Jonathan Igbi & Anor v. The State

The appellants were tried and convicted of the offence of murder contrary to section 319(1) of the Criminal Code. They were sentenced to death. Their appeals to the Court of Appeal failed as their convictions and sentences were confirmed. They have now further appealed to this court.

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The question I ask myself is – What and where is the evidence against the appellants? That evidence can only be found in the testimonies of the two eye witnesses for the prosecution. The witnesses are P. Ws. 2 & 4. P. W. 2 on page 8 of the record said amongst others
“Shortly afterwards the 6th accused person (meaning 1st appellant) carne to where the deceased and I were hiding. There was bright moon light and I was able to recognise him. I saw him inflict machete cut on the deceased. He did not inflict machete cut on me. The other five (5) accused persons and some not here beat the deceased with sticks to death. Thereafter, the accused persons carried the body of the deceased to an unknown destination.”
P. W. 4 also testifying on page 14 of the record had this to say –
” I saw from where I was hiding the 6th and 8th accused persons (meaning 1st and 2nd appellants respectively) inflict machete cuts on the deceased while some others attacked the deceased with sticks. I kept mute in my hiding place and saw what was being done to the deceased.”
It is clear from the above testimonies that P. W. 1 only saw the 1st appellant (6th accused) inflict machete cuts on the deceased while P. W. 4 said he saw both the 1st and 2nd appellants inflict machete cuts on the same deceased. Both P.Ws. 2 & 4 also saw other people beat the deceased with sticks. In fact, according to P.W. 2 “the deceased was beaten with sticks to death.” He was therefore not “macheted” to death. It is also clear that none of the two eye witnesses stated in his evidence on what part of the body of deceased the machete cut/cuts was/were inflicted. I will soon elaborate on this vital omission in the case of the prosecution.

Now, against the testimonies of these eye witnesses (P.Ws. 2 & 4) is the evidence of the Medical Officer (P. W. 5) who performed the post mortem examination on the body of the deceased. His evidence on page 21 of the record reads in part –
“I examined the corpse and found blood stain all over the body. There was a deep cut on the forehead …. The skull bone was scattered with the brain matter visible … There were pillet holes on the right angle of the right eye brow, base of lower eye lid and right cheek. There were three pillet wounds on the jaw. There were multiple abrasion all over the body …. I certify that the cause of death in my opinion was heamorrhage shock due to acute blood loss from multiple injuries. The laceration would have been caused by a sharp instrument like a cutlass. The pillet wounds would have been caused by a gun shot”.

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Under cross-examination by counsel for the 2nd appellant, P.W. 5 said
“Both the gun shot wounds and laceration from cutlass killed the deceased.
Neither P.W. 2 nor P.W 4 who were the only eye witnesses said any of the appellants herein was armed with any gun nor fired any gun shots at the deceased on the fateful day. So that even if P. Ws. 2 & 4 were believed that they saw the appellants inflict machete cuts on the deceased (and they did not name or identify the part of the body cut), it certainly cannot be said or concluded that the deceased died as a result only of the machete cuts. The medical evidence above has shown that both the gun shot wounds and machete cuts jointly killed the deceased. The logical conclusion therefore is that the prosecution has failed to prove that it was the act of the appellants that killed the deceased. And having failed to prove that vital ingredient of the offence of murder, the charge therefore failed. I must also add that there being no evidence from either P.W. 2 or P.W. 4 that the machete cuts were inflicted on the head of the deceased as found by the P.W.5 (the Medical Doctor), coupled with the fact that P.W. 2 & P.W 4 contradicted each other on whether it was only 1st appellant (according to P.W. 2) or both 1st & 2nd appellants (according to P.W. 4) that inflicted machete cuts on the deceased, it will in my view be unsafe to hold any of them responsible for the alleged machete cuts on the deceased. This was not a question of detail. It was a question of substance as to who did or committed the criminal act which led to the death of the deceased. The issue was never resolved. P,W. 2 & 4 probably never witnessed the same incident as they claimed. I must also add that P.W. 2 and P.W. 5 also contradict each other because while P.W. 2 (an eye witness) said the deceased was beaten with sticks to death, P.W. 5 (the doctor) said the deceased died “as a result of gun shot wounds and laceration from cutlass.”

Who is speaking the truth? The benefit of doubt, as always, must be given to the appellants herein. That has always been the law.
On the whole these appeals must succeed and they are hereby allowed. The judgments and orders of the Court of Appeal and of the trial High Court are hereby set aside. The appellants are each discharged and acquitted.

 From the totality of the evidence adduced by the prosecution in this case I do not think the convictions of the appellants for murder can be regarded as safe. There is no doubt that the decease was gruesomely murdered. The real question is by whom. The evidence at first consideration appears capable of implicating the appellants. This has turned

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out, in my opinion, to be deceptive. I shall endeavour to show that the evidence is unreliable. The appellants and six others were arraigned on a two-count charge of conspiracy to murder and the murder of one Abel Emunemu on or about 25 May, 1986 at Otumara village in Orerokpe Judicial Division of the erstwhile Bendel State (but now in Delta State). The counts were brought under section 324 and 319(I) respectively of the Criminal Code (Cap. 48) Vol. II, Laws of the Bendel State of Nigeria, 1976. The first three accused died in prison. The 4th, 5th and 7th were acquitted and discharged. The appellants who were the 6th and 8h accused persons were found not guilty of conspiracy but guilty of murder and each sentenced to death on 31 July, 1991. Their appeals to the Court of Appeal were dismissed on 17 September, 1998.
On further appeal to this court, each of the appellants has set down issues for determination as follows:
The 1st appellant asks:
“(a)     Whether the Court of Appeal was right to uphold the judgment of the trial High Court in the face of the obvious and irreconcilable conflicts and discrepancies in the prosecution witnesses’ evidence?
(b)     Whether the 1st appellant was properly identified as the person who killed the deceased?
(c)     Whether the prosecution proved its case beyond reasonable doubt to warrant the Court of Appeal to uphold the conviction of the 1st appellant by the trial court?”
The 2nd appellant asks in almost similar questions:
“(i)     Whether the evidence of p.w.2 and p.w 4 was sufficiently credible and/or reliable to justify the conviction of the 2nd appellant.
(ii)     Whether the prosecution proved the case against the 2nd appellant beyond reasonable doubt?
(iii)     Whether the learned Justices of the Court of Appeal were right in the circumstances in affirming the conviction of the 2nd appellant” 

The deceased was killed on the night between 24 and 25 May, 1986. On the night of 24 May, 1986 a group of people including the deceased, the p.w. 1, p.w. 2, p.w.3, p.w. 4 and one Josephine who did not testify, attended a burial ceremony in a neighbouring village Otumara from Igun village. Grace Edema (p.w.3) was one of the Chief mourners. The two appellants and others were present at the ceremony. As the ceremony progressed, to use the words p.w.3, “One of Esi’s sons, one Johnbull and the 7th accused person and about 5 others came to me. Esi’s son was holding a pistol while the 7th accused person held a bottle and a machete The three of them i.e Esi’s son, Johnbull

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and the 7th accused person and others ordered me to produce Josephine the deceased’s girl friend from where I was hiding her and that it was I who made it possible for Josephine to become the deceased’s girl friend.”
This witness (p.w 3) then further narrated what happened. She said the people later left but came back from the direction of the old Otumara- Igun road holding a gun, a cutlass and a bottle. She said in addition:
“Those boys who carne to me threatened that they were going to lay ambush for the deceased. As soon as the boys left me I ran into the bush.” She said she stayed in the bush till the following morning because of the threat she received from the said boys.
The 7th accused was Bacol Umukoro who was acquitted and discharged at the trial. It should be noted carefully the role the p. w. 3 alleged the said 7th accused played in the threat to lay ambush for the deceased. It was he who was said to hold a bottle and machete while one Esi’s son held a pistol. However, p.w. 2 (David Emunemu) gave some information both in his statement to the police (exhibit 1) and his evidence in court. In his statement to the police he said 7th accused (to whom he then referred as Beccon – i.e Bacol) told him and others at Otumara village that night that “some people were waiting on the road to fight us. The boy who told us the story is called Beccon. Later Beccon told us that the people have moved to Okpara water side road so we decided to go and pass new road and go home.” I must quickly add here that from the evidence it was along the said new road the deceased was eventually attacked and killed. This was further revealed in p.w.2’s evidence when he said inter alia: While at the burial ceremony the 7th accused person came to the deceased and I and told the deceased to my hearing that some Otumara boys were planning to attack us on our way back home. He left.

Thereafter the 7th  accused person came back to us to inform us that the group of boys who planned to attack us on our way back home had gone to lay in wait on the old Otumara-Igun road. This was about 2.00 a.m. in the early morning of 25/5/86 … Having been alerted by the 7th accused person of the imminent danger, we the deceased, Moses and I decided to return home via the new Otumara-Igun road at about 3.00a.m …. Moses, the deceased and I left the place passing through the new Otumara-Igun road,” It must become a matter of grave concern as to the real role played by the said 7th accused when the evidence of p.w. 2 and p.w 3 are considered together. He was seen by p.w. 3 to have held a bottle and a machete when he went with others to threaten her that they were going to lay ambush for the deceased.

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That was clearly, indicative of being among those who decided to harm the deceased. He approached the deceased, p.w.2 and others to warn them that some people were planning to lay ambush for them, saying that this was going to take place along the old Otumara-Igun road. That was a feigned role, it would appear, of trying to help the p.w.2, the deceased and others flee from danger, telling them along which road the danger lay. Whereas he was indeed leading them to danger. It would seem he succeeded in agitating them not to take that old road but the new road along which in fact the attack had been organised to take place.
The learned trial judge relied on the evidence of p.w. 2 and p.w. 4,.Moses Eseghworo, to convict the appellants. The evidence of those witnesses is therefore very crucial. I will deal first with the evidence of p.w. 2. He said that as he, Moses and the deceased left the place of the burial ceremony and were going along the new Otumara-Igun road, they heard gunshot from behind them and began to run. He then said inter alia:
“While we ran along the road for a while, the deceased and I diverted into the bush on the left hand side of the road and we hid behind some grass known as Awolowo grass. Moses diverted to the bush on the right hand side of the road. Shortly afterwards the 6th accused person came to where the deceased and I were hiding. There was bright moon-light and I was able to rccognise him. I saw him inflict machete cut on the deceased. He did not inflict any machete cut on me.” (Emphasis mine)
At the moment I wish only to draw attention to the portion of this piece of evidence of p. w. 2 which says the deceased and the witness were hiding in the same place and that he saw the 6th accused (now 1st appellant) inflict machete cuts on the deceased.

This is the so-called eye-witness account believed and relied on by the learned trial judge and somehow endorsed by the lower court. I have used the word ‘somehow’ advisedly, and I shall show why later in this judgment. If that evidence stands, the 1st appellant would be rightly convicted on it. But the statement to the police by this witness was admitted as exhibit 1. In that statement which this witness admitted in evidence making, he said that as he, the deceased and Moses were going home that night some people began to pursue them after they heard gun shot. He then said:
“As they were pursuing us I ran to the bush and hid while others ran into another direction. Later I started to hear shout from my brother Abel that he was killed by some people. I was afraid and I hid in the bush.”
The ‘others’ referred to above who ran to another direction were obviously

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Abel (the deceased) and Moses (p.w. 4). The discrepancies between this statement to the police (exh. I) of p.w. 2 made on 25 May, 1986 and his testimony in court given on 20 June, 1988 are very material and crucial. They cannot under any argument be wished away. No explanation of any sort was given for such discrepancies. In his statement to the police, the witness and the deceased were not hiding in the same place. The witness was hiding alone. He was hearing the voice of the deceased that some people were killing him. He did not say he saw them. It is therefore proper to infer that he did not see them. So he did not (or could not) see 1st appellant inflict machete cuts on the deceased. But in his testimony all that evidence was abandoned and a completely new scenario created as already reproduced above. Now he was able to say (or remember) that he and the deceased hid in the same-place and that he saw the 1st appellant inflict machete cuts on the deceased, not that he heard his voice from a distance saying he was being killed. How can this witness be ever accepted as a reliable witness and his evidence in court believed in the circumstances? And that evidence is then used to convict the 1st appellant for murder? That is exactly what the two courts below did. As for the p.w. 4. his statement to the police is not available. In his testimony on these material issues, he said inter alia:
“The people with whom I left Igun for Otumara were Grace (i.e P.W. 3), the deceased, 2nd p.w. Josephine Akpmodaye and 1st p.w. While we were there the 7th accused person came to us because of Josephine. He left. A short while thereafter the 7th accused person came again a 2nd time and told us that the boys who wanted to attack us had insisted on attacking us and that they had moved towards Okpara Water Side ….”
This evidence shows again the role played by the 7th accused whose intention, perhaps, was to give these people a wrong impression as to where the attack was planned to take place. Later the witness went further to say:
“When it was near day break we decided to return to Igun, through the new road. As we were going and at a bend I heard a voice saying stop. This was followed by a gun shot On hearing the gun we took to our heels. We ran for a while along the road before we decided to enter the bush. Three of us myself, the deceased and the 2nd p. w. ran to the right hand side of the road. In the bush I hid myself on the left while the deceased and the 2nd p. w. hid themselves on the right. I was about 18 feet away from the deceased and the 2nd p.w. While we were hiding there in the bush some of the group of boys came to meet us in the bush. I saw from where I was hiding the 6th and 8th accused persons inflict machete cuts on the deceased while some others attacked the deceased with sticks.” 

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The evidence of this witness is different from that of the p.w. 2. The p. w. 2 He said he and the deceased ran into the bush on the left hand side of the road while the p.w 4 ran to the right hand side of the road. He said only the 6th accused (i.e 1st appellant) came to when: he and (he deceased were hiding and there inflicted machete cuts on the deceased, an incident he saw while both of them were hiding in the same place. But p.w. 4 said it was the 6th and 8th accused (i.e 1st and 2nd appellant) who inflicted machete cuts on the deceased. These are material contradictions in the evidence of witnesses relied on to convict for murder. These contradictions have not been explained. I may simply refer to some other strange differences in the evidence of these two witnesses. They may be considered unimportant by a cursory view of them but it is my view that they ought to be treated as part of a wholly unsatisfactory performance of witnesses who cannot really be trusted in the circumstances. The p.w. 2 said he left the bush around 6.00 a.m. for home crying and then went to report to p.w. 1 who immediately followed him to the police station. On his part p.w. 4 said: “I remained in the bush until it was dawn and I went to report to 1st p.w. what had happened to the deceased. I left the bush alone. Thereafter I left for the police station Eku with the 1st p.w to report the incident.”
It must appear a bit curious that p.w. 4 who claimed to be only 18 feet away from p.w. 2 in the bush would leave the bush alone without p.w. 2 with whom he allegedly ran into that bush in fear for their lives. In the same way p.w. 2 said he left the bush for home crying. Each appears to have claimed that only he and p.w. 1 went to report to the police. However, p.w. 1 said: “At about 6.00 a.m. I heard one David Jami (i.e. p.w. 2) cry aloud saying that Abel Emunemu had been killed.

Thereafter I went to the police station Eku to report the incident. One police man followed me and David to Otumara where Abel was killed.” This piece of evidence completely excludes p.w. 4. The question is, who has told the story the way it was? Even as regards where the corpse or the deceased was recovered from, there were differences which should ordinarily not exist from eye witness account. While p.w. 1 and p.w 2 said the corpse was recovered near the river bank or on a side of the river, p.w. 6 Inspector Remigious Okoro (I.P.O) said the corpse was dumped into the river and a search party he organised succeeded in retrieving it, and p.w. 4 also said the corpse was recovered from the river. One begins to wonder whether some of the witnesses gave evidence from eye-witness account or what they overheard in

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respect of some of these matters.
A point was made about alleged gunshot wounds found on the corpse and whether the wounds might have been inflicted after the deceased had been killed so as to rule out the gunshot wounds as forming part of the cause of death of the deceased. I think it will be an argument or a surmise in futility to suggest that the gun shot wounds could have been inflected after the deceased had been killed, or that there was no evidence that they were inflicted on him before he died. The evidence of Dr. Peter Ebiereri (p.w. 5) who performed the autopsy appears to have settled that. He gave evidence about multiple deep lacerations and gunshot wounds found on the deceased’s body. He then said that both the gunshot wounds and lacerations from machete killed the deceased. Although p.w. 2 said there were no gunshot wounds on the deceased. p.w. 5 who examined the corpse and p.w. 6 the IPO who recovered the body from the river testified as to gunshot wounds on the right eye, lid, right cheek, jaw and forehead.
It must not be forgotten that there is evidence from p.w 3 that a certain Esi ‘s son came with a pistol to the burial ceremony. The said Esi’s son was never identified by the police, nor were the 1st and 2nd appellants ever identified as Otumara boys in question. There is also evidence from P.W. 3 that the said 7th accused carried a machete and bottle that night when he offered threat to her.
I have already shown that there were material discrepancies between the statement made to the police by p.w. 2 (exhibit 1) and his evidence in court. There were also material discrepancies between the evidence of p.w 2 and p.w 4 regarded by the two courts below as the star and eye-witnesses, No explanation or any kind was given for such discrepancies. Both counsel for the appellants submitted that with such material contradictions. the evidence of p.w.2 and p.w. 4 became unreliable and should have been discountenanced by the court. I find merit in that submission.

The contradictions in the evidence of p.w 2 and his extra-judicial statement (exhibit 1) and between his evidence and that of p.w 4 in this case are such that it is not possible to escape the consequences of the principles laid down in Onubogu v. The State (1974) 9 NSCC 358. It was held by this court in that case that where a witness has made a statement to the police before trial which is inconsistent with the evidence he gives in court and he gives no cogent reasons for the inconsistency, the court should regard his evidence as unreliable. Similarly, where one witness called by the prosecution contradicts another prosecution witness on a material point the prosecution cannot

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choose whose evidence to accept a between them if there is no foundation for accepting the evidence of one of them in preference to the evidence of the other.
This court later reiterated the principles in Onubogu in the case of Jizurumba v. The State (1976) 10 NSCC 156 but added that where a satisfactory explanation has been given for the inconsistencies in a portion of the evidence as to a particular point the trial court may accept the other portions of the evidence of the witness instead of a total rejection although it should be slow to do so, depending on the circumstances of the case. It is plain to me that a partial acceptance or evidence of a witness owing to inconsistencies may be engaged in any when it is possible to sever the evidence and relate it to specific issues in controversy. Or where the inconsistencies do not detract from the undisputed facts of a case. For example, in the present case it is not in dispute that the deceased was murdered. So no matter the inconsistencies in the evidence of p.w. 2 and p.w.4, that fact to, which they testified that he was murdered remains. But where the evidence of a witness is the basis of the case being made by the prosecution and has by its nature, an entangling quality, then material inconsistencies in the evidence which undermine the reliability of the witness must lead to a total rejection of the evidence. There is nothing in the present case to permit the court to accept and act on any portion of the evidence of p.w.2 and p.w. 4. The evidence as to whether they witnessed the killing or the deceased and by whom formed the basis on the prosecution’s case and was material, and indeed crucial. Since from their performance they were certainly  unreliable witnesses. in my opinion their evidence was totally discredited. It is most unsafe to rely on it to convict the appellants or to uphold their convictions. 

The evidence of p.w. 2 and his statement to the police should have been discountenanced. The evidence or p.w. 4 which purported to speak of the same incident but ill contradiction of the evidence of p.w 2 will lead to a miscarriage of justice if acted upon in the circumstances. There is no other evidence in whatever form to support the charge brought by the prosecution against the appellants. I believe the wrong persons were convicted for the murder of the deceased through what obviously was contrived evidence. The person who appeared to have been the mastermind of the crime was unfortunately lost focus of and was consequently able to go scot-free. The burden to prove the guilt of the appellants in this case beyond reasonable doubt lay squarely on the prosecution; see Onafowokan v. The  State (1987) 3 NWLR (Pt. 61) 538 at 544-545; (1987) 2 NSCC (vol. (8) 110I at 1105 where

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this court observed:
“It is a cardinal principle of our criminal law that in all cases, the burden of proving that any person has been guilty of a crime or wrongful act, subject to certain exceptions (which are not applicable here), is on the prosecution; and if the commission of a crime is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt…..Thus in a Privy Council case of R. v. Basil Ranger Lawrence (1932) 11 N.L.R. 6, Lord Atkin at p. 7 observed that -it has to be remembered that it is an essential principle of our criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt.’ Three years later in Woolmington v. D. P.P. (1935) A.C. 426 at p. 481 Lord Sankey L. C. said that:
‘If at the end of and on the whole case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with malicious intentions, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
See also Okogbue v. Commissioner of Police (1965) NMLR 232 where this Court held that ‘the burden of proving the accused guilty rests throughout on the prosecution,’ In that case, the Court found that the prosecution failed to prove its case beyond reasonable doubt; and the appeal was allowed.”
I need not repeat that where there are material discrepancies in the prosecutions’ case on relevant issues, a reasonable doubt as to the guilt of the accused exists. The case cannot therefore be said to be proved according to the standard required and the accused is entitled to an acquittal. That is the situation in this case, A similar unsatisfactory case presented itself in The Queen v. Abdullahi Isa (1961) 1 All NLR 668 at 671-672; (1961) 2 SCNLR 347 where the Federal Supreme Court said at p. 350 per Ademola CJF:

“We feel bound to say that these contradictions we have brought out in the evidence of the three witnesses relied upon by the learned trial Judge are of vital importance and that if they had received such consideration as they deserved in the hands of the learned trial Judge, we do not think he would have arrived at the conclusions he did Further, the evidence of the 7th witness for the Crown, to our mind, has left one in a state of uncertainty as to the truth of the evidence of the 2nd witness for the Crown. On the whole, the evidence does not show that degree of certainty which should be the criterion in a criminal trial. Rather, there is room for doubt whether it was the appellant who actually stabbed the deceased in this case.”
My view of the present case is that it cannot be said with certainty that the p.w.2 and p.w.4 really witnessed the killing of the deceased going by their

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unreliable evidence. it cannot be accepted on the strength of the evidence as a whole that the appellants committed the crime of murder. This evidence or p.w.2 was commented on by the lower court as per the leading judgment of Achike J.C.A as follows:
“Bearing in mind that the evidence discloses that the incident occurred at the earlier hours of the morning of 25/5/86 (sometime after 3. a.m.), it seems to me that the visibility on that fateful night and the positional location of p.w. 2 and p.w.3 (sic: p. w.4) vis-‘E0-vis the deceased at the time the deceased was allegedly killed are undoubtedly matters of crucial importance in order to give credence or otherwise to the evidence of these two star eye witnesses. P.W.2 in his testimony slated he heard the deceased shouting that he was killed by some people; he also said they used cutlass and that they carried the body to a place he did not see. Not guided by any evidence from p.w. 2 as regards his distance from the deceased, it is certainly doubtful to me that this piece of evidence without more, could have lent much weight to the prosecution’s case. Even p.w.2’s evidence-in-chief did not improve the situation. Although this witness said he saw the 6th accused inflict machete cut on the deceased under the bright moon-light, nevertheless in so far as he failed to show his relative proximity from the deceased that piece of evidence, on proper evaluation, would be worth very little. P.w.2’s further testimony in answer to the cross-examination by counsel to the 2nd appellant, i.e. 8th accused, was equally wholly unhelpful in this regard. In other words, the evidence or p.w. 2 as evaluated above, with or without the mix-up or discrepancy, would have been very little.”

In very simple language, the lower court held that the evidence of p.w. 2 had little or no worth. That was the evidence of one of two witnesses relied on by the learned trial judge. Having thus cavilled at the evidence of p.w. 2, the learned justice of the Court of Appeal made some attempt to rally behind and save the prosecution’s case by relying on the evidence of p.w. 4. But. in my respectful view, he made the matter worst:’ for the prosecution when he observed:
“…..the missing link in the prosecution’ s case as regards the relative positions of the deceased from p.w. 2 and p.w. 4 was supplied by p.w. 4 when he testified that he was about 18 feet away from the deceased and p.w 2. Under the bright moon-light and a distance or 18 feet away, p.w. 4 could have been advantageously placed to see the deceased’s assailants. and with p.w. 2 obviously closer to the deceased, he was even in a better position to observe the killing of  the deceased, his brother, on that ill-fated day. “

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(Emphasis mine)
But the learned Justice had already round that p.w 2’s evidence was not worth much. It would be a contradiction in terms of that finding to now say that p.w 2 was in a better position than p.w. 4 to observe the killing of his brother because of his closer proximity to him, and yet credit as probative by sheer semantics the evidence of p.w 4 who was farther away from the alleged position of both the deceased and p.w.2. I do not think this way of going about; an inadequate evidence call safely lead to a conviction in a serious crime of murder. The learned Justice failed to appreciate that even from the alleged ‘closer proximity’ of the p.w 2 to the scene of crime. p.w.2 said he saw 1st appellant inflict machete wounds on the deceased whereas p.w 4 who was farther away said it was both 1st and 2nd appellant. On what basis then can p. w. 2 be adjudged to be in a ‘better position to observe the killing of the deceased’ when he saw something different from p.w.4 and how can the two be believed on the issue?
By the foregoing observation of the lower court, the uncertainty of the evidence relied on by the prosecution was made manifest and acknowledged, and there was only one safe decision open to it in respect of those appeals before it that decision was to allow the appeals, acquit and discharge each of the appellants. I am of the view that the prosecution did not prove the charge against the appellants. I have no difficulty in allowing the appeal of each of the appellants. I accordingly do so and set aside the conviction of each of the appellants. I enter a verdict of not guilty and order the acquittal and discharge of each appellant.
Appeal dismissed.

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