Chief Vincent Duru (Alias Otokoto) v S (SC.235/2012) [2016] NGSC 88 (8 December 2016)

IBRAHIM TANKO MUHAMMAD
NWALI SYLVESTER NGWUTA
OLUKAYODE ARIWOOLA
JOHN IN YANG OKORO
IBRAHIM TANKO MUHAMMAD

I. T. MUHAMMAD, JSC: I read before now, the judgment just delivered by my learned brother, Ariwoola, JSC. I adopt his reasoning and conclusion. I dismiss the appeal. I abide by consequential orders made in the lead judgment of my learned brother, Ariwoola, JSC.

JOHN INYANG OKORO, JSC: I read in draft the lead judgment of my learned brother Olukayode Ariwoola, JSC, just delivered.

 

I am in agreement with the reasons advanced and the conclusion reached therein that this appeal lacks merit and ought to be dismissed. I adopt the said lead judgment as mine.   I also dismiss the appeal. I abide by the consequential orders made therein.

NWALI SYLVESTER NGWUTA, JSC: I read in draft the lead judgment just delivered by my learned brother, Olukayode Ariwoola, JSC, and I entirely agree with His Lordship's analysis leading to the conclusion that the appeal lacks merit and ought to be dismissed.

I accordingly dismiss the appeal and abide by the consequential orders made therein.
 
Appeal dismissed.
 
OLU ARIWOOLA, JSC:  This is an appeal against the judgment of the Court of Appeal, Owerri Division delivered on the 5th day of April, 2012

The appellant and six others had been charged jointly before the High Court of Imo State, Owerri Judicial Division with the murder of one Anthony Ikechukwu Okoronkwo, aged eleven (11) years, an offence punishable under Section 319(1) of the Criminal Code Cap. 30 Laws of Eastern Nigeria, 1963, applicable to Imo State of Nigeria.

The gist of the case briefly as presented by the prosecution before the trial court is as follows:-

Sometime on 19th September, 1996, the deceased Anthony Ikechukwu Okonkwo was hawking cooked groundnuts around Otokoto Hotel when one Innocent Ekeanyanwu lured him into the hotel on the pretence that he wanted to buy the groundnuts. The deceased was later drugged and subsequently killed by Innocent Ekeanyanwu with the assistance and support of Alban Ajaegbu and Samson Nnamito, on the instruction and request of Vincent Duru alias Otokoto, who was the Proprietor and Managing Director of the hotel. It was Leonard Duru who had requested for the head of a young male person for ritual purposes. In the process, the deceased's head was decapitated and the tip of his penis cut off, while the remains was buried in a cassava farm within the premises of the hotel. The said farm was said to have been cultivated by the wife of the appellant.

It was while Innocent Ekeanyanwu was on his way to deliver the head of the deceased, as instructed by Vincent Duru to Leonard Unogu that he was arrested by a team of policemen at a road block, acting on a tip off by one Hillary Opara. Upon a search conducted on Innocent Ekeanyanwu, a human head was found on him which was later discovered to be that of one Ikechukwu Okoronkwo. Upon interrogation by the police, the said Innocent Ekeanyanwu informed the police that he had killed the boy Ikechukwu Okoronkwo and that it was his Uncle, Leonard Unogu, alias Ochiviozuo of Eziama who had requested him to procure the head for him. That he had earlier gone to deliver the head to Leonard Unogu but did not see him. He was on his way back to Owerri when he was arrested.
 
Upon the disclosure to and discoveries made therefrom by the police, the appellant and the others were arrested and charged with the murder of Ikechukwu Okoronkwo.

 

It is however on record that the said Innocent Ekeanyanwu died in police custody before the police concluded their investigation.

At the trial, the prosecution called eleven (11) witnesses and tendered several exhibits which included the statements of the accused made to the police. Each of the accused testified and the appellant in particular called, in addition, one witness - DW10. At the conclusion of the trial, the learned trial Judge C. E. Nwosu-lheme, (as he then was) believed the case as presented by the prosecution and accordingly found the appellant, among others, guilty, convicted and sentenced him to death by hanging.

 

The appellant's appeal to the lower court against the judgment of the trial court was found to be unmeritorious and was dismissed. The lower court accordingly affirmed the conviction and sentence of the appellant.

Being dissatisfied with the judgment of the lower court, the appellant further appealed to this court upon seven(7) grounds of appeal.

 

The instant appeal was then heard on 6th October, 2016 upon the following processes. Appellant's brief of argument filed on the 15th day of June, 2012 and the respondent's brief of argument filed on the 4th day of October, 2012 but having been filed out of time was deemed properly filed and served on the 12th of June, 2013 sequel to the respondent's application so to do.

From the said seven grounds of appeal, the appellant distilled the following three issues for determination of the appeal.

 

Issues for Determination.

 

In arguing the appeal, learned senior counsel for the appellant - Dr. Amuda-Kannike, SAN took the above issues seriatim. On issue 1, he submitted that the learned Justices of the lower court were wrong to have concluded that Section 30 of the Evidence Act, Laws of the Federation of Nigeria, 2011 as amended allow them to rely on the facts contained in Exhibits 21 and 36 against the appellant. He referred copiously to the findings of the lower court and their observations on pages 120 and 121 of the record, from the judgment of the trial court on the interpretation of Section 30 of the Act in relation to Exhibits 21 and 36 and made three deductions. Learned senior counsel submitted that what Section 30 of the Evidence Act is saying is not that the statement and allegations against the appellant contained in Exhibits 21 and 36 can be used against him, but that, if by looking at Exhibits 21 and 36, a clue was given as to where certain facts are kept or certain Exhibits are kept, then the fact that Exhibits 21 and 36 stated where such evidence were, including the Exhibits that were eventually discovered may be given in evidence. Learned senior counsel referred to Section 30 of the Evidence Act, and contended that applying its provisions, the only evidence that would have been available to the courts are :-

 

Learned senior counsel submitted that the lower courts instead of using the provisions of Section 30 of the Evidence Act in favour of the appellant used it against him to conclude that the appellant participated in the murder as stated in Exhibit 36 given by a co-accused and applied same to convict the appellant, thereby causing a miscarriage of justice. He urged the court to resolve the issue in favour of the appellant.

 

On issue 2, learned senior counsel submitted that the learned Justices of the lower court were wrong to have relied on Exhibits 21 and 36 against the appellant when it was clear that the two Exhibits were unreliable in law.

 

Learned senior counsel contended that instead of deciding that Exhibits 21 and 36 which were the confessional statements of a co-accused, late Innocent Ekeanyanwu ought not to be relied upon by the learned trial Judge, their Lordships failed to do so and on their own even used the same Exhibits, especially Exhibit 36 against the appellant which he submitted led to a miscarriage of justice. Learned senior counsel again referred to the observations of the court below on pages 120 and 124 on the judgment of the learned trial Judge and submitted that their Lordships ought to have rejected and overturned the appellant's conviction for murder having realized that the trial Judge placed reliance on Exhibits 21 and 36 which the trial court ought not to have done.

 

Learned senior counsel contended that it is not in doubt that both Exhibits 21 and 36 were confessional statements of a co-accused, late Innocent Ekeanyanwu who died in police custody even before the trial commenced. He submitted that Exhibit 36 especially cannot be relied upon against the appellant because the statement was not made in the presence of the appellant for him to have adopted same either by words or conduct. He relied on Section 29(4) of the Evidence Act, 2011 and Dibie Vs. State (2005) All FWLR (Pt.259) 1995; Ozaki Vs. State (1990) 1 NWLR (Pt.124) 92 at 113.

 

He submitted further that it is the law that a confessional statement of a co-accused made to the police by an accused person is not evidence against a co-accused and the court must warn itself of this fact so that the mind will not be affected by that statement in considering the case against the co-accused.

 

Learned senior counsel contended that another reason why the courts below ought not to have relied on Exhibit 36 was that the said Exhibit was allegedly made under duress and obtained by force from the maker - Late Ekeanyanwu. He relied on section 29(2) of the Evidence Act, and Exhibits 44 and 54. He submitted that if the evidence from the respondent shows that Exhibit 36 cannot be relied upon, there was no basis for the lower courts to pick a point of Exhibit 36 for the purpose of convicting the appellant. He urged the court to resolve the issue in favour of the appellant.

 

On issue 3, learned senior counsel submitted that the learned Justices of the lower court were wrong to have decided that the conviction of the appellant was proper on the basis of circumstantial evidence when it can be seen that the said circumstantial evidence was not direct, positive nor cogent as required by law. He submitted that it is the law that where direct evidence is not available, such as was the case of the appellant, the circumstantial evidence which must be available must be cogent and point irresistibly and unequivocally and must be compelling against the accused before a conviction can be sustained. He relied on State Vs Ogbubunjo (2001) 2 ACLR 5277 Fatoyinbo Vs A. G. Western Nigeria (1966) WNLR 4, Atano Vs. A. G. Bendel State (1988) 2 NWLR (Pt.75) 2001.

Learned senior counsel submitted that since there existed no cogent, direct, compelling and unequivocal circumstantial evidence against the appellant, the learned Justices of the lower court were completely wrong to have resorted to circumstantial evidence. He submitted further that in order to support a conviction on the question of circumstantial evidence, it must not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the accused person and no one else was the murderer. It must leave no ground for reasonable doubt. Learned senior counsel contended that such evidence is expected to lead irresistibly to the guilt of the accused and inconsistent with any other rational conclusion. There must be no other co-existing circumstances which can weaken such inference. He relied on Joseph Lori & Anor Vs The State (1998) 8-11 SC 31. Uweesai & Anor Vs. The State (1976) 11 SC 39; Phillip Omogodo Vs. The State (1981) 5 SC 5 at 24.

 

On whether the mere fact that the corpse of the deceased was found at Otokoto Hotel amounts to circumstantial evidence of guilt against the appellant, learned senior counsel submitted that it does not amount to circumstantial evidence against the appellant for several reasons that he gave, including the fact that there was no evidence that the appellant directed that the corpse be buried on the hotel land. There was no evidence that he was aware that any corpse was buried at the Hotel. There was no evidence that the appellant was seen at any time, around the burial site nor witnessed what was buried. There was no evidence of any telephone conversation between late Innocent Ekeanyanwu and the appellant on the issue, around the period of time the deceased was killed and buried on the Hotel land.

 

Learned senior counsel contended that there were doubts as to the finding of the corpse of the deceased at Otokoto Hotel but that the court below failed to take the doubts into consideration in their judgment in allowing it as enough circumstantial evidence to sustain conviction. He referred to the statements of Innocent Ekeanyanwu in Exhibits 21 and 36 on where he had buried the remains of Okoronkwo after he beheaded him. First at Mbaa River as in Exhibit 21 and later at Otokoto Hotel as in Exhibit 36. He contended further that since there was the possibility of transferring the corpse to the hotel by PW1 and others like him who hated the appellant, then he submitted that circumstantial evidence as to discovery of the corpse at Otokoto Hotel cannot hold against the appellant as the said evidence was not cogent enough and there were other co-existing circumstances which weakens the inference on this point of the recovery of the corpse at the appellant's hotel.

 

On the statement credited to the appellant as having been said upon citing the deceased staff with the police within the premises of the Otokoto hotel, such as "Have you implicated me?" , and the denial of the appellant and the testimony of DW10 - who was on the team of policemen who investigated the case, that the appellant never made such statement to the deceased Innocent Ekeanyanwu, learned senior counsel submitted that the learned trial Judge ought not to have picked and choose as to who to believe in the testimony of PW1 and DW10.
 
To have believed PW1 that the appellant made the statement led to miscarriage of justice.

Learned senior counsel referred to the testimony of PW1 and DW10 both policemen involved in the investigation of the alleged murder and submitted that the case against the appellant was a mere suspicion that he committed the offence of murder. He concluded by saying that suspicion no matter how grave, great or strong, it cannot amount to admissible proof that an accused person committed an alleged crime. He relied on Onah Vs State (1985) 3 NWLR (Pt.12) 236; Bozin Vs State (1985) 2 NWLR (Pt.8) 465.
Learned senior counsel finally submitted that the court below was wrong with the inferences it held on the circumstantial evidence which were not direct, positive nor cogent. He urged the court to resolve issue 3 in favour of the appellant and allow the appeal and set aside the conviction and sentence of death imposed on the appellant. He urged the court to acquit and discharge the appellant.
 
In the respondent's brief of argument deemed filed on the 12 day of June, 2013 the following two issues were formulated for determination of this appeal.

 

 

In arguing the first issue, the respondent submitted that the learned justices of the Court of Appeal correctly construed Section 30 of the Evidence Act, 2011 in relation to Exhibits 21 and 36 and that no miscarriage of justice was occasioned to the appellant thereof.

Learned counsel for the respondent referred to the findings of the court below on page 120 lines 20-29 Vol.2 of the record and contended that the learned trial Judge did not rely on the confessional statement of late Innocent Ekeanyanwu, Exhibit 36, rather the court relied on facts and evidence discovered as a result of Exhibits 21 and 36. He submitted that the learned Justices of the lower court were right in their assessment of the decision of the trial court in his evaluation of the evidence adduced before him during the trial.

Learned counsel referred to the findings of the trial court on the circumstantial evidence the court relied upon to convict the appellant and which the court below agreed with to affirm the conviction and sentence of the appellant. He submitted that the inferences made by the two courts below are concurrent findings of facts based on credible circumstantial evidence, but not just on the statements of late Innocent Ekeanyanwu contained in Exhibits 21 and 36.

 

Learned counsel contended that where there are concurrent findings of facts by the two courts below, the Supreme Court will not interfere with such findings where the findings are justified and supported by credible evidence. He relied on State Vs Giodfrev Ajie (2000) FWLR (Pt.16) 2813;   Bassey Akpan Archibong Vs The State (2007) 143 LRCN 228. He submitted that the concurrent findings of facts in this case are supported by credible evidence.

 

Learned counsel referred to and quoted extensively from Exhibit 36, the statement of the deceased co-accused to the appellant to show the facts that were discovered as a consequence of the information in the statement. Also, the testimony of PW11 on pages 204 to 205 of the records and testimony of PW1 and PW5 on pages 61 and 110-111 of the record of appeal. Learned counsel contended that without the information received from Exhibit 36, discovery of the fact that the deceased was murdered and buried at the Otokoto Hotel could not have been made. He submitted that without the facts discovered as a consequence of the information received by virtue of Exhibit 36, the police team would have ended their investigation fruitlessly at the Mbaa River.

 

Learned counsel further submitted that the learned Justices of the Court of Appeal were right in holding that the trial Judge by Section 30 of the Evidence Act, LFN, 2011 acted within his powers and correctly evaluated and ascribed probative value to the evidence adduced before the trial court. And that there was no miscarriage of justice occasioned in the application of Section 30 of the Evidence Act, 2011. He urged the court to so hold.

On the respondent's issue 2, learned counsel contended that the learned Justices of the Court of Appeal were right in upholding the conviction of the appellant which was based on circumstantial evidence as the said evidence was direct, positive and cogent.

Learned counsel gave circumstantial evidence as the proof of circumstances from which according to the ordinary course of human affairs the existence of some fact may reasonably be presumed. Put in the mathematical language, it is that evidence surrounding circumstance which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. He relied on Mustapha Mohammed & Anor Vs The State (2007) 153 LRCN 10 at 132.
 
Reference was made to the case of the prosecution as adduced before the trial court on the alleged movement of the appellant and contended that the appellant was caught by Section 7(d) of the Criminal Code. He referred, in particular, to the testimony of PW1 and contended that the piece of evidence that connected the appellant to the alleged crime was not challenged or debunked under cross examination by the defence. He submitted that where a party fails to cross examine a witness on an issue raised in the evidence-in-Chief, he is deemed to have accepted the truth of the witness's testimony. He relied on Patrick Oforlette Vs. The State (2000) FWLR (Pt.2) 2081; The State Vs Femi Oladotun (2011) 199 LRCN 65.

Learned counsel submitted that since the evidence of PW1 to the effect that the appellant walked up to late Ekeanyanwu as PW1 was guarding him and without any prompting asked him:-

He referred to the testimony of DW10 also a policeman and one of those who investigated the murder, but submitted that his testimony which attempted to deny the statement credited to the appellant, did not amount to a challenge or debunk of the testimony of PW1. At best, he described it as an afterthought, an exercise in futility. Learned counsel contended that there was no evidence on record that there was any other person with PW1 when the appellant was said to have made the statement credited to him.

Learned counsel referred to the evidence on record that the headless body of the deceased was discovered buried and was exhumed in a cassava farm within the Otokoto Hotel premises which farm was being cultivated by the appellant's wife in consequence of the information received from Exhibit 36. The testimony of PW1 and PW10 revealed that the deceased co-accused who made Exhibit 36 was living in a room behind which was the cassava farm of the appellant's wife within the Otokoto hotel premises, and these pieces of testimony were neither controverted nor debunked, but rather the appellant denied knowledge of the person who was farming within the hotel premises.

 

Learned counsel contended that the discovery and exhumation of the headless body with part of his penis cut off at the Otokoto hotel led to the arrest of the 6th accused person - Leonard Unogu who was also discovered to be well known to the appellant, though which fact the appellant tried to deny. The testimony of the 6th accused that the appellant and himself had known each other for many years was not controverted by the appellant beyond merely denial. Learned counsel submitted that the denial by the appellant of ever knowing the 6th accused was only to show that he could not have sent late Ekeanyanwu to deliver the head of the deceased to the 6 accused. He concluded that that was a natural behavior of a guilty person.
 
Learned counsel contended further that in consequence of Exhibit 36, evidence of other graves within the Otokoto hotel was discovered and it was on record that the hotel was a notorious one well known for its criminal activities. He submitted that the case was in no way based on suspicion. He referred to the record, for the evidence that the hotel premises was a well fenced property with gate and watchmen guarding it day and night, as the 3rd and 4th accused persons were the watchmen. Learned counsel submitted that the circumstantial evidence adduced in the trial pointed unequivocally to the fact that the appellant procured late Innocent Ekeanyanwu and the 1st and 2nd accused persons to behead the deceased. He urged the court to so hold and dismiss the appeal and affirm the judgment of the court below which affirmed the conviction and sentence of the appellant.

 

I have carefully examined the issues formulated by both parties for the determination of this appeal and I have decided to utilize the issues distilled by the appellant. However, being interwoven the three issues shall be taken together in my resolution.

As I stated earlier, the appellant was tried along with six others before an Imo State High Court for the murder of one Anthony Ikechukwu Okoronkwo on 19/9/1996. He was convicted and sentenced to death. Failure of his appeal before the lower court led to this instant appeal.

 

It has long been settled beyond controversy from several decided cases of this court that to secure conviction on a charge of murder, the prosecution must necessarily prove the following:

(a)    That the deceased had died;
(b)    That the death of the deceased was caused by the accused; and
(c)    That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
 
See; Ogba Vs. The State (1992) 2 NWLR (Pt.222) 1634; Monday Nwaeze Vs. The State (1996) 2 NWLR (Pt.428) 11, Fred Dapere Gira Vs. The State (1996) 4 NWLR (Pt.443) 375; Madu Vs. The State (2012) 6 SC (Pt.l) 80 Mukaila Salawu Vs. The State (2014) 12 SCN (Pt. 2) 622 at 642-643; Inyang Akpan Vs. The State (1994) 9 NWLR (Pt.368) 347.

Generally, the evidence relied upon by the prosecution to establish a charge of murder may be direct or circumstantial. However, whether the evidence adduced and relied upon is direct or circumstantial in nature, the important thing is that it must establish the guilt of the accused beyond reasonable doubt. In other words, the guilt of an accused person can be proven or conviction achieved by the prosecution by confessional statement, eye witness evidence or circumstantial evidence. See; Adekoya Vs. The State (2012) 6 SCM 58; Mbang Vs. The State (2012) 10 SCM 31 The State Vs.Isah & Ors (2012) 12 SCM (Pt.2) 425.
 
It is on record that from the evidence adduced by the prosecution, one Innocent Ekeanyanwu in whose possession a fresh human head was found had confessed to the killing of the deceased -Ikechukwu Okoronkwo. The said Ekeanyanwu was reported to have made confessional statements to the police as to how he came about the fresh human head. However, the accused was reported to have died in custody of the Police before the conclusion of Police investigation. He never stood trial.

The prosecution during trial called eleven witnesses and tendered several Exhibits including the statements of the accused. Exhibits 21 and 36, in particular, were the statements said to have been made by and obtained from late Ekeanyanwu. , There is no doubt, the prosecution was said to have relied on circumstantial evidence to prove its case at the trial court, since there was no direct evidence of an eye witness and the appellant did not confess to his involvement in the killing of the deceased, Okoronkwo.
 
As I had earlier stated in this judgment, the sum total of the submission of learned senior counsel for the appellant in his brief of argument is that the trial court relied on the statements obtained from Ekeanyanwu, a co-accused with the appellant but who died before the trial commenced to convict the appellant. But the learned counsel for the respondent disagreed and submitted that the conviction was based on circumstantial evidence, but not on Exhibits 21 & 36, tendered by the prosecution.

The law in relation to circumstantial evidence has long been settled beyond dispute or controversy. But it is the application of the law that is often the cause of dispute between the prosecution and defence.
In the English case of R Vs. Taylor & Ors (1928) 21, CAR 20 at 21, the Lord Chief Justice of England, Lord Hewart stated the law as follows:

 

The above statement of the law was approved by this court in Fatoyinmbo Vs. Attorney General of Western Nigeria (1966) W.N.LR. 4. See; also, Adie Vs The State (1980) 1-2 SC 1 at 16; Ukorah Vs. The State (1977) 4 SC 167; Aigbadion Vs. The State (2000) 1 NWLR 686.

 

However, for circumstantial evidence to support or ground conviction, it must not only be cogent, complete and unequivocal, but compelling and must lead to irresistible conclusion that the accused and no one else is responsible for the murder of the deceased. See; Yongo Vs. COP (1992) 80 NWLR (Pt.257) 36; Alake Vs. The State (1992) 9 NWLR (Pt.265) 260.
 
In the instant case, it is clear on the record, as I stated earlier, that one Innocent Ekeanyanwu, who was a staff of the appellant's Otokoto Hotel was apprehended by the Police at a checkpoint, having been found in possession of a fresh human head. In his first statement to the Police he admitted that he killed the deceased, owner of the head and dumped this headless body in Mbaa river. But it was in another statement obtained by PW11 which was admitted as Exhibit 36 that reference was made to the role played by the appellant in the killing of the deceased Okoronkwo. It is note worthy that there is nothing on record to show that after the said statement was made, which implicated the appellant, that the appellant was confronted with the said statement for him to either admit or deny same. There is also nothing on record that the appellant adopted the contents of the said statement as his own. The law is very clear on this situation, and it is that the confessional statement of an accused is only admissible against the maker but not against a co-accused who is incriminated in the said statement except the said co-accused adopts same. The law expects that where the prosecution intends to use the statement against a co-accused, the prosecution is bound to make a copy of the incriminating statement available to the co-accused. See; Yongo & Anor Vs. COP (supra).

 

There is no iota of evidence on record that the statements credited to Ekeanyanwu which were admitted as Exhibits 21 and 36 were made in the presence of the appellant. And there is nothing on record to show that he adopted the said statement. As a result, the said statements are ordinarily not admissible against the appellant. In other words, there is nothing on record to show that a copy of the said statements of the deceased Ekeanyanwu was made available to the appellant by the Prosecution. That situation alone rendered the said statements inadmissible against the appellant. In other words, ordinarily the court cannot ascribe the confession in the said statements to the appellant having not been made available to him and he adopted same.
 
However, the position of the law is clear. Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of that fact, together with the evidence that such discovery was made in consequence of the information received from the accused, may be given in evidence where such information itself would not be admissible in evidence. See; Section 30 of the Evidence Act, 2011 as amended; Farounbi Kareem Vs. FRN (2002) 4 SC (Pt.ll) 42;; (2003) 1 WRN 1; Nilla Vs. The State (1985) 3 NWLR (Pt.ll) 190.