The State V. Aroemeka Aniakor & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. 

 This is an appeal against the judgment of the Anambra State High Court sitting at Otuocha, delivered by Hon. Justice J. I. Nweze, J., on the 15th day of August, 2012. By virtue of an amended information, the respondents/defendants as the accused persons, were charged in Suit No. OT/19C/2008, with the murder of one Sylvester Mobi and Chioma Anakwe. In proof of the respondents/defendants? guilt, the appellant/prosecution called five (5) witnesses and tendered several exhibits. The respondents/defendants on their own part called two (2) witnesses inclusive of the 6th defendant/respondent herein and also tendered several exhibits in their defence. The learned trial judge after a full blown trial and upon being addressed by learned counsel to both parties, who filed written addresses, found, delivered/entered judgment in favour of the respondents/defendants in the following words;
?From the Court?s observation of the large expanse of land on which the Aro Shrine is situate, which observation is confirmed by counsel on both sides, it is most reasonable to conclude that the

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degree of certainty required to prove the identity of the Defendants as the killers was not attained. I do not believe the prosecution witness number 3 that the accused persons could see them from the road to shoot at them that night. I do not believe any of the prosecution witnesses that they were able to identify the accused persons as they alleged. I do not believe that Sylvester Mobi made any dying declaration.
In the premise I hold that the prosecution has failed to prove that the defendants caused the death of Sylvester Mobi and Chioma Anaekwe. It does not mean that all or any of the Defendants are innocent. It only means that their guilt was not proved as required by law. This charge therefore fails. The accused persons are hereby discharged and acquitted.?
(See pages 253 ? 254 of the record of appeal.)
?
The appellant/prosecution not being satisfied with the said judgment, appealed against the same upon twelve grounds of appeal. The said grounds of appeal without their particulars are reproduced below:
?I ERROR-IN-LAW
The learned trial judge erred in law by rejecting the direct evidence of PW2 but went ahead to

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acquit the defendants despite the fact that he held that:
?I must say that the evidence of PW2 and PW3 are very compelling. They placed each of the accused persons on the scene of crime. They described the weapons each and every one of them was carrying? (At Page 6 lines 3 to 5), and further held that:
?It is true that the evidence of PW2 and PW3 are not inconsistent. The fact that more than 4 years after the alleged crime they could still recite the type of guns allegedly held by the defendants does suggest some form of tutoring.? (At page 8 lines 9 to 12)?
?II MISDIRECTION:-
The learned trial judge erred in law by acquitting and discharging the defendants who were charged with murder despite the fact that circumstantial evidence is overwhelming, strong, cogent, compelling, complete and unequivocal that it points irresistibly to the guilt of the accused persons to the crime of murder. More so, the Lower Court stated at page 4 paragraph 2 lines 14 to 17 of that page of the judgment that:
?It could therefore be said that there is strong circumstantial evidence that the defendants shot the

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deceased. This is more when it is said that the late Sylvester Mobi made a dying declaration to the effect that the defendants have killed me.?
?III ERROR-IN-LAW
The learned trial judge erred in law by describing his visit to the locus in quo as being in compliance with the law, which is in fact, visit to locus in quo which does not comply with the law, which influenced his decision in this case.?
?IV MISDIRECTION
The learned trial judge misdirected himself when he stated that:
?I am not unmindful of the circumstances leading to the arrest of some of the defendants at Awka. It was alleged that after the murder of the deceased all the defendants ran away. The PW2 however testified that the village was deserted by everybody due to the crisis. Why then should the Court presume the guilt of the defendants simply because they ran away from the village. This is not reasonable.?
?V MISDIRECTION
The learned trial judge misdirected himself that if indeed the accused persons shot the deceased persons they should have shot them at the back instead of in front, which direction of shooting, was

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not raised during the trial.?
?VI MISDIRECTION
The learned trial judge misdirected himself when he stated at the last paragraph of page 8 of the judgment that:
?I do not believe any of the prosecution witnesses that they were able to identify the accused persons as they alleged.? This is after the same judge at lines 3 to 6 of page 6 of the judgment stated that:
?I must say that the evidence of PW2 and PW3 are very compelling. They placed each of the accused persons on the scene of the crime. They described the weapons each and every one of them was carrying.?
?VII ERROR IN LAW
The learned trial judge erred in law by formulating issues not raised or canvassed in the case when he stated:
?The PW2 however testified that the village was deserted by everybody due to the crisis.?
Why then should the Court presume the guilt of the defendants simply because they also ran from the village? That is not reasonable.?
?VIII ERROR IN LAW
The learned trial judge erred in law by not deciding on the effect of the accused persons not testifying in the case

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apart from 6th defendant who did not even tell the police that he was in Kutigi in proof of his weak alibi.?
?IX. ERROR IN LAW
The learned trial judge erred in law by not deciding on the alibi put up by the accused persons which were very weak and unsubstantiated.?
?X. MISDIRECTION
The learned trial judge misdirected himself by stating that there were no gun shots at the scene of crime because there were no spent bullets or shells of bullets at the scene thereby believing DW2 who was discredited during cross-examination.?
?XI MISDIRECTION
The learned trial judge misdirected himself about the impact of the offensive weapons and laid emphasis on whether it was a bullet shot or a sharp object which killed the accused, and formed his opinion thereby stating that the cause of death if it was by bullets there would have been point of exits.?
?XII. ERROR IN LAW
The learned trial judge erred in law by holding that ?I do not believe that Sylvester Mobi made a dying declaration.?
?
Henceforth in this judgment, the appellant/prosecution would be referred to as the

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appellant, while the respondents/defendants would be referred to as the respondents.

In compliance with the rules of this Court, the learned counsel to both parties filed their respective briefs of argument. The appellant?s brief of argument was prepared by Nnamdi Ibegbu, Esq., SAN. The said appellant?s brief of argument was filed on the 21st day of January, 2013. In determination of this appeal the learned appellant?s counsel formulated ten (10) issues. The issues though prolix are reproduced below:
?1. Did the Lower Court, after accepting the direct evidence of PW2 and PW3 discharged and acquitted the accused persons on the ground that they could not have remembered what happened, more than four years earlier which, he said ?does suggest some form of tutoring”? (Formulated from ground one).
2. Was the Lower Court right by discharging and acquitting the defendants, despite the fact that circumstantial evidence is so overwhelming, strong, cogent, compelling, complete and unequivocal that it points irresistibly to the guilt of the defendants? (Formulated from ground two).
3. Was the Lower Court?s

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visit to the locus in quo on the day of judgment in compliance with the law? (Formulated from ground three).
4. Did the Lower Court come to right decision to presume the innocence of the accused persons when he concluded that the accused persons who were arrested at Awka by the police, were there because PW2 testified that the village was deserted by everybody due to the crisis in the village, which was not an issue formulated by the parties? (Formulated from ground four).
5. Was the Lower Court right to have decided that if indeed the accused persons shot the deceased persons, they should have shot them at the back instead of in front, which direction of shooting, was not raised at the trial? (Formulated from ground five).
6. Was the Lower Court right, by stating that: ?I must say that the evidence of PW2 and PW3 are very compelling. They placed each of the accused persons on the scene of crime. They described the weapons each and every one of them was carrying; then turned around to decide that: ?I do not believe any prosecution witness that they were able to identify the accused persons as alleged”? (Formulated from ground

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six).
7. Whether the Lower Court erred in law by not deciding on the effect of the defendants not testifying in the case, apart from the 6th accused person who did not even tell the police that he was in Kutigi, and did not take into consideration that the alibi of the other accused persons who did not testify were very weak and unsubstantiated? (Formulated from ground seven).
8. Did the Lower Court misdirected himself by stating that there were no gun shots at the scene of crime because there were no spent bullets or shells of bullets at the scene thereby believing DW2 whose evidence was discredited during cross-examination? (sic). (Formulated from ground eight and nine)
9. Did the Lower Court misdirect himself about the impact of the offensive weapons when he laid emphasis on whether it was a bullet shot or a sharp object which killed the deceased, thereby formulating an opinion that if it was by a bullet, there would have been point of exit? (sic). (Formulated from ground ten)
10. Was the Lower Court right by stating that he did not believe that Sylvester Mobi made a dying declaration? (Formulated from ground eleven).?

?The

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respondents? brief of argument on the otherhand was prepared by Emeka Agbapuonwu, Esq. It was filed on the 16th day of March, 2015. This was sequel to the grant of leave/order made by this Court on the 10th day of March, 2015 whereby leave was granted to the respondents and which said leave extended time within which the respondents? brief of argument shall be filed. The learned counsel for the respondents on his own part, distilled three (3) issues for the determination of this appeal. The said issues as formulated are also reproduced below:
?1. Whether or not the prosecution prove beyond reasonable doubt the cause of death of the deceased persons to be gunshot wounds and that the defendants inflicted the gunshots wounds (grounds 3, 5, 10 and 11).
2. Whether or not the learned trial judge who heard and saw the demeanour of the prosecution witnesses, and in the circumstances of evidence adduced by both parties, rightly evaluated the evidence of the witnesses as it related to the identity of the defendants and the shooting of guns? (Grounds 1, 2, 4, 6 and 7).
3. Whether or not an accused owes obligation to adduce evidence to

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establish his innocence? (Ground 8 and 9)?

After a careful consideration and examination of all the processes placed before this Court, I am of the firm view point that the central or core issues for determination in this appeal are:
(1) Whether the learned trial judge properly evaluated all the pieces of evidence adduced before him.
(2) Whether the appellant duly established the guilt of the respondents, in accordance with the required standard of proof.

ARGUMENT ON ISSUES: ISSUE 1
Regarding this issue, the learned senior counsel for the appellant contended that the Lower Court acted in error when after it made the finding that the evidence of PW 2 and PW3 were compelling; subsequently went ahead to hold that they could not be believed, based on an alleged tutoring. The learned senior counsel continued and strongly argued that the Lower Court?s finding in respect of the said ?tutoring? was speculative and that it was not empowered to do so. He also maintained that the respondents having not testified at the trial, the evidence of the appellant is supposed to have been deemed unchallenged/uncontroverted and

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facts adduced therein are deemed established. He referred us to the case of Ali & Anor. v. The State (1988) 1 NWLR (Pt. 68) 1 @ 18 – 19. The learned senior counsel for the appellant further contended, that since a party?s evidence ?will not be accepted? if it is contradictory, so also ?if a Judge contradicts himself, his judgment will not be supportable or supported and can never ground a conviction.?
?
The learned senior counsel further argued that the Lower Court was wrong to have concluded, that guns were not fired at the scene of crime, merely on the evidence of DW2 who though claimed to be the Divisional Crime Officer (DCO), but his name did not at any point appear in the police file, as against the compelling evidence of PW2 and PW3 who as eye witnesses stated that several gun shots were fired by the respondents. He also added and stated, that the Lower Court did not properly appreciate the evidence before it, before it arrived at its decision that there was no evidence that the deceased persons were killed by gun shots. According to the learned senior counsel, there was evidence which suggested that the deceased

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persons were indeed killed by gun shots. The learned senior counsel to the appellant also submitted on this issue, that the learned trial judge acted in error when he disbelieved the dying declaration claimed to have been made by Sylvester Mobi, without giving any reason for his said decision. According to the learned senior counsel, ?what the deceased said fit into the legal definition of dying declaration, since it was made in a settled hopeless expectation of immediate death?. He called in aid the case of Chemwoh vs. The State (1986) 2 NWLR (Pt. 22) 331 @ 338.

The learned counsel for the respondents in reply, submitted that the duty of evaluating and ascription of probative value to evidence adduced before a trial Court is the primary function of the trial judge who had the opportunity to see and observe the demeanour of the witnesses. He referred to the cases of Bashaya v. State (1998) NWLR (Pt. 550) 351 and State v. Ajie (2000) 7 SC (Pt. 1) 24 among others. The learned respondents? counsel continued with the submission, that the learned trial judge was required not to consider the evidence of witnesses in isolation but holistically

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with all the surrounding circumstances, before making his findings. Thus, according to the learned counsel, the learned trial judge acted in tandem with established principles, by first considering the evidence of PW2 and PW3; he found it to be compelling in isolation of the surrounding circumstances. However, after critical analysis or examination of all other pieces of evidence on record and the surrounding circumstances, the learned trial judge was of the opinion, that the evidence of the said PW2 and PW3 could not be believed. The learned counsel also contended that the evidence of the said witnesses are laced with material contradictions, thus making the said evidence unreliable to be acted upon, especially on a serious case like murder. According to the learned respondents? counsel, that there was nothing contradictory in the findings of the learned trial judge. The learned respondents? counsel further submitted, that all the findings and observations made by the learned trial judge were duly based on evidence properly adduced before him. Thus, he maintained that the learned senior counsel for the appellant has no justification whatsoever, to

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attack the personality or take the case personal with the learned trial judge, just because he made a finding that the pieces of evidence given by PW2 and PW3 may have been tutored. The learned respondents? counsel thereby urged this Court to hold that the learned trial judge rightly evaluated the pieces of evidence adduced by the witnesses and reached the right conclusions.

It is now well settled that it is the duty of the learned trial judge to admit, evaluate and ascribe probative values to all the pieces of evidence adduced before him and to make primary findings of fact thereon. This duty unless shown not to have been performed according to well laid down principles of law, an appellate Court cannot and will not interfere with such findings. See Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252.

In the instant appeal matter, the case of the appellant was that one of the deceased person, Sylvester Mobi who was the spiritual head of his village, Nneyi Umueri in Anambra State was engaged in a cold war with one Gabriel Anikpe, who was also the former President General Nneyi Community, over a piece of land granted to Orient Petroleum Ltd. The former

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was alleged to have refused to sign the transfer agreement, because the latter has been accused of not being transparent and accountable. The youth vigilante of the community was alleged to have been factionalized over the said dispute. The group which was alleged to be in support of the said Gabriel Anikpe together with the said Gabriel Anikpe?s brother, were alleged to have armed themselves and proceeded to kill the said Sylvester Mobi and Chioma Anakwe, his friend. According to the appellant?s case, one Mr. John Ezeani Ekwemuo (PW2) and Nnamdi Eziagulu (PW3), were alleged to have seen and identified the respondents as the assailants or culprits who perpetrated the dastardly act. The said witnesses claimed to have previously known the said respondents and were able to identify them as being part of the attackers who murdered the deceased persons. The said witnesses are the main or crown witnesses of/for the prosecution, and they claimed that they were able to see and identify the said respondents because of the street light along the route which led to the shrine where the incident occurred. The learned trial judge after giving due consideration

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to the evidence adduced by the said witnesses, was of the view that their testimonies are compelling because of their ability to identify the respondents and the description of what they were wearing as well as the weapons each and every one of them wielded. However, the learned trial judge in due exercise of his function, went further to examine the circumstances within which the said witnesses claimed to have witnessed the events which they narrated with gusto and panache. Howbeit, he must have found them unbelievable. In order to properly ascertain and or make his findings, the learned trial judge ordered that the Court should visit the locus in quo where the event took place. This presumably is to enable the learned trial judge to assimilate and observe the environment and arrive at his decision. Both parties were duly represented by their respective counsel, and the respondents were also in attendance. There was no evidence on record of any testimony or evidence adduced at the locus, as the case may be, by any of the party. The learned counsel for the parties and the Court only made observations of the surrounding environments without more. Howbeit, the

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learned senior counsel Nnamdi Ibegbu, SAN who had hitherto been handling the case was not in Court in person on the day the Court decided to visit the locus in quo. Nevertheless, he was represented by one of the learned counsel in his chambers. The learned counsel for the respondents, Emeka Agbapuonwu, Esq., was equally not in Court. He was equally represented by one of the learned counsel in his chambers. After due consideration of all the pieces of evidence on record, the learned trial judge declined and did not believe the testimonies given by the said PW2 and PW3. The learned senior counsel to the appellant complained bitterly and vehemently against the said visit carried out by the Lower Court to the locus in quo on the basis that he was not personally present as the person who has been directly and personally mandated by the Anambra State Government (Attorney-General?s fiat) to prosecute this case on its behalf, hence according to the learned senior counsel, the proceedings should be held to amount to nullity. He also contended, that the procedure laid down in the relevant provisions of the Evidence Act was not followed, as there was no specific

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record of proceedings with regard to what transpired at the said locus. Thus, he urged this Court to disregard and/or discountenance the finding made by the Lower Court as it pertained to the said visit to the locus in quo.
?
I will begin to address this issue by pointing out that all legal practitioners, who have been called to the Nigerian Bar in accordance with our legal system are deemed capable and competent to handle any case in respect of which they must have been briefed. Thus, I do not subscribe to the contention of the learned senior counsel that the appellant was not represented or well represented; agreeing with him will be tantamount to making mockery of our legal education system. Also, if the said ?junior? counsel could be trusted enough by his employer to represent him with regard to ?listening to the judgment? and he duly appeared on behalf of the said employer or principal, he is deemed to have been authorized to handle all incidental matters which his principal is expected to handle. Again, on the contention by the learned senior counsel for the appellant that the visit to the locus was not conducted in strict

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compliance with the Evidence Act, it is pertinent to state herein, that the visit to the locus in quo is within the discretion of the Lower Court. Thus, where a learned trial judge finds himself in a position in which without supplementing what he has heard with what he can see, he can only accredit or believe one version of the conflicting evidence and discredit or disbelieve the other mechanically or laconically. Thus, there is nothing untoward, if he should bring to the notice of the parties, the need for a visit to the locus and involved them in the conduct of the exercise. See Anyanwu v. Mbara (1992) NWLR (Pt. 242) 386. Again, the Supreme Court, per Iguh, JSC, in the case of Obi v. Mbionwu (2002) 6 SC (Pt. 11) 75, on the purpose and procedure of visit to locus in quo held as follows:
?It has been said that the purpose of an inspection of a locus in quo is not to substitute the eye for the ear but rather to clear any ambiguity that may arise in the evidence or to resolve any conflict in the evidence as to physical facts. In other words, the purpose of an inspection of a locus in quo is primarily for the purpose of enabling the Court to

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understand the questions that are being raised at the trial and to follow the evidence and apply such evidence. Although the ideal practice is for the Court to record the full notes of the inspection in its record book, absence of such record of the inspection of a locus in quo is not fatal to the validity of the judgment. See Maji v. Shafi (1965) N.M.L.R. 33, Briggs v. Briggs (1986) 5 N.W.L.R. (Part 41) 362, Garba v. Akacha (1966) N.M.L.R. 62, Olusanmi v. Oshasona (1992) 6 N.W.L.R. (Part 245) 32 at 38.?
?
I have carefully examined the Lower Court?s record of the said visit as contained in the printed record of appeal placed before us and its judgment and found it to be in substantial compliance with Section 127 (2) (b) of the Evidence Act, 2011 and in the spirit of the principles enunciated by the Supreme Court in the above cited case. In addition, the appellant having not shown any concrete miscarriage of justice occasioned to it by the alleged non compliance of the procedure undertaken by the Lower Court?s visit to the locus of the event, I am of the firm view point that the learned senior counsel?s contention in this regard, is

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somewhat misconceived and accordingly discountenanced.

On the issue of tutored witnesses, the Supreme Court, per Oputa, JSC (of blessed memory) in the case of Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; (1989) LPELR – 1473 (SC) at page 44 stated as follows:
?Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be badge of truth.?
The pronouncement regarding the position of the law made by the apex Court, has equally been followed in plethora of cases. See among others, the case of Uweh v. the State (2012) LPELR ? 19996 (CA), p. 46, wherein my noble Lord, Garba, JCA, placed reliance on the case of Queen v. Adelabu (55 – 56) WRNLR (III), 112 where it was held as follows:
?The absence of any discrepancies in the testimony of witnesses is the usual accompaniment of a concocted story. Imperfection in human reflection is quite normal.?
?
Guided by and

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drawing strength from the above cited and quoted authorities, I hereby also agree with the learned trial judge that the evidence of PW2 and PW3 of describing with uniformity, the details regarding the descriptions of what the respondents wore at the night of the incident and the weapons allegedly carried or wielded by each and every one of them, that is the respondents, after four (4) years of the occurrence of the incidence, without disregarding the surrounding circumstances of the occurrence of the said event, has in a way raised a strong suspicion that their evidence may and or in all likelihood, may have been doctored, rehearsed, tailored/ tutored.
?
Thus, having carefully considered and examined all the pieces of evidence adduced before the Lower Court and vis–vis the judgment of the said Court, I am of the firm stand point that the learned trial judge properly and rightly discharged his primary duty, in evaluating and ascribing probative value to all the pieces of evidence adduced before him before arriving at his decision. In this vein, I see no reason why I should interfere with the said findings of fact made by the learned trial judge. In

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the light of all the above stated, this issue is hereby resolved in favour of the respondents.

Let me make the point, loudly and reiteratedly, that learned counsel, either senior or junior, need not heap, hurl invectives or make discourteous and disparaging remarks on the person of a learned trial judge in the course of a challenge or complaint against a decision rendered by the said learned trial judge. Doing so does not add value to the legal profession. Indeed, it is offensive, untoward and completely self effacing and needlessly uncalled for. Temperate language is appealing, appeasing, cultured and refined. Thus, briefs of argument should contain rational arguments canvassed and not insults, subtle or otherwise targeted at the person of a judge, be it of the lower or appellate Courts. I do not intend to say more than what I have stated herein. A word as it has been said is enough for the wise. Learned gentlemen are presumably and supposedly wise men.

ISSUE 2
In order for the offence of murder to be held to have been successfully proved, the following ingredients are mandatorily required to be conjunctively established beyond reasonable

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doubt:
1. The deceased died;
2. The accused person(s) killed the deceased;
3. The death of the deceased was as a result of the voluntary act or omission of the accused person;
4. The said killing of the deceased was unlawful; and
5. The act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was the consequence.
See the cases of Nnamah v. State (2005) 9 NWLR (Pt. 929) 142; Okoro v. State (2012) 4 NWLR (Pt. 1290) 351; Akpan v. State (1994) 9 NWLR (Pt. 368) 347; Onah v. State (1985) 1 NWLR (Pt. 12) 236.

In the instant case, it is not in dispute that the said deceased persons are dead. What is in dispute is: what caused their death and who was responsible? The learned senior counsel fielded a medical doctor, Dr. Vincent Anikpe as PW 4, who tendered post mortem examination reports in respect of the deceased persons as Exhibits P19, 21 and 21A. The appellant was by these exhibits seeking to establish that the deceased persons? death was as a result of gunshot wounds. However, credibility of the said witness and weight to be attached to the said exhibits were shaken, porous and

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watery, thereby allowing doubts to be focused on their contents, as the said witness who tendered them, admitted that the said reports were largely arrived at, due to information or history passed on to him by some other persons, and not fully as a result of his professional diligence and examination. In fact the said exhibits were nailed to the cross of doubts when the witness admitted as follows:
?COURT: Doctor, but for the history given to you could it have been possible for you to conclude that the wounds were made by some other object than a bullet.?
And he admitted thus
?PW4 Yes my Lord, it is possible?
(See page 213 of the record of appeal)

Previously and while under cross-examination, PW4 answered and stated thus:
?My conclusion was based on the history given to me and my physical examination of the corpse ?
I observed a deep penetrating wound at the right lumber region. That is the abdomen. I did not see any exit point. I only saw one opening or wound on the corpse of Sylvester Mobi.
For Chioma Anaekwe, I observed a deep penetrating wound at the left side of the chest. I

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did not observe any exit point. I saw only one opening or wound on the corpse of Chioma Anaekwe. The wound was on the front part of the chest of Chioma Anaekwe.
(See page 213 of the record of appeal).

It is instructively significant to note that the learned trial judge gave learned counsel for both parties, the opportunity to ask PW4 further questions, based on his response to the question asked by the learned trial judge. In this regard and in his response to one of the questions posed by the learned senior counsel for the appellant, PW4 emphatically said and I quote:
?If I was not told that death was immediate, my conclusion could have been different. The nature of the wound is deep penetrating indicating a cylindrical object as its cause.?
(See page 214 of the record of appeal).

Again, to the question raised by the learned counsel for the respondents, PW4 answered thus:
?I did not open up the bodies but I saw the wound. I saw the penetration but I did not see the extent of the depth of the wound.?
(See page 214 of the record of appeal.)
?
By the responses quoted above and or admissions made by

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PW4, doubts have crept in and became created on the credibility of the witness and sanctity of the said exhibits, which in law are required to be resolved in favour of the respondents. Indeed, they were so rightly resolved by the learned trial judge. Again, I have previously affirmed and stated my position on the finding of the Lower Court that it is unsafe to rely on the pieces of evidence proffered by PW2 and PW3. I do not have any reason to hold otherwise at this point. Thus, it is my firm viewpoint that the cause of death of the deceased persons has not been conclusively proved as required by law in this case. Also, it has not been proved beyond reasonable doubts that the respondents were indeed among the assailants that killed the deceased persons. Thus, I agree with the learned trial judge, that the offence of murder has not been successfully proved against the respondents. This position is further strengthened by the decision in the case of Ekaidem v. The State (2011) LPELR-4076, where this Court held as follows:
?In a charge of murder, one of the essential ingredients which the prosecution must prove is the act or omission of the accused

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person which led to or caused the death of the deceased. Hence, if the prosecution fails or falters to clearly establish the cause of death, a doubt has been raised and the accused person is entitled to a discharge and acquittal. See Lori & Anor. v. The State (supra).?

It is pertinent to observe that in criminal cases unlike its civil counterpart, that the burden of proving the guilt of an accused person(s) is always on the prosecution and invariably the said burden, does not shift, except in few circumstances where the accused person (or defendant) is deemed in law to have the evidential burden of proving some special defences. For example: Insanity, Self – Defence, Mistake and the likes. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Obakpolor v. State (1991) 1 NWLR (Pt. 165) 113; Ejinima v. State (1991) 6 NWLR (Pt. 200) 627. Thus, I do not subscribe to the submission of the learned senior counsel for the appellant, that the failure of the respondents to adduce any evidence has made the appellant?s evidence uncontroverted and/or uncontradicted, and as such it should be deemed admitted. An accused person is not bound to call or adduce

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any evidence in his defence. See Section 36 of the Constitution of Federal Republic of Nigeria, 1999 (as amended). Thus, the accused person?s refusal and/or failure to adduce any evidence in rebuttal of the prosecution?s evidence does not ipso facto raise the presumption that the said prosecution?s evidence is deemed admitted and proved. In the instant case, notwithstanding the respondents? refusal and/or failure to call any witness or adduce any evidence, other than the one proffered by the 6th respondent, the appellant is still required under the law to prove the guilt of the respondents beyond reasonable doubt. The said respondents are also under the law entitled to rest their cases on the appellant?s case/evidence or utilize the evidence so adduced to their benefits. See the cases of Adekunle v. The State (2006) 14 NWLR (Pt. 1000) 717 and Sugh v. The State (1988) 2 NWLR (Pt. 77) 475.
?
In the light of all that has been said above, this issue is also resolved in favour of the respondents. At the end of it all and having resolved the issues formulated for the resolution of this appeal in the manner stated above, this appeal

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is hereby found to be unmeritorious, and it is accordingly dismissed. Consequently, the judgment of the Lower Court delivered on the 15th day of August, 2012 in Charge No. OT/19C/2008 and the orders regarding the discharge and acquittal of the respondents contained therein are thereby affirmed by me.

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Other Citations: (2016)LCN/8939(CA)