Simeon Nebeife Obidike V. The State (2014)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division (the court below) delivered on 18th July, 2001. Therein, the court below dismissed the appeal of the appellant and affirmed the judgment of the trial High Court of Anambra State, Otuocha per Ezeani, J. delivered on 1st August, 1996 wherein he was convicted and sentenced to death along with five others for the murder of one Maduneke Enweonye. I note it here that the appellant was the 4th accused person at the trial court.
As extant in the record, the facts as briefly stated by the prosecution are that there was a dispute over the ownership of Ikpi fish pond in Anaku between one Sunday who claimed exclusive ownership and the rest of Umuereagu Isiokwe kindred which claimed communal ownership. The dispute was resolved in favour of the community which later leased the fish pond to one Chief Philip Ezeoba of Nando for five years. The said chief employed the 1st accused person as a guard of the fish pond through his farm manager called Vincent Okongwu (P.W.2). Subsequently, the lessee of the pond, through his manager, removed the 1st accused as the pond guard and replaced him with Maduneke Enweonye – the deceased. The 1st accused who was not happy with the development, went in company of one Onwualu Ikenna to the farm Manager to complain about his replacement with the deceased.
There was a general meeting of Isiokwe community on 21st May, 1994 at the Town Hall during the community’s ‘Uta Amanwuli’ festival where the issue of Ikpi fish pond was raised. The 1st accused at the meeting openly threatened to kill the deceased and do away with his corpse if he continued to go to the pond and that he should be so warned. The 1st accused was challenged for making such a statement and was advised to withdraw same. Rather than do so, he stormed out of the meeting and was followed by the other accused persons (the appellant herein inclusive) as well as some others at large. The 1st accused and his group then re-convened in his house near the Town Hall to hold a secret meeting.
The said Manager, Vincent Okongwu testified that on 9th June, 1994, he went to Ikpi fish pond to provide food for the deceased but did not find him there. He searched frantically for the deceased but did not find him. He reported the missing of the deceased to the villagers. Search parties thoroughly searched for the deceased to no avail. The deceased could not be located. A report was made to the police. On investigation, the accused persons were arrested and statements were taken from them and witnesses. Although the body of the deceased was not eventually found, the police had cause to arraign the accused persons in court for murder of the deceased. At the trial court, P.W.5 gave a graphic picture of how the killing of the deceased was carried out. The learned trial judge believed the evidence of the P.W.5, Godfrey Emengini and convicted all the six accused persons but acquitted and discharged the 7th accused person who he gave the benefit of his doubt. The appeal to the court below, was dismissed. The appellant who like some others before him, felt unhappy with the stance of the court below has also appealed to this court.
On 16th January, 2014 when the appeal was heard, Mr. J.O.N. Ikeyi, learned counsel for the appellant, adopted and relied on the appellant’s brief which was filed on 16th November, 2011 but deemed duly filed on 20th June, 2012. He urged that the appeal be allowed. Mr. P. A. Afuba, Hon. Attorney-General of Anambra State, duly adopted and relied on the respondent’s brief of argument filed on 30th November, 2012. He urged the court to dismiss the appeal and affirm the decision of the court below which affirmed the judgment of the trial court.
The sole issue couched for the determination of the appeal on behalf of the appellant reads as follows:-
“Whether the prosecution proved its case beyond reasonable doubt, upon the community reading of sections 131, 132, 135, 136 and 140 of the Evidence Act, Laws of the Federation of Nigeria, 2011.”
On behalf of the respondent, the two issues decoded from the appellant’s five (5) grounds of appeal for a proper determination of the appeal, read as follows:-
“(i) Whether the court below was right in affirming the conviction of the appellant based on the evidence of the single eye witness; the P.W.5.
(ii) Whether the appellant can raise the issue of alibi without leave when the issue was abandoned at the trial court and was neither raised nor considered at the court below.”
Learned counsel for the appellant submitted with utmost force that the prosecution failed to prove its case beyond reasonable doubt. He opined that the burden on the prosecution is to prove the guilt of the appellant in respect of the offence charged, beyond reasonable doubt. He submitted that the essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction for murder are as follows:-
(a) That the deceased is dead.
(b) That the death of the deceased was as a result of the act of the accused.
(c) That the act of the accused was intentional, with knowledge that death or grievous bodily harm was its probable consequence. See: Edwin Ogba v. The State (1992) 2 NWLR (Pt.222) 164 at 198; Akinfe v. The State (1988) S NWLR (Pt.85), Onah v. The State (1985) 3 NWLR (Pt.12) 236 at 537; Oteki v. Attorney-General; Bendel State (1986) 2 NWLR (Pt.24) 648.
Learned counsel contended that it is not borne out by the printed record of appeal that Maduneke Enweonye was proved by any credible evidence to have died. He opined that the court below concluded its introduction of the facts of the prosecution’s case that – ‘the culmination of the disputation and protest is that on 8/6/94 Maduneke Enweonye disappeared and he has never been seen again by those who knew him’.
In respect of this crucial point, the learned Attorney-General of Anambra State submitted that the prosecution proved by credible evidence and beyond reasonable doubt not only the fact of the death of the deceased but also that he was killed by the appellant along with his collaborators.
As extant on page 172 of the record, the learned trial judge, in a very meticulous fashion, found as follows:-
“In the instant case, the eye witness account given by P.W.5 was not shaken by cross-examination. The accused persons were seen with the body of the deceased gushing out blood at night and the deceased eventually died and the body was not found. The court is bound to hold that the guilt of the six accused persons had been proved beyond reasonable doubt.”
It is now settled that an appellate court should not ordinarily substitute its own views of fact for those of the trial court. An appellate court will not interfere with findings of fact by a trial court except where wrongly applied to the circumstance of the case or the conclusion reached was perverse. Certainly, ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses; more especially, where the issue turns on the credibility of witnesses. See: Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (pt.2) 66; Nneji v. Chukwu (1996) 10 NWLR (Pt.378) 265; Ogbechie v. Onochie (1998) 1 NWLR (pt. 470) 370; Bamigboye v. University of Ilorin Anr. (1999) 6 SC (Pt.11) 72; Olanrewaju v. Governor of Oyo State & Ors. (1992) 11-12 SCNJ 92 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90.
The court below rightly accepted the clear finding of the trial judge on the guilt of the appellant for the murder of the deceased. At page 304 of the record, the court below, on this point, found as follows:-
“Barring the error about using the traces of blood and foot prints of the appellants as pieces of circumstantial evidence which is unnecessary in the face of the compelling eye-witness account of the gory crime by the P.W.5, the learned trial judge sifted the evidence with meticulous care —
With the gripping impact of the evidence of the prosecution the guilt of the appellants for killing of Maduneke Enweonye becomes inextricably established notwithstanding the native ruse of disposing of the corpse that did not reckon with the indomitable capacity of the law to penetrate the inner recesses of the stratagem of the black-guard among human species.”
The above finding has root in the clear and unchallenged evidence of P.W.5 at pages 95-96 of the record of appeal. It is apt to reproduce same hereunder as follows:-
“Oguejofor Ilodigwe said they would bury him by the side of Ikpi. Francis Obidike told him that if they bury Maduneke by the side of Ikpi the corpse will be easily located. Francis Obidike asked me what I was waiting for. He said I should go since I had taken the oath for them. I started going home slowly. I heard Francis Obidike tell the others that they should take the corpse to Anambra River. Onwughalu Ikenna told Francis Obidike that the decision was good but that unless they tie the corpse to something heavy it will float on the river.”
It is glaring that there are two concurrent findings of the two courts below which link the appellant herein and his co-horts with the murder of the deceased. The court below saw no reason to disturb the finding of fact made by the trial court as it relates to the testimony of P.W.5. The court below, per Olagunju, JCA (of blessed memory) found as follows:-
“The question of the conviction of the appellants being based on mere suspicion suffers from the guilt of the appellants being seen from the myopic lenses of counsel for the appellants which cannot see through the force of evidence of P.W.5, as an eye witness account.”
The argument of the appellant on this point turns on the credibility of the eye-witness to the crime-P.W.5 upon which the appellant’s conviction was based. The court below was perfectly in order when it refused to substitute the views of the trial court with any other view. It should be reiterated once more that it is not the function of an appeal court to substitute its own view for those of the trial court where the issue turns on the credibility of witnesses. See: Nwosu v. Board of Customs and Excise (1985) 5 NWLR (Pt.93) 225; Egonu v. Egonu (1978) 11-12 SC 111.It goes without saying at this point that there are concurrent findings of fact by the two lower courts on the credibility of the evidence of P.W.5 on the basis of which the conviction of the appellant was founded. It is now well settled that in such a situation, as herein, this court will not ordinarily disturb such concurrent findings unless same is shown to be perverse or there is an error in procedure or substantive law which has occasioned miscarriage of justice. I shall not interfere as same has not been demonstrated herein. See: Kale v. Coker (1982) 12 SC 252; Oduntan v. Atibu (2000) 7 SC (Pt.2) 106; Anaeze v. Anyaso (1993) 5 NWLR (291) 1, Echi & Ors. v. Nnamani & Ors. (2000) SC 62 at 70; Nwokoro v. Onuma (1999) 9 SC 59; Chinwendu v. Mbamali & Anr. (1950) 3-4 SC 31 at 71; Lokoyi v. Olojo (1988) S SC 61 and Coker v. Oguntola & Ors. (1985) 6 SC 132.
The appellant attempted to make an issue that the distress call of the deceased could not have been heard by P.W.5 from where he was fishing if it had taken 45 minutes for P.W.5 to reach the location from where the distress call emanated. It was submitted on behalf of the respondent that the argument of the appellant’s counsel in this respect is misconceived and does not reflect the evidence of P.W.5.
The respondent’s stance on this point is quite real. It is apt to reproduce the evidence of p.W.5 at page 94 of record which goes as follows:-
“When I reached at Iyinsawa which is at Ikpi fishing pond, as I was fishing I heard a loud noise saying ‘Anaku doo Isiokwe doo’. I listened carefully and the noise was coming from Ikpi. I stopped fishing and listened attentively. It was the voice of Maduneke Enweonye. I decided to go to Ikpi to find out the reason for the shout. As I was going the ground was muddy and difficult to walk upon.”
From the above reproduced testimony of the P.W.5, it is clear that the estimated time of 45 minutes it took P.W.5 to reach the location of the distress call, in the circumstance, was quite reasonable. The miniature complaint was only designed to raise dust; as it were. It did not take into consideration the purport of the bleak facts in the evidence of P.W.5. It failed to hit the desired target. Let me say it that address by counsel should be tailored to be in line with the real evidence on record and not otherwise. This is more so; as addresses are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. There is no need to make submission against the flow of evidence in a bid to procure underserved attention. See: Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787 at 792; Obodo v. Olumo & Anr. (1987) 3 NWLR (Pt.66) 111 at 123.
It was also contended on behalf of the appellant that there were two contradictory sets of evidence with respect to the scene of crime. The respondent felt otherwise.
It is clear to me that the evidence of P.W.5 fixed the scene of crime to be at Ikpi where the deceased’s hut was located. The question of two contradictory sets of evidence with respect to the scene of crime, as argued by the appellant, is not borne out of the evidence on record. It exists in the appellant’s feigned imagination. I could not follow the rationale for same with adequate precision. It was also designed to raise unnecessary dust; as well.
I now move to the issue of threat to deceased’s life by the first accused-Francis Obidike-the arrow-head of the cruel episode. On behalf of the appellant, it was canvassed that all the witnesses called by the prosecution were those people on the deceased’s faction in the dispute over the ownership of Ikpi fish pond and that no witness was called from the 1st accused’s faction. Appellant further complained that the police investigation was one-sided as no witness from the appellant’s side of the dispute was interrogated by the police in the course of investigation. It is clear to me that the defence is not in any way prevented from calling any witness he desired in disproof of the threat on the life of the deceased. The appellant chose not to call any other witness on this point. The appellant has no right to dictate to the prosecution the witnesses to call or not to call. The principle of law was well restated in Ime David Idiok v. The State (2005) 13 NWLR (Pt.1104) 225.
Based on the evidence of P.W.1, P.W.3 and P.W.4 the trial court believed and found that the 1st accused -Francis Obidike threatened to kill the deceased on 21-05-1994 if he failed to stop going to Ikpi fishing pond. The court below affirmed the finding of the trial court. The complaint of the appellant in this respect rests on a shifting sand. It has no basis in law. See: the cases of Ohunyon v. The State (1996) 3 NWLR (Pt.436); 264, Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, and Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660, all cited by the learned counsel to the respondent. They are quite in point and relevant. It should be stated here that evidence of threat to kill the deceased shortly before the incident added credence to the belief in the evidence of P.W.5 by the trial court. Such belief by the trial court cannot be impugned by the appellant; with clear conscience, in the prevailing circumstance of this matter.
The appellant also made an issue over the testimony of the P.W.5 who made his statement to the police on 30th August, 1994, nearly three months after the deceased passed on. The first complaint was that the lateness of the statement robbed the appellant of the opportunity to react to the points contained therein.
The Hon. Attorney-General for the State maintained that nothing can be further from the truth. He asserted that as it can be seen on pages 71 and 128 of the record of appeal, the prosecution did not open its case until 23/3/95 nearly seven months after the statement was made and the defence did not open until 2/5/96, over 20 months after the making of the statement of P.W.5.
I feel that the respondent is on the right track. It is obvious that the defence had all the lee-way it needed to react to the points raised in the statement of P.W.5 the only eye-witness to the murder of the deceased by the appellant and his co-horts. This complaint is, no doubt, a ruse. The appellant further complained that p.W.5 failed to mention the names of the accused persons to the police at the earliest opportunity. Learned counsel for the appellant cited the cases of Udeh v. The State (2001) 2 ACLR 356 at 365; Bozin v. The State (1985) 2 WLR (Pt.8) 465; Ebre v. The state (2001) 12 NWLR (Pt.728) 617; Abudu v. The State (1985) 1 NWLR (Pt.1) 55 and Sunday Ani v. The State (2009) All FWLR (Pt.482) 1044.
Learned Attorney-General for the State maintained that the submission of the appellant is totally misconceived and that the cases cited do not support the appellant’s contention. He asserted that from the concurrent findings of fact in this appeal, the P.W.5’s first and earliest opportunity to mention the name of the appellant was after the bond occasioned by the ‘Iyi Ani’ oath forced on him was broken or released. It was then that p.W.5 narrated all that he witnessed at the locus criminis to his uncle and thereafter to police on 30/8/94.
The submissions of the Attorney-General can well be put on their mettle. The two courts below found correctly that the delay on the part of the P.W.5 in making a report to police was satisfactorily explained. Same remains faultless. The court below affirmed the belief and acceptance by the trial court in the truth of the story related by P.W. 5 regarding the administration of the oath on him. I tend to agree with the two lower courts in accepting the explanation of P.W.5 on the issue of oath and its effects. After all, the appellant and his co-horts are native people with their ancient and,/or mundane beliefs. The court may not countenance same but such local native people like the appellant should be availed due latitude for their self-imposed native beliefs. To this extent, the requirement of section 131 of the Evidence Act was satisfied by the prosecution. The authorities cited by the appellant’s counsel are not directly in point.
In a bid to cast a damaging slur on the evidence of P.W.5, the appellant claimed that it was the P.W.5 who used a gong to announce the disappearance of the deceased and his death to the community.
It was submitted on behalf of the respondent that there was no such finding by the trial court as borne out from the record. The learned Attorney-General for the State referred to pages 166-167 of the record of appeal wherein the learned trial judge found and held as follows:-
“Judging by his statement to the police, P.W.5 knew who killed Maduneke. He did not tell anyone what he knew because of the oath he swore to. The accused persons however testified that P.W.5 joined in the search and was in fact the person who beat the gong summoning everyone to the village square. However, none of the accused persons stated that P.W.5 was the person who beat the gong in their statement to the police. P.W.5 and P.W.6 had testified that they did not go for the search of Maduneke. I believe them.”
With the above position of the learned trial judge, the complaint of the appellant that p.W.5 was the person who beat gong to summon people to the village square falls flat. It is a farce which does not deserve any further attention. In this respect, the effort made to disparage the evidence of P.W.5 has hit a brick wall.
On behalf of the appellant, it was further submitted that the prosecution failed to prove customary oath taking practice called ‘Iyi Ani’ which according to counsel, the appellant denied its existence in his statement to the police. The learned Attorney-General on behalf of the respondent asserted that the submission of counsel is a clear distortion of facts. He referred to the appellant’s statement at pages 218-220 of the record. He maintained that there is nothing contained in the said statement denying ‘Iyi Ani’ customary oath practice. He also observed that there is no such denial evidence in the testimony of the appellant in court.
Again, I strongly feel that the respondent is on a firm stand in the position taken by it. In a bid to score a cheap point, a party should not resort to distortion of the facts. From a clear reading of the appellant’s statement to the police at pages 218-220 of the record and his evidence before the court at pages 139-140 of the record on 23/5/96, there is no shed of denial of ‘Iyi Ani’ customary oath practice by the appellant.
It should be stressed here again that what is relevant is whether P.W.5 genuinely believed in the potency and efficacy of the oath administered on him by the accused persons and not whether witnesses should be called to establish the existence of the customary oath practice. P.W.5 was only a witness. He was not on trial. The trial judge believed him and so be it.
It was further urged on behalf of the appellant that the prosecution should have called the native doctor who neutralized the oath administered on P.W.5. The respondent maintained that there was no such duty placed on it.
It must be stated in clear terms that it is not the business of the defence to dictate to the prosecution the witness to call or not to call. If the appellant desired to call the native doctor as his witness to challenge the veracity of the evidence of P.W.5; nothing prevented him but he failed to so do. This court so found in the sister appeal of Nkebisi & Anr. v. The State (2010) 5 NWLR (pt.1188) 472 at 485.
It was further canvassed on behalf of the appellant that the evidence of P.W.5 who is shown to be from the family of the deceased should be heated with caution, being in the class of evidence of persons interested and which ought to require corroboration.
Learned Attorney-General for the State opined that the submission of the appellant’s counsel has no basis in law. He referred to Nkebisi & Anr. v. The State (supra) at page 484.
It must be stressed here that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. Evidence of a relation can be accepted if cogent enough to rule out element of falsehood and bias. What a court must consider as an abiding factor is the truthfulness of the witness touching on his integrity, veracity and knowledge of the matter. See: Arehia & Anr. v. The State (1982) 4 SC 78 at 92; Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521.
It should be further depicted here that evidence of a single witness, as herein, if believed by the court can sustain a charge even in a criminal matter relating to murder. The trial court believed the evidence of P.W.5 as to how the appellant and his co-horts killed the deceased and disposed of his body. The court below affirmed same. I feel they were in order. See Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538; Efiong v. The State (1998) 8 NWLR (Pt.562) 362; Ali v. The State (1988) 1 NWLR (Pt.68) 1; Princewill v. The State (1994) 20 LRCN 303, 318; (1994) 6 NWLR (Pt.353) 703.The appellant also felt that the discharge and acquittal of the 7th accused person on the strength of his successful plea of alibi impacts negatively on the evidence of P.W.5 which fixed the appellant at the scene of crime.
Hon. Attorney-General on behalf of the State again referred to the sister appeal of Nkebisi & Anr. v. The State (supra) at pages 484-485 where same issue was considered by this court and resolved against the appellants therein. He maintained that same applies with equal force to the appellant in this appeal. This court therein pronounced per Ogebe, JSC as follows:-
“My quick reply to this is that the appellants and the 7th accused at the court of first instance did not have a common base for their defence and so the discharge of one of them cannot lead to the discharge of all of them. From the facts of this case the 7th accused gave a defence of alibi which the trial court gave him the benefit of. The present appellants did not claim that they were together with the 7th accused in the location of his alibi. It followed, therefore, that his discharge could not affect the conviction of the appellant.
I agree that the above finding in the sister appeal applies with equal force to the present appellant herein. Furthermore, at the trial court, the appellant’s counsel gave no address in respect of issue of alibi. The court did not consider same. The issue touching on alibi was not raised at the court below. It is being surreptitiously raised before this court, to no avail. This is because there is no ground of appeal against the decision of the court below on issue of alibi. Same is being raised in this court for the first time. Leave of this court was neither sought nor obtained. It is incompetent and should be, and is hereby discountenanced. See: Jatau Ahmed (2003) 1 SC (Pt.11) 118; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116.
Learned counsel for the appellant tried his utmost best to obliterate the evidence of P.W.5, the lone eye-witness; to no avail. He strenuously submitted that the charge against the appellant was not proved beyond reasonable doubt. It must be noted that same is not proof to the hilt. See: Miller v. Minister of Pension (1947) 2 ALL ER 372. In Princewill v. The State (1994) 20 LRCN 303 at 318, this court, per ,
Iguh, JSC held –
“That where the court is satisfied that prosecution has proved beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused to the exclusion of all other possibilities, the court is bound to convict.”
The two courts below so found that the charge against the appellant was proved beyond reasonable doubt. I agree and pitch my tent with them. This appeal lacks merit and it is hereby dismissed. I affirm the decision of the court below which affirmed the judgment of the trial court.
SC.395/2002(2)
