COURT OF APPEAL OF NIGERIA
ON WEBNESDAY, 28TH DAY OF JANUARY, 2015
CA/B/124C/2010
OCHE MATTEW V. THE STATE
APPEARANCES
Ikenna Okoli with Lawal Alabi For Appellant
AND
H. M. Falowo Plc M. O. J. Ondo State For Respondent
MAIN JUDGMENT
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ondo State, Owo Judicial Division, presided over by Honourable Justice A. O. Adebusoye, delivered on 28th September, 2009 in which the Appellant was convicted of the offence of murder and sentenced to death.
The Appellant was on 10th April 2008 arraigned before the High Court of Ondo State, Owo Judicial Division upon a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code cap 30 Vol. 11 Laws of Ondo State of Nigeria, 1978. The case of the prosecution is that on 8th December, 2004 following an alarm discovered to be false raised by one corporal Macaulay Inomiesa, Sergeant Eze John led a team of four mobile policemen including the Appellant to Obayanju Hotel in Owo on information that armed robbers were camped there. At the scene, one Akeem Akinwunmi (the deceased) was arrested and shot dead by the Appellant. It is the case of the prosecution that the circumstances surrounding the presence of the mobile policemen including the Appellant at the scene of the crime was questionable as there was no reported case of armed robbery or an attempt in the area at that time. It is also the case of the prosecution that the deceased was not armed at the time he was shot by the Appellant and that the exhibits purportedly said to have been recovered from him were not recovered from him or from any of those arrested at different locations in and around Obanyanju Hotel with the deceased on the day of the incident. That other passerby received gunshot wounds with one Okechukwu Nwankwo, a spare parts dealer in Owo receiving treatment at the Federal Medical Centre, Owo. And, that the Appellant shot and killed the deceased for no justifiable reason.
The case of the Appellant is that on 8th December 2004 at about 8:30p.m. Sergeant Ejeh and Inspector Ogidan informed him and some other mobile policemen at their duty post that one corporal Macaulay Inomesia reported that he saw three people standing in front of Obayanju Hotel discussing. That one of the three persons was a dismissed police officer while the third person had a locally made pistol and UTC axe tied to his waist. That the said Corporal Macaulay Inomesia suspected that the three persons were armed robbers. That Inspector Ogidan mobilized five of them and they proceeded to the scene of crime only to get there and not locate the suspected armed robbers. That Sgt. Eze who was the leader of the team, ordered that three officers should enter the hotel while he (the Appellant) was ordered to stand on guard outside. That it was Corporal Gope Enong who arrested the deceased inside the hotel and recovered a locally made pistol and UTC axe from him. That the deceased was handed over to him, while he was standing on guard outside the hotel. That he ordered the deceased to lie down. The deceased pretended as if he was going to obey. Immediately Corporal Gope Enong went back into the hotel, the deceased got up and ran. The Appellant shouted that the deceased should stop but that he did not heed to his call. He then shot at the deceased's direction with three bullets and that he (the deceased) was hit by one of the bullets. Also, that some passerby received gunshot wounds. He (Appellant) was trained on the use of firearms. His intention was to prevent the deceased from escaping. That there was no light on the day of the incident and that from the exhibits recovered from the deceased, he believed the deceased was an armed robber but that the deceased was not armed when he shot and killed him. That the deceased did not portend any danger to him when he shot and killed him but he was justified by Force Order No. 237 (E).
The prosecution called four (4) witnesses and tendered four (4) exhibits A, B, C and D, the Appellant testified for himself and called no witnesses. At the close of evidence and addresses by Counsel, the learned trial judge delivered his judgment on the 28th of September, 2008 and found the Appellant guilty of murder and sentenced him accordingly.
Dissatisfied with his conviction and sentence, the Appellant filed a Notice of Appeal dated 9th October 2009. However, on 31st October, 2011 this Honourable court granted leave for the Appellant to file Amended Notice of Appeal and deemed as properly filed the one earlier filed on 20/9/2010. The Appellant's Amended Notice of appeal contains seven (7) grounds of appeal.
The Appellant's Amended Brief of Argument dated 20/9/2012 and filed on the same day was deemed filed on 23/01/2013.
Respondent's Brief of Argument dated 13/03/2013 and filed on 19/03/2013 was deemed filed on 13/05/2014.
Learned Counsel for the Appellant nominated three (3) issues for determination. They are:
(i) Whether the learned trial judge was right in admitting Exhibit B and relying on it to convict the Appellant.
(ii) Whether the learned trial judge was right in not considering the issue of the prosecution not calling vital witnesses and whether Section 149 (d) Evidence Act should not be invoked in favour of the Appellant.
(iii) Whether the learned trial judge was right in convicting the Appellant of the offence of murder in all the circumstances of this case.
Learned Counsel for the Respondents adopted the issues formulated by the Appellant.
On issue 1, Appellant's Counsel submitted that Exhibit B is the police case file which contains the findings of the police regarding their investigation. That the learned trial judge relied heavily on Exhibit B in convicting the Appellant.
He argued that Exhibit B was not in conformity with the evidence of Sgt. Eze John in the proof of evidence, he furthered that Exhibit B was put in evidence by PW3, Sgt Pelemo Adeniyi who was not the maker of the document.
He referred to the cases of Lambert v. Nigerian Navy (2006) 7 NWLR (Pt.980) 514 at 547; Awuse V Odili (2005) 16 NWLR (Pt.950) 416 at 509.
Appellant's Counsel submitted that since the PW3 was not the maker of Exhibit B, the learned trial judge should not have admitted it in evidence much less relying on it in coming to the conclusion that the Appellant was guilty of murder.
Learned Counsel referred to the cases of Orji v. Ugochukwu (2009) 14 NWLR (pt.1161) 207 at 289 and Osuoha V State (2010) 16 NWLR (Pt.1219) 364 at 401 and submitted that the court cannot rely on the findings in Exhibit B because they are documentary hearsay.
He concluded that the learned trial judge was wrong in attaching any weight to Exhibit B and relying on it to convict the Appellant.
Learned Counsel for the Respondent on the other hand reviewed the evidence of PW3 and submitted that PW3 was a member of the team of policemen that investigated the incident that occurred at Obayanju Hotel on 8th day of December 2004. That the team wrote a report of its findings which was duly signed by Assistant Commissioner of Police Ockechukwu and that the report of the findings as contained in the police case file was admitted without objection as Exhibit B.
Respondent's Counsel submitted further that under cross-examination, learned Counsel for the Appellant never raised the issue of who was the maker of the report but rather cross-examined PW3 on the investigation carried out by him and his findings. He submitted that PW3 qualifies as one of the makers of Exhibit B and was questioned on the report under-examination.
He submitted that where a document, its contents, conveys hearsay evidence then the parol or oral evidence based on that document will definitely or invariably be hearsay. That, the reverse position is also correct and it is that where a document, by its contents does not convey hearsay evidence, then the parol or oral evidence based on it will not be hearsay if the witness has an intimate relationship with the document and gives evidence of that relationship.
Counsel submitted that Exhibit B gave PW3 enough materials to give evidence and the evidence he (PW3) gave based on the exhibit cannot be said to be hearsay.
In deciding issue 1, I must point out that it is an overstatement from all the circumstances of the case for the Learned Counsel for the Appellant to allege that the learned trial judge relied heavily and based the conviction of the Appellant on Exhibit B. One would have thought that the conviction of the Appellant was essentially based on the evidence of the Appellant himself that he shot the deceased, the evidence of the eye witness to the incident PW1 and that of the Pathologist PW4. The evidence of PW3 and Exhibit B came in relevantly also to dispel the defence of justification that was put up by the Appellant.
In any event, both the evidence of PW3 and Exhibit B were rightly admitted and acted upon by the learned trial judge. In particular, Exhibit B was properly admitted under the provisions of Section 77 (d) and 36 (a) and (b) of the Evidence Act Cap.112 LFN 1990.
Section 36 of the Evidence Act provides thus:
"Notwithstanding the provisions of this Act or of any other law as herein provided, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the Investigating Police Officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the court if (a) the defence does not object to the statement being admitted; and
(b) the court consents to the admission of the statement.
In the instant case, apart from the fact that PW3 who tendered Exhibit B was indeed a member of the police team that investigated the crime, there was indeed no objection at the trial to the admissibility of Exhibit B.
The cases of Orji v Ugochukwu (supra) and Osuoha V State (supra) relied upon by the Learned Counsel for the Appellant can be easily distinguished from the facts of the instant case. In the first place, in the case of Osuoha V State (supra) the investigating police report was not tendered by a member of the investigating team, secondly, the learned Counsel for the Appellant has not pointed out which of the stated facts in Exhibit B actually offends the hearsay rule.
Furthermore, and beyond the content of Exhibit B which was read out in open court the cross-examination of PW3 at pages 23 - 24 of the records read partly as follows:
"....At the end of our investigation, we discovered that the exhibits listed in the proof of evidence - (a) one shot gun (b) 12 life cartridges (c) an axe (d) 1st statement and 2nd statement of the accused and (e) one Samsung handset were all false.
The exhibits are with the exhibit keeper at SARS Akure. From our investigation, we discovered that the said Exhibits were not recovered from deceased and his gang. ---- It was the I.P.O. at Owo that handed over the exhibits and three other suspects to us. We later sent a signal to Owo for the accused person to report to Akure. We discovered that the exhibit said to be recovered could not be proved as they are false.
From our investigation, we discovered that there was no armed robbery on that very day."
From the foregoing, Exhibit B was properly admitted by the learned trial judge. Issue 1 is resolved against the Appellant.
On issue 2, Appellant's Counsel referred to the provision of Section 149 (d) of the Evidence Act and submitted that the trial court was wrong in not considering the issue of the prosecution not calling vital witnesses in view of the controversy generated by the circumstances under which the deceased was shot and the lower court ought to have invoked the provisions of Section 149 (d) of the Evidence Act. He argued that the prosecution did not call vital witnesses including its first witness Sgt. John Ejeh whose evidence was material in establishing the circumstances under which the deceased was shot. Besides, said Counsel, no member of the team that accompanied the Appellant to the scene of the incident was called to elucidate on the incident. The exhibit keeper was also not called to give evidence.
These, he said are witnesses whose evidence were vital in determining the circumstances under which the deceased was shot but were not called upon by the prosecution in order to deny the lower court of the opportunity of knowing the true state of facts.
Counsel referred to the case of Usufu v. State (2007) 1 NWLR (pt.1020) 94 at 118 and submitted that failure of the prosecution to call material witnesses is fatal to the case of the prosecution. He added that the material witnesses in the instant case include (a) CPL Macauley Elomesi (b) Sgt. Ejeh John (c) CPL. Gope Enong (d) Sgt. Sunday Erohile (IPO) who prepared Exhibit C.
He submitted that CPL. Macauley Elomesi, Sgt Ejeh were eye witnesses. They played pivotal role in the saga. There was no attempt to call them. That Sgt. Sunday Erohise was the IPO at Owo Police Station who first investigated the case and who recovered the axe, cartridges and locally made pistol from the police team and handed over to the State CID, Akure. He is in a better position to say if they were planted. There was no explanation as to why these persons were not called.
He urged us to hold that the failure of the prosecution to call the aforementioned witnesses and others raises a strong presumption that their evidence, if called, would be unfavourable to the prosecution.
Learned Counsel for the Respondent in response to issue 2 submitted that the provision of Section 149 (d) of the Evidence Act 2004 (now Section 167 (d) of the Evidence Act, 2011) was considered in the case of Ogbodu V The State (1986) 5 NWLR (pt.41) 294 where this court held that Section 149 (d) of the Evidence Act deals with withholding of evidence and not the failure to call a particular witness to testify. That the decision in Ogbodu V. The State (supra) was confirmed by the Supreme Court in Ogbodu V. The State (1987) 2 NWLR (pt.54) 20.
Learned Counsel further referred to the cases of Asariyu V The State (1987) 4 NWLR (Pt.67) 709 and Oguonzee V The State (1998) 5 NWLR (pt.551) 521 at 553 and submitted that Section 149 (d) now Section 167 (d) of the Evidence Act 2011 provides for evidence, not witness. That the Respondent is at liberty to pick and choose witnesses and cannot be foisted with any particular witness. The duty of the Respondent is to prove the offence charged beyond reasonable doubt and so long as that burden is discharged, it does not matter whether a particular witness was not called to give evidence.
He referred to the cases of Oteki V. The State (2005) 4 ACLR 401 at 426; Akinyemi V The State (2001) 2 ACLR 32 at 47.
He submitted that the presumption under Section 149 (d) of the Evidence Act can be made if the court is satisfied that (i) the evidence exists (ii) it can be produced (iii) it has not been withheld by the person who would produce it.
He referred to the cases of Awoshile V Shotumbo (1986) 3 NWLR (Pt.29) 471, Onwujuba V Obienu (1991) 1 NSCC 492 at 497; Ogozi V The State (1998) 4 SCNJ 226 at 253; Okparaji & Anor V Ohanu & Ors (1999) 6 SCNJ 27 at 42 - 48.
He submitted that the pages 6 - 8 of the record contain the proof of evidence amongst others of Sgt. Ejeh Ezeh John and Sgt. Pelemo Adeniyi. That the prosecution did not withhold their evidence but that the prosecution was able to establish the role the said Sgt. Ejeh John played and that the circumstances surrounding the presence of the mobile policemen including the Appellant at the scene of crime was questionable. This, he said, was not objected to by the Appellant or his Counsel during the trial. And, that the Appellant in his defence testified for himself and chose not to call Sgt. Ejeh John or any other witness to exonerate or exculpate him from criminal responsibility. He concluded that Section 149 (d) of the Evidence Act 2004 (now Section 167 (d) of the Evidence Act 2011 can not avail the Appellant.
There is no question of the prosecution not calling vital witnesses in this case as suggested by the Learned Counsel for the Appellant. In addition, the law imposes no obligation on the prosecution to call a host of witnesses to prove its case, all it needs to do is to call enough material witnesses to prove its case, and in so doing, it has discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. See Olayinka V State (2007) 9 NWLR (pt.1040) 561; Imhanria V Nigerian Army (2007) 14 NWLR (pt.1053) 76.
Indeed, the evidence of a single witness, if believed by the court, can establish a criminal case even if it is a murder charge. Effiong V State (1998) 8 NWLR (pt.562) 362.
I equally agree with the Learned Counsel for the Respondent that the provision of Section 149 (d) could not be invoked in favour of the Appellant in this case. Section 149 (d) reads thus:
"149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case and in particular the court may presume------------
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The implication of this sub-section is that if a party to a suit does not adduce evidence which he is supposed and has the opportunity to adduce, then it may be presumed that the evidence will be against him if adduced. In the case of Bello V Kasim (1969) NMLR 148, a distinction was made between failure to call a particular witness and particular evidence. A party is not bound to call a particular witness if he thinks that he can prove his case otherwise. This point was stressed by Uwais JSC (as he then was) in Samuel Onwujuba & 2 Ors V Nathaniel Obienu & 4 Ors (1991) 4 NWLR (pt.183) 16 at 29.
"It is clear from the provisions of Section 148 (d) (now 149 (d) that what is required before the presumption therein applies is failure to call evidence and not failure to witness. Although a witness when called provides evidence in his testimony such evidence may be adduced in other ways. For instance a document may be tendered which made it possible to dispense with evidence of the witness or another person capable of so testifying may be called instead of that particular witness. When that happened, the presumption in Section 148 (d) now 149 (d) becomes inapplicable."
In the instant case Learned Counsel for the Appellant is not complaining about the withholding of evidence, but of the fact that a particular witness was not called to give evidence. The subsection is concerned with the failure to call evidence, and not the failure to call a particular witness. See. Francis Odili V The State (1977) 4 SC. 1 at 8; Ogbodu V The State (1968) 5 NWLR (pt.41) 294.
The presumption only applies where the prosecution has withheld evidence. See Tewogbade V Akande (1968) NMLR 404 at 408. The defence in the instant case was free to call Sgt. Ejeh John, CPL. Macauley Elomesi and others if they chose to do. In such circumstances, Section 149 (d) does not apply. There was no withholding of evidence.
Issue 2 is resolved against the Appellant.
On Issue No. 3, Learned Counsel for the Appellant reiterated the ingredients of the offence of murder through the case of Ubani V State (2003) 18 NWLR (pt.851) 224 at 241. He submitted that the prosecution did not prove the elements in the charge of murder against the Appellant.
Counsel reviewed the facts of the case as presented by the defence and submitted that it is imperative to note that the only eye witness to the incident was PW1 but that his testimony is not credible. That in his account of the incident, he had said in his evidence thus:
"The accused person responded by asking the said boy to lie down. The name of the boy was Akeem Adewumi. The boy reluctantly lied (sic) down in front of the accused person who was carrying a rifle shot the boy three times" (page 15 of the Records)
That the said PW1 disclosed so many traits to show his mendacity. For instance, at page 15 of the Records, he also said:
"I initially did not know the boy's name to be Adewumi Akheem, but when I got back home and people coming from the scene and passing in front of my house started mentioning that the boy that was shot was the son of Giwa Adewunmi."
But, that, under cross-examination he said that "I know Akheem Adewumi long before the day of the incident." He also said that the Appellant fired three shots at the deceased but this assertion was contrary to the evidence of PW4 (the forensic pathologist) who stated:
"I saw the deceased. He had only one gunshot wound. It will not be correct to say that the deceased was shot three times."
PW1, according to Counsel, equally said that the scene of the incident was well lit when the evidence of the Appellant was that it was dark. Appellant's Counsel submitted that PW1 was not a witness of truth and obviously had his own purpose to serve. This, he said explains the bundle of inconsistencies in his testimony. The trial court, ought not to have relied on the evidence of this witness in coming to the conclusion that the Appellant intentionally killed the deceased.
Appellant's Counsel submitted further that the trial court did not properly evaluate the evidence before him in arriving at the conclusion that the Appellant intentionally killed the deceased.
He itemized some of the erroneous findings as follows:
(a) "At the scene, one Akeem Adewumi, the deceased was arrested by the accused person, asked to lie down and was shot dead by the accused person" (page 53 of Records)
(b) "The prosecution during trial and as evidenced by the testimonies of the four witnesses and the documents tendered as exhibit has proved that on 08/12/2004 the accused person was a member of a team of mobile policemen that went to Obayanju Hotel in Owo around 8:30 p.m. on the questionable assignment from their duty post at the Olowo's Palace" (page 54 of the Records).
(c) "It was therefore an unauthorized mission with a hidden agenda as it has been established that there was no armed robbery alarm or even a threat of an armed robbery attack in the area at that time". (page 60 of the Records)
(d) "To my mind and based on the available evidence the accused person and members of his team were just fooling around on the day in question and had no business being at the spot."
(e) "With the poor visibility at that time caused by darkness ---------- and the number of people walking around at that time and within the vicinity of the said hotel Records). (page 64 of the Records)
(f) "The accused person was obviously not aiming at the legs of the deceased who was about 5 - 6 feet away from him to prevent him from escaping otherwise he would have likely succeeded in getting one of the legs of the deceased instead of his lung" (page 64 of the Records).
(g) "That in the process of evading harassment by the police team, the deceased took to his heels and in the dark with people moving about in the area, the accused person mindlessly and recklessly fired three shots at him. One of the shots fired by the accused person caused the death of the deceased as it entered his back, piercing his lungs while one of the shots entered the buttocks of a passerby who received treatment at the Federal Medical Centre at Owo."
Appellant's Counsel submitted that the above findings of the learned trial judge were not from the evidence led in court and all these operated on the mind of the learned trial judge in coming to the conclusion that the Appellant intentionally killed the deceased.
He argued that to start with, the deceased person was not arrested by the Appellant. He was arrested by the Appellant's team. The deceased, he said was only kept in the Appellant's custody. Counsel further submitted that from the evidence of PW2, the father of the victim that:
"During the time there was crisis in the town, some policemen were coming to Obayanju Hotel and they used to shot into the air scarring residents in that area." (page 19 of the Records)
[So] there was no basis for the learned trial judge to come to the erroneous conclusion that they were on a frolic of their own.
He submitted that the above findings are perverse and ought not to form part of the judgment of the court. It would appear that the trial court merely relied on speculation, which ran contrary to the principles of law. He referred to the case of Akpabio V The State (1994) 7 NWLR (pt.359) 635 at 669 - 670.
Appellant's Counsel also pointed out contradictions between the extra judicial statement of PW1 Exhibit A and his oral testimony. He argued that the effect of the contradictions and the evidence of other witnesses is that the evidence of PW1 is unreliable and should not be believed. He referred again to the case of Ubeni V State (supra).
Learned Counsel further posited that PW1 is a tainted witness who has a purpose to serve. That the purpose is that he was eager to implicate Gadafi (the person PW1 alleged was the one that pointed the deceased to the Appellant before the shooting). That in Exhibit A, PW1 said he had issues with Gadafi and that the father of the deceased also had issues with Gadafi. So he personally saw to it the case was investigated. He went with the father of the deceased up to AIG at Oshogbo.
The trial judge said Counsel ought to have warned himself before relying on the evidence of PW1 who is a tainted witness.
Counsel submitted further that in the instant case, the Appellant raised the defence of justification, he admitted shooting the deceased in order to prevent him from escaping from arrest and not because he wanted to kill him. The prosecution, said Counsel failed to discharge the burden placed on them to disprove that the defence of justification was not available to the Appellant. There was not cogent evidence before the trial court on which the court relied on in coming to the conclusion that the defence is not available to the Appellant.
He referred to the cases of Ozaki V State (1990) 1 NWLR (pt.124) 92 at 108 and Nwugure V State (1991) 1 NWLR (pt.165) 41 at 49 and submitted that the learned trial judge rejected justification as a defence for shooting the deceased thereby effectively placing the burden of proving that defence on the Appellant contrary to well known principles of law.
He submitted that the prosecution failed to prove that the Appellant intentionally killed the deceased. The evidence shows that the Appellant shot the deceased in unjustifiable circumstances. That it was an act of judicial somersault that the learned trial judge, after agreeing with the Appellant that the deceased tried to run away from a lawful arrest when he was shot, turned round and held that there was no basis for the appellant shooting the deceased and that the shooting was not justified in the circumstances of the case.
Counsel submitted that the Appellant relied heavily on Section 4 of the Police Act and use of Firearms (Force Order No. 237 (e)) in support of his action on the day in question. The action of the Appellant is covered by Section 4 of the Police Act and use of firearms (Force Order No. 237 (e)).
The learned trial judge, said Counsel also came to a wrong conclusion when he held that the evidence of the Appellant with regard to the events which culminated in the shooting of the deceased was destroyed by PW3.
Learned Counsel for the Respondent also reiterated the ingredients of the offence of murder by referring to the cases of Nwachukwu V The State (2002) 12 NWLR (pt.782) 543 at 568 - 569; Adava v. The State (2006) 9 NWLR (Pt.984) 152 at 167.
The Respondent submitted that there is no controversy as to the death of the deceased. It is also not in dispute that on 8th December, 2004, the Appellant shot and killed one Akeem Bayode Akinwumi. The testimony of PW4 that the deceased was shot from behind and not while facing the Appellant was strengthened and supported by the testimony of the Appellant that he shot the deceased to prevent his escape.
On the Appellant's submission that PW1 is a tainted witness, the Respondent submitted that it is settled that in criminal trials the mere fact of the relationship of a witness with either the victim of the offence or the accused person does not affect the probative value of his testimony. He referred to the case of Yahaya v. The State (2005) 1 NSCC 120 at 144 which merely emphasized the desirability of self warning before a trial judge could convict on such evidence. That, in the instant case, contrary to the submissions of Appellant's Counsel, in paragraphs 4.37 to 4.51 of the Amended Brief, the learned trial judge rightly warned himself of the evidence of PW1.
Furthermore, Respondent's Counsel submitted that the learned trial judge did not rely solely on the evidence of PW1 in arriving at the conclusion that the Appellant intentionally killed the deceased but, rather he accepted in part the story of the Appellant himself that he shot the deceased to death.
Learned Counsel reminded us that the intent for murder is the intent (a) to kill, or (b) to cause grievous bodily harm; or (c) to do an act or to make an omission