Augustine Onuchukwu & 2 Ors. v. The State

The three appellants were convicted together with two others by Olike J of Anambra State High Court of the offence of murder, contrary to Section 319 (1) of the Criminal Code. Originally, 8 accused persons were arraigned before the trial High Court for the same offence. Two died in prison during the trial, one was discharged and acquitted by the trial court and two others, Ireka Edimgbo and Onodu Okeke succeeded in their appeal before the Court of Appeal and were both discharged and acquitted. The three appellants were not successful at the Court of Appeal. Their convictions and sentences were affirmed. Being dissatisfied with that decision they have now come before this court appealing against the conviction and sentence passed on each of them.

The fact which gave rise to this case is that there was a land dispute between the 1st appellant and his father, the 4th accused, who died in prison during the trial, on the one part, and the 9th witness for the prosecution, Valentine Obiekwe, on the other part. The dispute led to a serious fight during which the 4th accused was injured. The 1st appellant, on hearing about the fight between his late father and PW9, reported to the police. The police arrested PW9 and charged him to a Magistrate’s Court in Ihiala of the offence of assault. PW9 was remanded in

P.2

prison custody by the order of the magistrate. The deceased, Samuel Ikejiobi, stood surety for PW9 and he was released on bail.

It was alleged that the act of the deceased angered the 1st appellant who issued a warning to the deceased to withdraw his suretyship for PW9 so that the court would revoke his bail and keep him in custody pending trial. The deceased refused to withdraw his suretyship for PW9 and this angered both the 1st appellant and 4th accused. On the 27th February, 1985, at about midnight, the deceased, Samuel Ikejiobi, was shot dead in his house and the house was set on fire. During the inferno the wife of Samuel Ikejiobi and his two children were burnt to death. On receiving a report the police went into action and after the completing of the investigation 8 accused persons were charged before the High Court of the murder of Samuel Ikejiobi. The 8 accused were: Augustine Onuchukwu 1st appellant: Livinus Okorie, 2nd appellant: Ezekiel Ireka, 3rd appellant: Ezeanochie Onuchukwu, the father of the 1st appellant; Odogwu Obiora, Ireka Edimgbo, Onodu Okeke and Chukunyekwuom  Okeke.

As I have mentioned above, 4th Accused, Ezeanochie Onuchukwu and the 5th Accused, Odogwu Obiora, died in prison during trial. Mr. Chukunyekwuom Okeke, the 8th Accused, was discharged and acquitted by the High Court. The trial High Court convicted the 1st, 2nd, 3rd, 6th and 7th Accused persons and sentenced each of them to death.

On appeal to the Court of Appeal, the 6th and 7th accused who were 4th and 5th appellants before the lower court were successful. They were discharged and

P.3

acquitted. The appeals of the 1st, 2nd and 3rd appellants were dismissed.

On further appeal to this court the three appellant argued their respective appeals separately. The appellants, through their respective counsel, filed several grounds of appeal for the prosecution of the appeals filed by the three appellants. The arguments advanced in those grounds are similar and the issues identified on those grounds are interrelated. I do not intend to reproduce each set of those issues since the points the appellants have grouse against the judgments of the lower courts are virtually the same. I will therefore consider their respective appeals together. After going through all the grounds of appeal and the issues raised on them by both the appellants’ and the respondent’s counsel, I find the following six questions to be sufficient for the determination of the appeals filed by the three appellants:

1. Whether the trial court as well as the Court of Appeal evaluated the evidence tendered before it at all/property.
2. Were there material conflicts in the statements and evidence of prosecution witnesses which rendered their various pieces of evidence unreliable and can the conviction of the appellants based on such unreliable evidence be sustained and upheld.
3. Whether the defence of alibi raised by the appellants in this case could not avail them given the circumstances of this case.
4. Whether the court below was right in upholding the conviction of the appellants based on remote, conflicting, doubtful and unreliable circumstantial evidence of the prosecution witnesses where there was no direct

P.4

evidence whatsoever that the death of the deceased resulted from the overt act or omission of the appellants.

5. Whether the finding of conspiracy/common intention as well as aiding and abetting by the Court of Appeal against the appellants was not latently speculative and based on conjecture and suspicion.
6. Whether the charge of murder against the appellants had been proved beyond reasonable doubt.

I intend to consider the arguments of the appellants’ respective counsel in respect of the points raised in issues 1 and 2 together. The complaint of the appellants in the Court of Appeal is that the trial court did not evaluate the evidence led by both the prosecution and the defence properly. Instead, the Court of Appeal proceeded in its judgment to make its own findings of fact on the evidence adduced before the trial court.

It is the submission of the learned counsel for the 3rd appellant that there were contradictions between the evidence of PW 1, PW2, PW3 and PW5. Counsel argued that the contradictions were pointed out to the lower court but it did not regard them material. To illustrate such contradictions each learned counsel referred to the testimonies of PW 1, PW2 and PW5 who said that they saw the 1st appellant in company of 2nd and 3rd appellants soon after the operation in which the deceased was shot dead and his house set on fire. The witnesses told the trial court that they were all holding guns and jerrycans heading towards the house of the 1st appellant when the house of the deceased was on fire and other people were struggling to quench the fire.

On this issue, the arguments submitted by counsel of

P.5

each of the appellants, although couched in a different style and manner, pointed out that the prosecution 8 witnesses have all contradicted themselves in the evidence they gave before the trial court. For example, learned counsel for the 1st appellant explained the inconsistencies between the evidence of PW1 and PW5. PW1, in his testimony stated thus:

“When the house of Samuel was on fire some of the accused persons assisted in fighting the fire to prevent it from spreading to other houses nearby”.

PW5 however, in his testimony, on this issue said:

“1 did not see the persons I named while the house of Samuel was burning nor did they join in stopping the fire from spreading to other houses. I did not see them.”

Learned counsel for the 1st appellant also referred to two other statements made by PW 1 which although believed to be true by the trial High Court were contradictory. The trial High Court believed that both PW1 and PW5 were near the house of the deceased at the time of the murder and they saw four men near the premises. Two of them were carrying jerrycans in their hands. In his statement to the police made after two months of the incident PW1 said:

“As I was hiding within the banana stand, I saw four men among the four men were Augustine Onuchukwu (1st Appellant ) and Livinus Okorie ‘M’ and two persons who carried Jerrycan each in their hands.

But in the evidence which PWI gave in court during trial he gave another version wherein he said:

“Of the four men I saw, I could only recognise Augustine the 1st accused and 2nd accused Livinus Okorie I could

P.6

not recognise the other two people. The 1st and 2nd accused were carrying jerrycans.

The other two had nothing”.

It is quite clear that the two statements reproduced above are not the same. The learned counsel for the respondent gave detailed replies to the arguments advanced by appellants’ counsel in respect of the decision of the Court of Appeal to uphold the conviction of each of the appellants based on remote conflicting doubtful and unreliable circumstantial evidence from the prosecution witnesses. The learned counsel submitted that the death of the deceased resulted from overt act of the 1st appellant and his criminal colleagues and that the evidence of eye witnesses PW1 and PW2 is overwhelming.

It is plain from the judgment of the trial High Court which the Court of Appeal upheld that the conviction of the appellants was based mainly on the testimonies of PW1 and PW2, a girl of 9 years. The conclusion of the trial court in respect of the evidence of those two witnesses is as follows:

“This witness (PW2) was (nine) 9 years old at the time of the incident when she made her statement to the police Exhibit B. She did not mention the names of the 1st, 2nd and 3rd accused persons as being at the scene as she made her escape. I carefully considered her evidence and satisfied that she is patently honest but confused in recollection. The trauma (sic) of the incident will live with her for a very long time if not throughout life. I believe her evidence. But even if I disbelieve her on issue of whether she saw the 1st and 2nd accused persons at the scene it

P.7

is in evidence that as the perpetrators of the crime stepped out of the burning house into the village road, wicked, triumphant and satisfied of their savagery it was unknown to them that PWI was hiding among plantain/banana stems as the full light of the moon fell upon them. Of the four that passed by he recognised with certainty and honesty the 1st and 2nd accused persons. Learned counsel made strenuous efforts to discredit the witness and urged the court to treat the evidence as concocted. I took care to watch the demeanour of this witness in the witness box while giving evidence and I formed the impression that he was a witness of truth. I accept his evidence in its entirety. See Okosi v The State (1989) 1 NWLR (Pt. 100) 642. I believe him”.

The learned trial Judge cannot be right to form the impression that both PW I and PW2 are witnesses of truth in view of the clear contradictions in the evidence each of them adduced before the trial court. It is settled law that where a trial Judge fails to advert his mind to the evidence on record, the Court of Appeal is entitled to examine the evidence and make its own assessment provided that such exercise does not call for making decision on the witness’ credibility – Okonfua  and Anor. v. The State (1981) NSCC 23, (1981) 6-7 SC J. I find it pertinent to re-evaluate the evidence of these key witnesses in view of the submission of each of the learned counsel for the appellants on the issue of conflicts in the evidence they respectively adduced for the prosecution.

PW2. Mary Rose Nwadialor made two statements. The statement she made to the police was recorded seven days after the incident and was admitted in evidence

P.8

during trial as Exhihit B. In the statement she Stated thus:

“On that night as we were sleeping I heard the noise of a gun and after they entered into the house and ask the Samuel’s wife to give  them money. The woman told them that she has no money. They then fired something and we began to feel something on our eyes. They then held me and Samuel’s wife on the hand. Later I escaped from them. It was one man who came in with something on his face. Samuel’s wife (sic) was begging them to live for God’s name but they refused. I was not there when the fire is burning the house.”

Learned counsel for the 2nd appellant in the 2nd appellant’s brief, which he prepared, submitted that it was significant to note that in the statement. Exhibit B, PW.2 made no attempt to mention the names of or describe any of the people she said had entered the house. She did not say that she would be able to identify any one. But in contrast with the above statement when PW.2 came to give evidence in court, two years later she now said she could identify the person who came in. She narrated to the trial court how the intruder came into the house thus:

“As we were sleeping in the night of 27th February 1985, we heard a gun shot and we woke up. By we, I mean Samuel’s wife. Chijioke the last son of Samuel Oguguo the daughter of Samuel and Eunice a co-maid. Somebody kicked the door and entered and flashed a torch light and was looking for Samuel’s wife. He caught her. I went to wake Chijioke and the man said if I touched him (Chijioke) he would kill me. As I tried to escape he caught and held me and Samuel’s wife. I can recognise the person who held me and Samuel’s wife. I can identify the person.

P.9

(Witness moves to the door and points at the second accused Livinus Okorie)

When he held me and Samuel’s wife he asked Samuel’s wife for money but Samuel’s wife pleaded with him to leave her in the name of God as she had no money. At that stage I ran out of the house and saw Samuel lying outside. Apart from the torch light the second accused (the man) had a small gun”.

PW.2 went further in her testimony and said that when she was running outside the house she saw 1st and 3rd appellants. It is relevant to observe here that in her statement to the police PW2 was talking of more than one person coming into the house of the deceased and asking for money. She said, “They entered the house ……… they asked for money…….they then held me”. However, when she came to give evidence she became wiser and said one man entered the house and she  continued referring to one man. The man she was talking about was the 2nd appellant and she identified him in the court during the trial. She did not talk of more than one person coming into the house. However, she said that when she came out running towards her father’s house she saw the 1st and 3rd appellants on the road near Martin Igboeli’s house. Another development in her evidence is that she could now identify the person whom she said earlier had come into the house covering his face. The two versions in the evidence of PW2 have made her testimony unreliable.

If the learned trial Judge had evaluated the evidence adduced by the prosecution witnesses properly he would have found the evidence of PW 1 unreliable as well. But learned trial Judge found that he was a witness of truth

P.10

and believed him. The Court of Appeal affirmed such a finding. This is a witness who was said to be an eye witness but did not report what he saw soon after the incident until after about two months when the police invited him and recorded his statement. I have recorded earlier in this judgment the inconsistent statements PW I made about the people he saw carrying jerry cans. He further added another confusion to his testimony where he said:

“I told the police that as I was hidding (sic) the 1st and 2nd accused whom I recognised passed by armed with guns. I left my hiding place when they passed.’

From the above PW I has now recognised the 1st and 2nd appellants and he said now, they were both carrying guns.

PW 1 and PW2 are not the only witnesses whose testimonies are in conflict with one another. The evidence of PW3 and PW 11 could not be relied upon to convict any of the accused of the offence charged. In his testimony PW3 narrated to the trial court what PW1 and two others reported to him about what happened in the night of the incident, thus:

“I made a statement to the police which was in English. It was written by me. I told the police that Edwin Igboeli, Cosmas Oroegwu and Ndianekwute Ifeanyi were the people sent from  Umuarom Umudero with a message. They reported to me what  happened in late Samuel’s house, As a result of what they told me I walked across the road and reported to the police. They met me in my house on the Onitsha-Owerri road opposite the police station. I received the information between 3-5 a.m. on the morning of 28/2/85.

P.11

I reported to the police at the counter.”

It is clear from the extract of the evidence of PW3, reproduced above, that PW I had reported to him what he observed with his own eyes in the night or the incident.

I mentioned earlier that PW I had told the court that he identified 1st and 2nd appellants going into the house or the deceased. However, when PW II, the police investigator, gave evidence he told the court that PW3 who was the complainant in the case had reported to the police and stated that an unknown thief or thieves corpses of  Samuel Ikejiobi his wife, Catherine Ikejiobi and his daughter, Uzoma Ikejiobi, were found in the burnt house.

If PW3 had indeed received a report from PW 1, who identified 1st and 2nd appellants moving into the house of Samuel Ikejiobi before the outbreak of the fire he (PW3) would tell the police the information he received from PW 1 and he would reveal that the 1st and 2nd appellants had taken part in the criminal act. Which evidence is to be believed when the key witnesses have contradicted themselves and each has made a statement inconsistent with the evidence he has given before the trial court? Where there are such contradictions and inconsistencies in the evidence before a Criminal Court, such as to cast reasonable doubt upon the guilt of the accused person. such accused person should be given the benefit of the doubt and not be convicted on the basis of such unreliable evidence – Onubogu and Anor. V. The State (1974) 9 S.C. 1, Akosile v. The State (1972) 5 S.C. 332.

It is evidently clear that the identity of those who killed

P.12

Samuel Ikejiobi and put his house on fire had not been known by the people of Umuorum Urnudara Village where the deceased lived. Originally. the villagers suspected that the murder and arson were caused by unknown thieves. Hence the statement of PW2, the little girl, to the police that the intruders carne and asked Samuel’s wife to give them money. PW3 who received the report of the incident from PWI and two others went and told the police that an unknown thief or thieves murdered Samuel Ikejiobi and set his house on fire killing his wife and daughter. It was after about two months when the investigation gathered momentum that witnesses came and concocted stories that they identified the appellants and others carrying guns, jerrycan and matchets going towards the house of the deceased. In the process of fabricating stories they contradicted themselves. It is my view that their evidence is unreliable.

The issue of alibi is another defence which the lawyers for the appellants submitted that had not been properly considered by the court below. I will deal with this issue, taking the defence put up by each appellant separately.

Learned counsel for the 1st appellant submitted, in 1st appellant’s brief, that the 1st appellant made a statement to the police. exhibit G, that on the night or the incident he slept at Okija in his house. He mentioned that his Landlord, Ignatius Orama, one Clestine Ibeauchi and a lady teacher, Miss Tine Ohiakaeze, would testify to that. The wife of the 1st appellant gave evidence for his defence and confirmed that the 1st appellant slept with her in his house on the night of the incident. PW.7 seemed to have confirmed the defence of alibi put up by

P.13

the 1st appellant where he told the trial court that he saw the 1st appellant at Okija in the evening of the incident.

The police did not interview any of the witnesses mentioned by the 1st appellant who could confirm or deny that the 1st appellant slept in his house at Okija on the night of the incident. A worthless evidence given by the prosecution on the issue of alibi set up by the 1st appellant is where the police investigating officer gave a hearsay evidence and both the trial court and the lower court agreed with him. In that testimony PW.11 said.

“The outcome of my investigation into the alibi is that I disbelieved him and charged him to court because Celestine Ibeauchi who is supposed to be an independent witness said that he saw the 1st accused at about 9 p.m. that night and the offence was committed at about 2 a.m.”.

For whatever it is worth, once an accused puts up a defence of alibi it is imperative that the defence must be investigated. If an accused raises a defence of alibi the onus is on him to prove where he was at the time of the incident and he has o to call evidence to support his defence of alibi. See Odili v. The State (1977) 4 Sc 1. Once a defence of alibi is put up it is for the police to investigate it properly because failure to do so could raise reasonable doubt in the mind of the tribunal and lead to quashing the conviction – Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538.

PW.11 gave a feeble explanation on the alibi wherein he said that he investigated the defence of alibi put up by the 1st appellant when he visited his house at Okija and failed to trace the landlord and the lady teacher. The Court of

P.14

Appeal referred to the evidence of PW.1 and PW.2 who said they saw the 1st appellant at the house of deceased when the house was attacked and agreed with the trial court that the defence of alibi has collapsed – See Okosun v. Attorney General of BendeI State (1985) 3 NWLR (Pt. 12) 283. Those witnesses (PW.1 and PW.2) have been found in this judgment to have made such contradictory statements that no reasonable tribunal could convict on their evidence. This has left the defence of alibi put up by the 1st appellant intact.

The second appellant’s defence of alibi was not investigated. PW.10, the police investigator, told the trial court that he did not investigate the claim of the 2nd appellant that on the day in question he slept in his house. PW.10 explained:

“At the lime the second accused made statement (2nd appellant’s statement Exhibit F) and claimed he slept in his house at night I could not investigate the claim because the area was deserted following the incident. I could not even see the wife with whom he claimed he slept.”

This second   police investigator, PW.11 also told the trial court that he searched for the wife of the 2nd appellant to find out whether the 2nd appellant left his room during the night or whether she woke him up but all efforts to trace her proved abortive. In short, the defence or alibi put up by the 2nd appellant was not investigated. And as I have round above. since the evidence of the key prosecution witnesses is unreliable the trial court was in error to rely on those testimonies in rejecting the defence of alibi put up by the 2nd appellant.

P.15

The Court of Appeal referred to the issue of alibi argued by the 3rd appellant’s lawyer and observed as follows:

“On the above submission it is clear that PW.11 did not investigate or was unable to investigate the alibi set up in the 3rd appellant’s statement Exh. J.”

The lower court thereafter opined that even though the 3rd appellant’s defence or plea of alibi was not investigated by the police or the prosecution, the evidence of PW.2, PW.4 and PW.5 who were eye witnesses and who saw the 3rd appellant at the scene of the crime had effectively neutralised his plea or defence of alibi. I have since disclosed that the evidence of the key witnesses who identified the 3rd appellant and others is contradictory, inconsistent and unreliable. Failure therefore to investigate the defence of alibi put up by the 3rd appellant has cast reasonable doubt on the reliability of the case for the prosecution. A plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the person at the scene of crime at the material time – Njovens and Ors. v. The State (1973) 5 Sc. 17. In the case in hand there is no evidence reliable to fix the appellants at the scene of the crime.

The three issues i.e. the failure to evaluate the evidence correctly, contradictions and inconsistent evidence which I discussed above and the failure of the prosecution to investigate the defence of alibi put up by the appellants are enough to determine the appeal filed by each of the appellants. I need not consider the remaining issues since the three issues which I appraised above in this judgment have established that the charge framed against the appellants has not been proved beyond reasonable doubt

P.16

taking into consideration the evidence adduced. It is unfortunate that some people have lost their lives in this criminal act. But it is a cardinal principle of justice that conviction could only follow where the charge against an accused person has been proved beyond any reasonable doubt. Throughout the web of criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt. Once there is reasonable doubt created by the evidence given the prisoner is entitled to an acquittal.

In consequence, it is my view that the doubt which manifested itself in the conflicting evidence of the prosecution witnesses must be resolved in favour of the appellants. Accordingly, the appeal filed by each of the three appellants against the judgment of the Court of Appeal in which the lower court affirmed the conviction and sentence passed on each of the appellants is hereby allowed. The conviction and sentence pronounced on each of the three appellants are set aside. They are each accordingly discharged and acquitted.