Ugo Ovuoba V. The State (2016)
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RITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the Judgment of Hon. Justice P. O. Elechi delivered on the 28th of June 2013, sitting at the High Court of Ebonyi State of Nigeria holden at Abakaliki in charge No. HAB/6C/2012. The learned trial Judge found the Appellant and the others guilty as charged and convicted them to seven years imprisonment.
FACTS LEADING TO THE APPEAL
?The Appellant UGO OVUOBA (m) was arraigned before the High Court of Ebonyi State holden at Abakaliki, with five others for the offence of Arson, contrary to Section 443 (a) of the Criminal Code Law, Cap 33. Vol. 1. Laws of Ebonyi State of Nigeria 2009.
They were alleged to have willfully and unlawfully set fire on the dwelling house of one Michael Onyibe on the 23rd of May 2011.
At the trial, the prosecution called four witnesses including P. C. Ojukwu PW4, who was the Investigating Police Officer.
The Prosecution also tendered five (5) Exhibits A, B, C, D, E; Id I-e were also tendered.
The Appellant called fourteen (14) witnesses, and tendered four Exhibits – B, B, J and H
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respectively.
Simply put, the case of the prosecutor is that on the 23rd of May 2012, the Appellant with others conspired among themselves ad set fire on the dwelling house of Michael Onyibe.
That the Appellant raised the defence of ALIBI – that he was not in Mgbo Agbaja village on the day of the alleged crime.
At the end of the trial, the lower Court convicted the Appellant as charged and sentenced him to a term of seven (7) years imprisonment on the 28th of June 2013. – Pages 136-153 of the Record of Appeal.
The Appellant is dissatisfied with the Judgment of the lower Court and is desirous of appealing it.
Pursuant to the practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 9th of September 2013 with two (2) Grounds of Appeal viz –
GROUND ONE “The learned trial Judge erred in Law when he dismissed the case of Alibi and put forward by the accused person in his defence in the charge of Arson made against the accused person.”
GROUND TWO “The learned trial Judge erred in law when he held without proof that the accused was the person that set fire on the properties
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notwithstanding the age long case of village autonomy that both parties accepted it exist, which metamorphose to this malicious allegation.”
Pages 154-157 of the Record of Appeal.
The Appellant filed his brief of argument on the 10th of October 2014, but same was deemed filed on the 10th of October 2014. It is settled by Sir Ejike Ezenwa.
The Respondent’s brief was filed on the 8th of January 2016 but deemed filed on the 28th January 2016. It is settled by Rt. Hon. Augustine N. Nwankwo, Attorney-General, Ebonyi State.
The Appellant filed a Reply brief on the 22nd of March 2016, but same was deemed filed on the 9th of May 2016.
On the 9th of May 2016, the parties adopted their respective briefs of argument.
Two issues for determination were distilled by the Appellant, for consideration from the Grounds of Appeal. They are ?
1) “WHETHER THE DEFENCE OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL COURT.
2) WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILLFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL ONYIBE BEYOND REASONABLE
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DOUBT.”
On their part, the Respondent distilled two issues for determination which are –
a) “WHETHER THE DEFENCE OF ALIBI WAS ADEQUATELY CONSIDERED IN VIEW OF THE EVIDENCE BEFORE THE TRIAL COURT.
b) WHETHER THE PROSECUTION DISCHARGED ITS BURDEN OF PROVING THAT THE APPELLANT WILFULLY AND UNLAWFULLY SET FIRE TO THE DWELLING HOUSE OF MICHAEL ONYBE BEYOND REASONABLE DOUBT.”
Without doubt, the issue for determination formulated by the Respondent is an adoption of that formulated by the Appellant. I shall consider this appeal however, based on the issues for determination proffered by the Appellants.
ISSUE NO. 1
It is the appellants’ contention that in his statement to the Police of 23/5/2011 – Exhibit “D”, he stated that he was not in the village of the complainant on the day of the incident.
He submits that failure of the prosecution to investigate the alibi put forth by the Appellant is fatal to the prosecution case. That the Appellant even raised the defence in Court. The Appellant had maintained that he was at his house at Obegu Mgbo, Izzi LGA in his family, who were afflicted with APPOLLO. That DW2
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corroborated this fact.
ISSUE NO. 2
He submits that the prosecution had the burden of proving the following ingredients inherent in the offence of Arson which are –
1) “That fire was set to a building or structure.
2) That the fire was set by the accused person.
3) That the accused person set the fire unlawfully.
4) That the fire was set willfully.”
He submits that the Prosecution has been unable to establish those ingredients in support of the charge of Arson against the Appellant.
That the prosecution has failed to prove its case beyond reasonable doubt as required by law.
RESOLUTION OF ISSUES
ISSUE NO. 1
The statement of the Appellant is reflected at Page 34 of the Record of Appeal –
He stated inter alia –
“Throughout yesterday the 23/05/2011, I was in my compound because my entire house hold is having Apollo epidemic ?”
Noteworthy is that there is an alteration in the date as stated on the said statement. One does not know if it is 22 or 23.
But the statement was thumb printed and dated 23/05/2011.
?I am of the view that this makes the issue of ALIBI
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beclouded. The offence was allegedly committed on the 23rd of May 2011.
This lacunae alone concerning the date, eliminates the issue of ALIBI and I so hold. This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2
The Appellant testified as DW9 – Pages 126-127 of the Record of Appeal. Hear his testimony ?
“On the 23/5/2011, after being given autonomy as a community, the people of Ndiebor imposed a levy on us which we refused to pay. As a result, they invaded our village and started destroying properties. From then, I left the village for Ikeyi to take refuge in Inyimagu. As I was walking, cutting down trees, he was then arrested by Nwodu Chukwume and Ugo Nwogbaga chairman of the vigilante in my farm at Obegu Mgbo?”
He was not cross-examined as to his earlier statement to the Police which he made on the 23rd of May 2011.
He had however said in his statement to the police that ?
“It was this morning the 23/5/2011 when one Ugo Ogbaga Ofie was and others numbering about ten all from Mgbo Agbaja Izzi came to my house and told me that I should come with them to
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our market square, when I went with them, they started beating me after tying my hands and legs with rope?”
PW1 is the Complainant – Michael Onyibe. He testified that the accused persons came to his house at 12:15 am. At Page 85 of the Record of Appeal, he testified thus on the 24th of July 2012 viz ?
“I said so to the police in my statement. I said in my statement that I saw Moses Nkwegu used the cloth outside to soak it in fuel and John Ota lit it.”
He continued –
“This incident happened in the night when people were asleep.”
PW2 – Paul Nwegede testified on the 28th of September 2012. – Pages 87-89 of the Record of Appeal. He is an eyewitness.
Answering questions put to him under cross-examination, he did say –
“I could not tell the hour of the day that I was attached but I know that I was woken up from sleep as a result of the incident, but it was about 9:10pm.”
He only mentioned one Moses Nkwegu who held a gun.
That as a result of the bonfire, he recognized them. But who are the them?
That ALL the accused persons pointed a gun at him.
?PW4, Ojukwu Ottu testified that
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he took statement from the Appellant.
From the totality of the evidence as it stands, can it be said that the Prosecution has proved its case beyond reasonable doubt?
There is nothing to establish that fire was set to a building or structure, IdI – E are picture of rubber burnt, part of a motorcycle, a window blind and sack made ceiling.
There is nothing to show that the Investigating Police Officer PW4 visited the scene of crime.
I find that the prosecution has been unable to establish that a “STRUCTURE” within the ambit and interpretation of the law was burnt, as IDI – E say nothing tangible. No exhibit was tendered to suggest that there was any semblance of ARSON.
The Court is left to speculate. A decision of Court based on suspicion and speculation is faulty – ARUFBONE v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 597; A.C.B. PLC v. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) 504.
Now, was the fire set by the Appellant? PW1 and PW2 did not say that the Appellant set PW1’s house on fire.
These is no evidence linking the Appellant to the crime of ARSON.
?While PW1 set the time of the commission of crime at
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12:15am (a little after midnight) of the 23rd of May 2011, PW2 said it was 9:10pm.
There is no doubt that the incident took place at night. Apart from the contradictions in the evidence of PW1 and PW2 as to the time of the commission of the crime, one wonders how PW2 was able to identify the Appellant. But he only mentioned one Moses Nkwegu who held a gun.
The prosecution had left a huge lacuna in its trail and that lacuna cannot be filled by this Honourable Court.
It is for the prosecution to provide a nexus between the Appellant and the commission of the crime, and this it has failed to do.
Nothing connects the Appellant to the commission of the crime, either by way of conspiracy, or the main act, and I so hold.
I cannot phantom how the lower Court arrived at its conclusion that the “evidence of the prosecution point irresistibly to accused persons who committed the offence charged”.
To say, as the lower Court did that ?
“All the ingredients of the offence of arson under S. 443 (a) of the Criminal Code have been proved against the accused persons?”, is a conclusion arrived at in gross
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error, and misconception of the facts glaringly staring the Court in its face!
Decidedly, where a trial Court fails in its duty to properly consider the evidence before it, and the failure led to draw wrongful conclusion from the accepted evidence, or from no evidence at all, the appellate Court is perfectly justified in evaluating and considering the whole decision in order to arrive at a just decision – WOLUCHEM v. GUDI (1981) 5 SC 291; A-G OYO STATE v. FAIRLAKES HOTELS LTD NO. 2 (1989) 5 NWLR (Pt 121) AT 755; GUINNESS NIG. LTD v. UDEANI (2000) 14 NWLR (Pt. 687) AT 387.
I am of the view that the prosecution failed to prove the charge against the Appellant beyond reasonable doubt and he is therefore entitled to be discharged and acquitted.
The Appeal succeeds. The conviction and sentence of the Appellant UGO OVUOBA (m) on the 28th of June 2013 is hereby quashed while the Judgment of Hon. Justice P. O. Elechi delivered on the 28th of June 2013 at the High Court Abakaliki in Charge No. HAB/6C/2013 whereby the Appellant, UGO OVUOBA (m) was convicted and sentenced to seven years imprisonment is hereby set aside. The Appellant UGO OVUOBA
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(m) is hereby discharged and acquitted.
Other Citations: (2016)LCN/8793(CA)
