post mortem as that of Julius Oforofuo, the said corpse having been identified to PW4 by PW1 Humphrey Oforofuo the father of Julius. Reference was made in this regard to page 14 lines 15-19 of the record of appeal which is reproduced hereunder: “In the course of my duty I came across the body of one Julius Oforofuo. On the 13/6/2000, a coroner form was sent to me to perform an autopsy on Julius Oforofuo. He was identified to me by his father Humphrey Oforofuo PW 1”. At page 41 of the Record of appeal and headed Exhibit “A” – “Report of Medical practitioner” is the admitted Medical Report issued by PW4 concerning the autopsy conducted on the deceased. Recorded as item 5 as to the name of the deceased if known is the name Julius Oforofuo. Item 6 as to whom identified the deceased is recorded the name Humphrey Oforofuo with the inscription “father” in brackets. These would appear to me to be enough evidence that not only is Julius Oforofuo dead, but that the post portem carried out by PW4 was with respect to his body, same having been identified by PW1 Humphrey Oforofuo the father of Julius.

Replying on the alleged contradictions in the evidence of PW4 and PW5 the Respondent has submitted that they are mere discrepancies that do not go to the root of the charge against the Appellants. Respondent contended that a discrepancy- as to age of the person upon whom the post mortem was performed which oscillated between 24 and 30 years in the evidence of PW4 does not go to the root of the charge against the Appellants and is irrelevant to the fact that Julius Oforofuo is dead and what caused his death is cardiac failure secondary to multiple stab wounds and excessive bleeding. So also the discrepancy in the evidence of PW4 and PW5 about the venue where the autopsy on the deceased took place in so far as both PW4 and PW5 are in agreement in their respective pieces of evidence that the autopsy was conducted on the corpse of Julius Oforofuo. I am in full agreement with the reasoning of the Respondent in its Brief of Argument that not all contradictions are material. For a contradiction to be material it must go to the root of the charge. PW1 and PW4 in their respective pieces of evidence put together and supported by exhibit “A” – the Medical report produced by PW4 on Julius Oforofuo are to the effect that the post mortem was performed on Julius Oforofuo who was identified to PW4 who performed the autopsy by PW1 the father of Julius. PW5, a police officer had testified that Julius Oforofuo died at stonehill hospital Oleh. Would it then matter where the autopsy was performed or whether the deceased was a young man of 24 years or a middle aged man of 30 years. The contradictions in the evidence of the prosecution witnesses are neither substantial nor fundamental to the main issues in controversy sufficient to create some doubt that the appellants are entitled to benefit from.

As to the cause of the death of the deceased, PW1-PW5 in their respective pieces of evidence linked the Appellants one way or the other as borne out by the record of appeal. The evidence of PW2 Oghale Oforofuo the sister of the deceased Julius Oforofuo is particularly forceful. She said she witnessed the stabbing of the deceased by the 1st accused person but all three accused person held daggers. The deceased was in a pool of his blood.

When she shouted for help the appellant and the 1st accused fled the scene.

She also said the deceased had said, “You are holding me for him to kill”. PW4 the Medical Doctor had stated in his report that “the cause of death is cardiac failure; the instrument that might have been used is a sharp instrument with a pointed end. The wound based on the position could not have been self inflicted”. With what has been said, could the trial court have been wrong in overruling the no case submission of the Appellants? There is the need for us to remind ourselves of what a trial court should be on the look out for in deciding whether a no case submission has been successfully made or not. As earlier noted for a submission of no case to succeed –

(1) there must be no evidence to prove an essential element in the alleged offence.

(2) the evidence adduced by the prosecution must have been so discredited as a result of cross examination or must be so manifestly unreliable that no reasonable tribunal or court could safely convict on it.

These requirements have earlier been death with and I do not intend to go round in a circle. The Appellants have not discredited or punctuated by their cross examination, the evidence in proof of the essential elements of the offence in this case and I think and so hold that the learned trial Judge was perfectly right in overruling the no case submission of the Appellants and calling upon the Appellants to defend themselves. The Appeal therefore lacks merit and is dismissed.

The Ruling of Umukoro, J in Suit No. HCO/8C/2001 delivered on the 8th March 2005 is hereby affirmed.

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Other Citations: (2007)LCN/2488(CA)