IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THURSDAY THE 19TH DAY OF OCTOBER 2023
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO: HOW/9C/2022
THE STATE
V
ARDO SALE MUSA
JUDGMENT
The Defendant, Ardo Sale Musa is standing trial before this Court on a two count charges of conspiracy to murder and murder contrary to Sections 324 and 319 (1) respectively of the Criminal Code, Cap 30, Vol. II, Laws of Eastern Nigeria 1963 applicable to Imo State.
The State alleged that the Defendant had on or about the 6″ day of November, 2020 conspired with Bargu Loulo (m), Doge Habu (m), Yakubu Bature (m) and Nugayi Haruna (m) to murder one Alhaji Haruna Yahaya (m) and had on the said 6 of November, 2020 at Fulani Village Mgbirichi murdered the said Alhaji Haruna Yahaya.
In discharging the burden of proof, the prosecution called five (5) witnesses and in denial the Defendant testified as DW2 and a witness as DW2
PROSECUTION’S EVIDENCE:
PW1 introduced herself as Tine Yahaya, a housewife residing in the Fulani Village of Mgbirichi, Ohaji Egbema LGA. She mentioned her familiarity with the Defendant, whom she knew even before she married Yahaya, her late husband. She revealed that she and the Defendant had lived together in the same house before her marriage to Yahaya, but the Defendant had moved to Onitsha. Yahaya, her husband, was killed by the Defendant, Sale, who is now deceased. On the morning of the incident, around 5:30 am, she heard a gunshot and rushed out of her house with her children and other wives of Yahaya. They witnessed Sale attacking Yahaya, using a machete to harm him and stabbing him. Sale also fired his gun, causing them to take cover. They called for help, and Alhaji Useni and Tofa later took Yahaya’s body for burial. She mentioned that the incident was reported to the police, specifically at the State CID (Criminal Investigation Department). She explained that there had been a prior dispute between Yahaya and Sale before the incident. Yahaya had arrested Sale with the police, and they had a court case, but he was eventually released due to pleas from people in the community. Prior to the incident, Yahaya had asked Sale to return a sum of Three Million Five Hundred Thousand Naira, and Sale had promised to do so on a Friday.
Cross examination of PW1:
Alhaji Useni and Tofa took the body of the late husband to bury him, and he was buried on the same day. PW1 confirmed that her husband had a dark complexion and that she was sleeping before 5:30 am, when the sound of a gunshot woke her up. She admitted to never having held or shot a gun before and stated that she was scared when she heard the gunshot. PW1 mentioned that her husband had four wives, and each had separate houses. She confirmed that she was not in her husband’s house on the day of the incident but was in her own house. PW1 clarified that she knew her husband had slept in his own house because she was with him until 3 am, and he died at 5:30 am. The cross-examiner, Nwuche, questioned the lack of evidence to show her husband’s death, to which she responded that her husband was healthy when she saw him last and that she witnessed his murder with a gun and dagger. PW1 claimed that her husband died on a Friday in November 2020 at 5:30 am and was buried according to Fulani tradition around 2 pm. She stated that he received no medical treatment before being buried. The cross-examiner attempted to challenge PW1’s statement, claiming discrepancies in her description of the murder weapon, whether it was a machete or dagger. She insisted that they were the same. The cross-examiner also questioned her ability to identify the Defendant in the dark at 5:30 am. She remained adamant that she recognized him and was certain it was the Defendant. Nwuche suggested that the person she saw might have merely resembled the Defendant, to which PW1 strongly disagreed, stating she knew the Defendant well. PW1 asserted that other witnesses from the village also saw the Defendant commit the act and provided statements to the police confirming this. Nwuche suggested that these witnesses may believe the Defendant was responsible due to a personal conflict between him and the husband. PW1 denied this, maintaining that the Defendant was the one who killed her husband. Finally, PW1 reaffirmed her statements to the police and in court, asserting that the Defendant was the one responsible for her husband’s death.
PW2
PW2 stated that she resides in Marcon Mbirichi. She confirmed her knowledge of the Defendant and her relationship with one Yahaya Haruna, who she identified as her father. She informed the court that her father, Yahaya, had been killed by Sale. On the day of the incident, which occurred on November 6, 2022, she was inside their house. At approximately 5:30 am, she heard gunshots, which prompted her to run outside. Upon coming out, she witnessed the presence of Sale and other individuals, with two of them holding her father, Yahaya, while Sale was attacking him with a machete. Seeing Sale assaulting her father, they rushed towards the scene, but Sale began shooting, causing them to seek cover.
The two individuals holding her father released him, and he fell to the ground. Sale continued to attack her father with the machete. The two individuals who had been holding her father ran into the bush while Sale chased them, firing his gun. They called Alhaji Tofa, whom she identified as a friend of her father Yahaya, for assistance. She also confirmed her knowledge of Tine Yahaya, who is her mother.
The testimony of PW2 seeks to provide a firsthand account of the events that occurred on the day of the incident, with Sale’s violent actions leading to the death of her father, Yahaya
Cross examination of PW2
PW2 witnessed the incident and confirmed that her father, Yahaya, had died. She acknowledged not having physical evidence to prove her father’s death. PW2 stated that her statement to the police accurately reflected what happened.
The cross-examiner, Nwuche, inquired about the cause of her father’s death, and she mentioned that he was attacked with a machete, and a dagger was used on his neck. Nwuche pointed out that in her police statement, she did not mention the use of a dagger on her father. She insisted that her statement to the police was accurate. She explained that she was inside her house when she heard a gunshot and came out with her stepmother to see the situation. According to PW2, she saw Ardo Sale Musa with another man near her father’s dead body, and this was consistent with what she had told the police. Nwuche suggested that she might be lying to the court, and she maintained that she was telling the truth. The cross-examiner questioned whether she had actually witnessed her father’s death since her testimony was inconsistent. She firmly stated that Sale had killed her father. Nwuche raised doubts about her claim that she had seen Sale attacking her father and pointed out the differences in her court testimony and her police statement. PW2 insisted that her current testimony matched her police statement, emphasizing that she saw Sale attack her father. Nwuche inquired about the distance between her hiding place and where Sale was attacking her father. She provided a general distance. She confirmed her love for her father and explained that they had hidden and cried when they realized what was happening. The cross-examiner questioned her silence during the incident and suggested that she couldn’t be sure it was Sale. She maintained that she was certain it was him. Nwuche implied that she might not have been fully awake when she saw Sale, but she continued to assert her recognition of him. PW2 stated that she would recognize Sale even in the dark because she grew up with him, and they were close. Nwuche suggested that she might have been mistaken about Sale’s identity, and she disagreed, stating that she was sure it was him.
In summary, the cross-examination of PW2 aimed to challenge the consistency and credibility of her testimony regarding the identity of the person responsible for her father’s death. She remained steadfast in her claim that Ardo Sale Musa was the one who killed her father.
The evidence in chief PW3: a police officer serving in the Imo State Police Command attached to the State CID: On November 6, 2020, the witness received a call from the O/C Homicide, SP Anyaogu, to accompany DCP Baba Musa and his team to Mgbirichi, where Alhaji Haruna Yahaya had been murdered. Upon arrival at the scene, they found the DPO of Umuagwu and his team already present. They observed the deceased’s body lying in front of his house. A photographer was called to take photographs of the deceased, and a pathologist, Dr. Ibeaja, conducted a post-mortem examination. After the examination, the family requested the body for burial, and the DCP allowed it. The police conducted a search at the crime scene and recovered seven expended AK-47 ammunition shells, which were registered as evidence. Preliminary investigation was conducted, and the deceased’s family mentioned Ardo Sale as the prime suspect. Efforts to track and arrest Sale began, and he was located in Ogbaru, Anambra State. During an attempted arrest, Sale escaped, but his motorcycle was recovered and registered as evidence. The witness and his team made further attempts to track and arrest Sale, as he was reportedly threatening the deceased’s family. In November 2021, personnel from Force CID informed the DCP that they had arrested Sale in Gombe State. Sale was brought back to Owerri, where he provided a statement and was detained. The investigation revealed that the deceased, Haruna Yahaya, was the chairman of Meyetti Ala, Imo State. He had been attacked on November 6, 2020, with an AK-47 rifle and a machete. Sale had attempted to murder him previously in 2019, and they had not settled their dispute before the deceased’s murder. There was an existing animosity between Sale and the deceased, and they were related, with Sale having lived with the deceased in Mgbirichi.
Sale claimed in his statement that he was receiving medical treatment in Port Harcourt on the day of the incident. During the presentation of evidence, the witness tendered seven expended AK-47 ammunition shells and a motorcycle found at the scene. The defense objected to the tendering of the motorcycle. The court admitted the motorcycle as an exhibit. PW3’s evidence-in-chief seeks to provide a detailed account of the investigative process following the murder of Haruna Yahaya and the subsequent arrest and detention of the prime suspect, Sale
Cross examination of PW3:
The defense sought to clarify the witness’s involvement in the case. He confirmed that he was one of the investigating police officers (IPO) working on the case. The witness was asked to explain what he meant by being involved in the case “at the beginning,” to which he responded that he was assigned to the case from the initial stage. The defense raised questions about the photographic evidence and post-mortem examination. The witness clarified that he had contacted a photographer and the pathologist by phone, and they had met later to conduct their respective tasks.
The defense questioned the process of tracking the Defendant’s phone and whether there was evidence of tracking through specific phone carriers. The witness maintained that the tracking analysis was attached to the case file. The defense suggested that the witness had not known the Defendant prior to tracking him. The witness affirmed that he had never encountered the Defendant before the incident. There was a discussion about the motorcycle recovery. The defense claimed that the witness had not presented any evidence to show that the motorcycle belonged to the Defendant. The witness argued that the Defendant admitted ownership in his statement. The defense argued that the Defendant had pleaded an alibi and questioned the witness about whether there was any evidence placing the Defendant at the scene of the crime. The witness explained that two eyewitnesses testified to seeing the Defendant on the day of the incident.
The defense inquired about any fundamental right application and a medical report attached to a motion. The witness denied awareness of such documentation during his investigation. The defense challenged the sufficiency of evidence to sustain the charges of conspiracy and murder. The witness defended the evidence, referring to the investigation report. The defense pointed out that the Defendant’s statement was taken without the presence of a lawyer, implying a violation of the Defendant’s rights. The witness stated that it was the Defendant’s choice to have a lawyer, and he was not responsible for providing one.
The cross-examination aimed to challenge various aspects of the witness’s investigation and the sufficiency of the evidence presented in the case. The defense sought to highlight potential flaws in the investigative process and the rights of the Defendant during the proceedings.
PW4, Dr. Ibeaja Okechukwu, is a medical practitioner who specializes in pathology and heads the accident and emergency department at Imo State Specialist Hospital in Owerri. He provided the following evidence during his examination in chief:
Dr. Ibeaja is trained as a pathologist and conducts post-mortem examinations and autopsies. He is called upon for these procedures in cases of sudden and unnatural deaths, as well as suspected homicides. He generates medical documents after each post-mortem or autopsy to record his procedure and findings. When working with the Nigerian Police Force (NPF), he uses a coroner ordinance form to document his findings and sends it back to the police. On November 6, 2020, Inspector Goodluck Egbegbu contacted Dr. Ibeaja about a murder case at the Mgbirichi Fulani settlement. He was informed that a post-mortem was required, specifically for Alhaji Haruna, and he was asked to accompany the police team to the scene of the crime. Dr. Ibeaja requested that the deceased’s body be brought to the hospital morgue for the post-mortem. However, due to religious considerations (Islamic culture), he agreed to go to the crime scene to conduct the procedure. At the scene, Dr. Ibeaja conducted the post-mortem examination on a young fair man. He observed multiple deep penetrating lacerations, including injuries to the head, face, neck, and abdomen, as well as partial amputations of both hands with fractures to the ulna and radius bones. Dr. Ibeaja concluded that the cause of death was profuse internal hemorrhage resulting from an assault. He determined that the injuries were the result of an assault and not self-inflicted or accidental. He issued a report with his findings and conclusions, which was documented on Form D. Dr. Ibeaja sought to tender the autopsy report in evidence, and there was no objection from the defense. The court admitted the autopsy report as Exhibit 4.
Cross examination of PW4:
During the cross-examination of PW4, Dr. Ibeaja Okechukwu, the defense raised several points and questions regarding the autopsy report and his professional conduct. The defense questioned the authenticity of Dr. Ibeaja’s qualifications and his practice at Imo State Specialist Hospital. He suggested that there was no evidence to show that the doctor practiced at that hospital. Dr. Ibeaja clarified that he had been practicing as a medical practitioner for about 13 years and that his qualifications and practice were verifiable. The defense attorney pointed out that there was no indication on the autopsy report that it came from Imo State Specialist Hospital, and he raised concerns about the absence of a serial number, reference number, folder number, and department details on the report.
Dr. Ibeaja explained that the report was not a property of the hospital but rather a document generated by the police. He detailed the process of using a coroner ordinance form, which is sent to the pathologist for the post-mortem procedure. Afterward, the completed Form D is sent back to the police, while other documents are meant for the pathologist’s record. The defense attorney pointed out discrepancies in the autopsy report, including an error in the date of receiving the corpse. Dr. Ibeaja acknowledged the error and explained that the post-mortem was conducted on the same date as the death. The defense attorney questioned the absence of specific details, such as the number of stages, procedures, and sections mentioned in the autopsy report. Dr. Ibeaja emphasized that the procedures were outlined in the report and did not need to be enumerated.
The defense also raised concerns about the lack of photographs depicting each procedure. Dr. Ibeaja clarified that photographs were taken at his discretion, and he asserted that the cause of death was clearly stated in the report. Dr. Ibeaja refuted the defense’s assertion that the autopsy could not be carried out in the village or darkness, explaining that he had conducted autopsies in various environments. The defense questioned the authenticity of the autopsy and suggested it was a forged document. Dr. Ibeaja maintained that the autopsy was genuine and conducted in accordance with professional ethics. The defense aimed to cast doubt on the authenticity and professionalism of the autopsy report, while Dr. Ibeaja defended the legitimacy of his work and the report
PW5, Inspector Victor Adejoh, is a police photographer who was called to the scene on 6-11-2020 to document the incident in Mgbirichi. He used a digital camera to take photographs of the deceased, who had been attacked and had injuries. After taking the photographs, he printed them and provided the photographs along with a certificate to the IPO (Inspector Goodluck Egbegbu) of the case.
The certificate contains information about the photographs taken on 6-11-2020, and it was presented as evidence in the trial. The defense raised objections about the accuracy of the date and the brightness of the photographs, but the court admitted both the photographs and the certificate as exhibits.
In summary, PW5’s evidence establishes the documentation of the scene through photographs, which were presented in court as evidence. The prosecution used these photographs to support their case in the trial.
Cross examination of PW5:
PW5, Inspector Victor Adejoh, was unable to provide specific details about the time he took the photographs of the deceased at the scene of the incident. He also mentioned that determining the complexion of the corpse was not part of his duty as a police photographer. When asked about the distance between his residence and the location where he took the photographs, he stated that he was not good at estimating distances.
The defense suggested that the distance was not significant, and PW5 acknowledged that he did not observe the time. As a result, the cross-examination of PW5 focused on his inability to provide specific details regarding the time, the complexion of the deceased, and the distance between his residence and the scene of the incident. The defense then concluded their questioning of PW5.
The exhibits tendered and admitted by the court are;
Exhibit 1A -1G – 7 pieces of expended AK47 ammunition shell.
Exhibit 2 – Kingston motorcycle, red in colour
Exhibit 3 – Statement of the Defendant
Exhibit 4- Autopsy report of the deceased issued by PW4.
Exhibit 5 – Certificate of Compliance pursuant to Section 84 of Evidence.
Exhibit 6(a(b)(c)and (d) – pictures of the body of the deceased.
DEFENCE EVIDENCE
DW1 (Defense Witness 1) provided his account of being abducted and detained for approximately five days by unknown individuals. He mentioned that he was taken from Gombe State to an unidentified house, where he was not provided with proper food and water. After a search by the police and subsequent legal proceedings, he was taken to Abuja and later to State CID in Owerri. DW1 claimed that he was repeatedly questioned by the police about the death of Yahaya Bello, but he maintained that he had no knowledge of the circumstances of Bello’s death. He mentioned that he was at the Port Harcourt Teaching Hospital while the incident occurred. DW1 also provided a hospital card from the Port Harcourt Teaching Hospital as evidence of his medical condition and treatment during the time when he claimed he was not present during the incident. However, the defense did not present the original hospital card, as it was reportedly lost during an attack on their house, but presented a certified copy. DW1 also claimed that the original certified copy of the medical report and the medical doctor who certified the document were unavailable due to unforeseen circumstances. The defense sought to tender these documents, including a motion filed by his lawyer.
However, the court admitted the photocopy of the hospital card but rejected the photocopies of the certified true copy of court documents, as only the original certified true copies were considered admissible. The court also accepted the motion filed by DW1’s lawyer as evidence. In summary, DW1 provided an account of his detention and reiterated his lack of knowledge about the incident. The defense presented some documents, and some were accepted as evidence by the court while others were not.
During the cross-examination of DW1 (Defense Witness 1):
The prosecutor established that DW1 was familiar with the deceased, Alhaji Haruna Yahaya, and that they were cousins. It was confirmed that DW1 knew members of the deceased’s family and their location in Mgbirichi. DW1 acknowledged knowing PW1, who was the widow of the deceased, as well as PW2. The deceased was identified as the chairman of the Miyetti Allah branch in Imo and a cattle rearer. DW1 denied living in Mgbirichi in 2020 and explained that he had never lived there. The prosecutor questioned DW1 about his previous legal issues, mentioning an incident where he had been charged in a magistrate court in Ugwuta, where he was accused of conspiring to murder Alhaji Haruna Yahaya. DW1 denied this accusation and claimed that he had not owed the deceased any money. It was revealed that DW1 was living in Oba, Anambra State before his arrest in Gombe. The prosecutor implied that DW1 had fled to Gombe to escape arrest for the alleged murder of Alhaji Haruna. However, DW1 explained that he had left due to a riot in the area that resulted in the destruction of his property. DW1 confirmed being from Sokoto State but stated that he had not visited the family of the deceased. The prosecutor argued that the medical card from the University of Port Harcourt (Exhibit 8) was an afterthought meant to mislead the court. DW1 denied this claim.
The prosecutor asserted that DW1 and his group had murdered Alhaji Haruna Yahaya on November 6, 2020, by attacking him with machetes. DW1 continued to deny any involvement in the alleged murder. The cross-examination aimed to establish DW1’s connection to the deceased and the circumstances of his arrest while challenging his testimony about not being involved in the incident.
DW2
During the evidence-in-chief of DW2 (Defense Witness 2),
The witness, Musa Mohammed, resides in Mile One, Port Harcourt. Musa Mohammed identified the Defendant, who is his friend. The Defendant contacted Musa Mohammed on November 4, 2020, while the Defendant was in Onitsha, and expressed a desire to visit Musa in Port Harcourt. The Defendant visited Musa’s house in Port Harcourt, and he requested to stay with Musa for four days. Musa explained that during those four days, the Defendant would go to the hospital while he would attend to his clothing business. Although the Defendant visited a hospital during his stay with Musa, Musa himself did not accompany the Defendant to the hospital. After the four days, the Defendant left on November 7, 2020.
DW2’s testimony suggests that the Defendant had an alibi, as he was with DW2 in Port Harcourt during the days surrounding the alleged incident
During the cross-examination of DW2 (Defense Witness 2), the
DW2 claimed not to be aware of the Defendant’s arrest, the charge against him, or the reason for his court appearance. DW2 stated that the Defendant did not invite or involve him in making a statement to the police regarding the case. The cross-examiner inquired about DW2’s residence in Port Harcourt, which was Mile One. The cross-examiner suggested that DW2 lied to the court when testifying that the Defendant stayed in his house for four days and left on November 7, 2020. DW2 insisted that the Defendant stayed with him for four days while he conducted his business, and the Defendant visited the hospital each morning.
The cross-examiner questioned DW2 about who prompted him to come to court as a witness, and he mentioned that it was the Defendant’s brother who, through a woman, contacted him to testify regarding whether the Defendant stayed at his house.
When asked for the name of the brother, DW2 mentioned that a woman had conveyed the instructions from the Defendant’s brother to him. The cross-examiner insinuated that DW2 was not a truthful witness and suggested that he was procured to testify, to which DW2 maintained that he was telling the truth.
The cross-examination primarily focused on challenging the credibility of DW2’s testimony and his knowledge of the case.
The Defendant tendered two exhibits:
Exhibit 7- photocopy of certified true copy of hospital card.
Exhibit 8- certified true copy of medical report.
ADDRESS OF COUNSEL
At the close of evidence, the parties filed and exchanged written address.
DEFENCE ADDRESS:
The Defendant, in their final written address, has raised several key issues for determination in the case. These issues include:
- Whether the prosecution has failed to prove the ingredients or some of the ingredients of the offenses of conspiracy and murder charged.
- Whether the evidence adduced by the prosecution has been thoroughly discredited by cross-examination.
- Whether the evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal could convict on it.
- Whether there are material contradictions and inconsistencies in the evidence of the prosecution, which entitle the Defendant to the benefit of the doubt created by these inconsistencies.
- Whether the Defendant raised his defense of alibi at the earliest opportunity when confronted by the police with the commission of the offenses and whether the prosecution’s failure to investigate the facts and circumstances related to the alibi renders it unrebutted.
The Defendant argues that the prosecution has failed to prove the elements of conspiracy and murder, citing relevant case law to support their position. They also claim that the evidence presented by the prosecution has been discredited through cross-examination, rendering it unreliable. Furthermore, the Defendant contends that there are significant contradictions and inconsistencies in the prosecution’s evidence, which should entitle them to the benefit of the doubt.
In terms of the defense of alibi, the Defendant asserts that they raised it at the earliest opportunity and that the prosecution’s failure to investigate their whereabouts supports their alibi. The Defendant concludes by urging the court to discharge and acquit them, dismissing the prosecution’s case.
In summary, the Defendant’s final written address emphasizes the failure of the prosecution to prove the case, discrediting the evidence, highlighting contradictions, and underscoring the defense of alibi to request acquittal.
PROSECUTION ADDRESS:
In the final written address of the prosecuting counsel, the prosecution has raised three issues for consideration by the court:
- Whether the prosecution has established the offences of conspiracy and murder against the Defendant.
- Whether a plea of alibi will avail the Defendant in the circumstances of this case.
- Whether there are material contradictions and inconsistencies in the prosecution’s case that can create doubt in favor of the Defendant.
Issue A – Conspiracy and Murder: The prosecution argues that the Defendant’s involvement in the conspiracy to commit murder is supported by the unchallenged testimony of the eyewitness, the pathologist’s report, and various exhibits. They stress that conspiracy can be inferred from circumstantial evidence.
Issue A – Murder: To establish a case of murder, the prosecution must prove three elements: that the deceased has died, that the death was caused by the Defendant’s act, and that the act was intentional with knowledge of its consequences. The prosecution presents evidence from eyewitnesses, the pathologist’s report, and the Defendant’s own admission to prove these elements.
Issue B – Alibi: The Defendant raised a defense of alibi, claiming he was in a hospital in Port Harcourt during the murder. However, the prosecution argues that this alibi is weak and unsupported by credible evidence. The Defendant failed to provide necessary details, and the medical documents were not properly certified. The prosecution also points out that the Defendant did not express surprise when he admitted to knowing about the deceased’s death.
Issue C – Contradictions and Inconsistencies: The defense alleged material contradictions and inconsistencies in the prosecution’s evidence without specifying them. The prosecution asserts that there are no such contradictions or inconsistencies and urges the court to disregard this claim.
In conclusion, the prosecuting counsel maintains that the prosecution has successfully established the charges against the Defendant beyond a reasonable doubt, arguing for a conviction. They emphasize the strength of the evidence presented and the weakness of the Defendant’s alibi and contradictory claims
DEFENCE REPLY ADDRESS:
In response to the prosecution’s final written address, the Defendant refutes several paragraphs and provides counterarguments:
The Defendant disputes various paragraphs from the Prosecution’s final written address, contending that these paragraphs contain fabrications, falsehoods, and concocted allegations designed to elicit undeserved sympathy. The Defendant specifically refutes the allegations of conspiracy and murder, asserting that they were in Port Harcourt, Rivers State, for a medical follow-up on the alleged date. The Defendant also claims not to know the individuals mentioned in the prosecution’s case.
The Defendant challenges the credibility of the witnesses, asserting that they saw two unknown individuals, while the mentioned names were fabrications. The Defendant disputes an eyewitness account provided by PW-2, arguing that the witness was procured by the prosecution and that her statements contradicted each other.
The Defendant denies allegations in paragraph 2.02, highlighting inconsistencies in the statements provided by witnesses and the coroner’s form used as evidence. The Defendant questions the reliability of the coroner’s form in paragraph 2.03, arguing that PW-4’s testimony impeached its contents.
The Defendant argues that the prosecution failed to establish conspiracy due to a lack of evidence. The Defendant disputes allegations in paragraph 2.05, stating that the prosecution did not prove the inchoate or rudimentary nature of the conspiracy.
The Defendant denies the claims in paragraph 3.02, arguing that the evidence of the prosecution’s witnesses was contradictory. The Defendant disputes hearsay evidence presented in paragraph 3.03, asserting that hearsay evidence is generally not admissible.
The Defendant denies the allegations in paragraph 3.04, stating that the prosecution’s assumption about the Defendant’s awareness of the alleged death cannot be used to ground a conviction. The Defendant disputes allegations in paragraphs 3.05 and 3.06, stating that the Defendant did not admit to any of the charges or evidence. The Defendant refutes allegations in paragraph 3.07, arguing that the prosecution failed to prove the essential elements of the murder charge.
The Defendant denies the claims in paragraphs 3.08 and 3.09, arguing that the prosecution’s witness, PW-4, did not prove his case and the autopsy report was unreliable. The Defendant disputes the use of photographs as evidence in paragraphs 3.10 and 3.11, arguing that they did not meet the requirements of the Evidence Act. The Defendant refutes the allegations in paragraphs 3.12 to 3.17, arguing that the prosecution’s witnesses provided contradictory accounts and that the autopsy report contradicted the witnesses. The Defendant disputes allegations in paragraphs 3.19 to 3.25, stating that the prosecution’s positions are misconceived and that the coroner’s ordinance form contradicted itself.
The Defendant refutes the allegations in paragraphs 4.01 to 4.11, claiming that the statements were improperly recorded and that the IPO did not investigate the alibi. The Defendant disputes allegations in paragraph 5.01 to 5.05, arguing that the prosecution’s evidence is contradictory and inconsistent. The Defendant denies the allegations in paragraph 5.06, claiming that the prosecution is resorting to blackmail due to the failure to prove the case beyond reasonable doubt. The Defendant alleges abuse of power and persecution.
In conclusion, the Defendant urges the court to carefully review the prosecution’s evidence, which is claimed to contain numerous contradictions and factual inaccuracies, and requests that the case be dismissed, and the Defendant acquitted.
RESOLUTION OF MATTER:
The Defendant was charged with the offence of conspiracy and murder. The main issue is whether the Prosecution has proved her allegation against the Defendant as to sustain a conviction. Proving her case means proving all the elements or ingredients of the offence of conspiracy and murder. These warrants showing or establishing beyond reasonable doubt that the Defendant, DW1, was involved in the alleged murder of Alhaji Haruna Yahaya on November 6, 2020, in Mgbirichi, Imo State.
In the case of ADEKUNLE V. THE STATE (2006) 43 WRN 1 AT 24, the Supreme Court reiterated the position of the law that: “from a long line of the decisions of this court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove (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 also AKPAN V. THE STATE (1994) 25A LRCN 137 AT 146; UGURU V STATE (2002) 9 NWLR (PT 771) 90 AT 106; GINA V STATE (1996) 4 NWLR (PT. 443) 375; NWAEZE V STATE (1996) 2 NWLR (PT. 428) 1; OGBA V STATE (1992) 2 NWLR (PT. 222) 164
These three conditions must co-exist and when one of them is absent or tainted with doubt, the charge cannot be said to be proved. The onus to prove these is on the prosecution and does not shift. The court should not speculate on evidence but decide on the evidence presented before it. See also UBANTA VS. COP [2000] NWLR (PT 643) 115 @ 128; EMEDO VS. STATE [2002] NWLR (PT 789) 196 @ 204; ANI VS. STATE [2009] VOL. 6 (PT II) MJSC 1; IGABELE V STATE (2005) NCC 59 AT 63.
The court’s decision in NNADI V. STATE (2016) LPELR-41032(CA) establishes the principle that the prosecution is not obligated to call numerous witnesses to prove a charge against an accused person. The court refers to previous case law, particularly Bello Shurumo v. The State (2010) 12 SCNJ (pt. 1) 47, which emphasized that a single credible eyewitness’s testimony can suffice to establish a case beyond a reasonable doubt. The key takeaway from the decision is that the prosecution does not have to call every person connected to the scene of a crime as a witness. Once individuals who can testify about the actual commission of the crime and other relevant elements have given their accounts, the principle of proof beyond a reasonable doubt is satisfied. The court highlights that the crucial factor is the credibility and cogency of the sole eyewitness’s testimony. Credible evidence is described as evidence that is worthy of belief and credit, and it should be neutral, reasonable, and probable considering the overall circumstances.
The cause of death as described by the two eye witnesses (PW1 and PW2) appears to tally with the description of the cause of death provided by Dr. Ibeaja (PW4). Both the eye witnesses and the doctor indicate that the cause of death was related to an assault. The eye witnesses, PW1 and PW2, mentioned that the deceased was attacked with a machete and other weapons. This description of the events strongly suggests that the cause of death was a result of injuries sustained during the assault. Dr. Ibeaja (PW4), who conducted the autopsy, concluded that the cause of death was “profuse internal hemorrhage secondary to assault.” This medical assessment aligns with the eye witnesses’ descriptions of the deceased being attacked and injured. In summary, the descriptions of the cause of death provided by both the eye witnesses and the medical doctor are consistent, indicating that the deceased died due to injuries sustained during an assault. It is however noted that medical evidence is not essential in establishing cause of death in situation where the deceased was attacked with a lethal weapon and died instantly. Where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased. See BEN V. STATE (2006) 16 NWLR (PT. 1006) 582
The PW5 tendered pictures which depicted the state of the deceased consequent upon the attack on him. It could be inferred that he died as a result of the attack
The question of whether the picture was one of the deceased and whether the autopsy was conducted was on the deceased will not arise in the circumstances of this case. In PETTY OFFICER UDOETTE JOSEPH v. THE NIGERIAN NAVY (2020) LPELR-49692(CA), the court stated:
“The learned respondent counsel is equally correct in contending that the prosecutions failure to identify the knife used in killing the deceased, and the failure to identify the corpse of the deceased, in the face of strong evidence confirming that appellant stabbed the deceased and died, are of no moment. The recent case of Sale vs. The State (supra) @ 242, to the effect that: “If there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased the evidence of the person said to have identified the corpse is not indispensable. Indeed, a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased had been killed in effect the need for anyone to identify the body of the deceased to a doctor is sine qua non in all murder cases. It is also trite law that medical evidence, though desirable in establishing the cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court… The position, therefore, it seems to me is that the principle that failure to call the people, who allegedly identified the corpse of the deceased. is fatal to the case of the prosecution, though good law, is narrow in its application. It is restricted to situations where the identity of the body examined by the doctor is shrouded in doubt and there is “no other evidence to clear the doubt”. Settled the issue. See also Achukwu vs. The State (supra). “The law is that where there are facts to infer that the corpse examined by the doctor was that of the deceased, then, the evidence of the person who identified it is not indispensable: Enewoh v. State (1990) 4 NWLR (Pt. 145) 469; Afosi v. State. It flows that the evidence of Cpl. Charles Edeh, who identified the deceased’s corpse, was not a desideratum in considering the identity of the deceased. After all, in our criminal jurisprudence, Court has the license of the law to convict an accused person without the corpus delicti, the body of the crime: Ubani v. State; Edoho v. State; Jua v. State. These effectively deflate all the undeserving strictures which the Appellant passes on Exhibit B. I therefore, hold that Exhibit B is quite relevant even as it solidifies the vital point that is, was the bullet wound from the Appellant’s gun, which damaged the deceased’s necks, which approximately led to his cardio respiratory failure and ultimate death.” The fact that appellant was shown to have stabbed the deceased with a knife, and that act of the appellant led to the death of the deceased, having been proved to the hilt, it does not lie in the mouth of the appellant to argue that the judgment be vitiated for reasons stated in their submissions.” Per BARKA, JCA (Pp. 27-29, paras. C-F)
The identity of the person upon who the autopsy was conducted and the picture or photograph was taken is not in doubt or shrouded in doubt. The Prosecution has shown that deceased died.
Was the death of the deceased caused by the accused? If the case of the PW1 and PW2 is merely that they saw the Defendant at the scene of crime, it will not be sufficient to link the Defendant with the murder of the deceased because being found at the scene of crime, without more, does not make one a criminal. The mere presence of accused at the scene of crime does not, as a matter of law, render the person so present guilty of the crime. See ORJI VS. STATE (2008) VOL. 6 MJSC 168 AT 189 – 190, EBUINDOR V. STATE CITATION: (2016) LPELR-41504(CA)PER MBABA, J.C.A. (P. 39, PARAS. C-E
Nevertheless, there is no law requiring that an accused must be seen at the scene of crime before such accused can be fixed with the commission of the crime. Indeed, the case-law has sanctioned three ways of proving commission of a crime, i.e. (a) Eye witness evidence, (b) confessional evidence, or (c) circumstantial evidence. See AKINLABI OLAOLUWA V. THE STATE (2018) LPELR-46436(CA)
The Defendant (DW1) has presented an alibi, claiming that he was hospitalized in Port Harcourt during the alleged murder. If the Defendant can establish the credibility of this alibi with supporting medical records, it could raise reasonable doubt about his involvement in the crime. An alibi defence is a defence which is aimed at persuading the Court that the accused person could not possibly be at the scene of the crime as he somewhere else, most, probably, there were people who could testify that the time of the alleged crime and on the date of the crime too, he was not at the scene of the crime. See HAPPY KINGSLEY IDEMUDIA V. THE STATE (2011) LPELR-4280(CA) PER SANUSI, JCA (PP. 10-11, PARAS. E-A)
A valid plea of alibi must specify:
- The specific place or places where the accused claims to have been.
- The people in whose company the accused claims to have been.
- Any relevant details about what transpired at the stated time and place.
Both particulars (a) and (b) must be met for the plea of alibi to stand, while particular (c) is optional. The accused must not only claim to have been elsewhere but must also provide an explanation of where they were and who could confirm their presence at that other place at the time of the alleged offense. Three conditions must be fulfilled by the appellant for the court to consider the plea of alibi:
- The appellant must provide specific details of their whereabouts on the date in question.
- The information provided must be capable of investigation by the police.
- The appellant must bring the defense of alibi to the attention of the police in a timely manner.
See CYRACUS EZEAMA V. THE STATE (2014) LPELR-22504(CA), NSOFOR V. STATE (2002) 10 NWLR (PT. 775) 274 AT 294 – 295, EBRE V. STATE (2001) 12 NWLR (PT. 728) 617 AT 635 PARAS G – H AND ALMA V. STATE (2009) 4 MJSC (PT. 2) 147
The Defendant presented a medical card (Exhibit 7) and a medical report (Exhibit 8) to support his alibi. DW2, a friend of the Defendant, testified that the Defendant stayed at his house in Port Harcourt for four days
Now the statement of Defendant to the Police was made on the 3-11-2021 and the DW2 testified on the 9th day of March 2023.
In the statement to the police the Defendant stated:
“I know Zoro as also our family brother of same Fulani who stays in Elele Rivers State where Alhaji Hussaini Haruna was also staying with him. it was Zoro that called me on phone on the day of the incident of killing, Alhaji Haruna Yahaya while I was in Port-Harcourt to inform me that our people are accusing both of us that we killed Alhaji Yahaya. I was in the Hospital at Port Harcourt up to five to six days before Zoro.
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I cannot know nor remember the place and name of the hospital at Port Harcourt respectively that I was admitted before and after the killing of Yahaya
After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. See LEKAN ORISAN V. PEOPLE OF LAGOS STATE (2019) LPELR-46509(CA). In AYIERE AYIERE GODSGIFT V. THE STATE (2016) LPELR-40540(SC), it is stated:
“Where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-beliefs or plea of that defence, and which are completely devoid of material facts worthy of investigation, the police in the circumstance would least be expected to embark on a wild goose chase, all in the name of investigation. In such a situation the Court would have nothing before it to consider by way of alibi: ISONG AKPAN UDOEBRE & ORS v. THE STATE (2001) 8 SCM 127; ABUBAKAR DAN v. STATE (1995) 1 NCC 24 at 46.” Per GALADIMA ,JSC (P. 27, paras. A-D)
The medical card and medical report card exhibit 7 and 8 appear to have emanated from the River State Teaching Hospital. I think River State University Teaching Hospital is not an obscure and secluded place. The exhibit 7 was issued on 01-06-2020 while exhibit 8 was issued on 23rd June, 2020. Over 5 months before the alleged murder of the deceased. There is no evidence placing the Defendant specifically and particularly at the Rivers State Teaching Hospital that day of incident.
The DW2 evidence came over two years after the alleged incidence. The name of the DW2 was not mentioned in the Statement of the Defendant-DW1.
Cross examination of DW2
Q You came from PH this morning?
A: Yes
Q: You are aware that police arrested him
A: I m not aware
Q: You know he is being tried for murder of Alahji Yahaya
A: I am not aware
Q: You will also not know why he is in court
A: I do not know
Q: When Police arrested him and investigated the matter, he did not invite you
A: He did not invite me
Q: That is to say that you did not make statement to the police in respect of this case
A: I did not
Q: Where do you live in Port Harcourt?
A: Mile One
Q: Will it surprise you to hear that the Defendant while given evidence did not mention his staying in your house
A: I will not be surprised
Q: You lied to the court when you said that the Defendant slept in your house for 4 days and left on the 7th of November
A: It is not possible for me to lie to the court.
Q: I put it to you that the Defendant never stayed in your house for 4 days and left on 7th November 2020
A: He was with me for four days and every morning I go for my own business and the Defendant goes to the hospital
Q: What time of the morning do you leave for your business?
A: Around 8.30am
Q: evidence you gave in court who told, you to come and gave evidence
A: It was the brother to the Defendant that ask me to come to court an testify in respect of whether he slept in his house or not. If there is any other thing I do not know.
Q: What is the name of the brother?
A: There was a woman through who he got the information. The woman said that his brother instructed her to contact me
Q: You do not know anything about this case you were procured to come and give evidence
A: All I saying is that he came to my house, if there are any other thing I do not know
Q: You are not a witness of truth
A: It is not possible for me to lie
The evidence of the DW2 is nor reliable. I do not believe same. In ZURUMBA AUTA V. THE STATE (2018) LPELR-44490(CA) the Court stated:
“The defence of alibi which seeks to establish the fact that the accused/appellant was “elsewhere” at the material times of the incident for which he was alleged he was part, must be raised at the earliest opportunity when the suspect is confronted with a charge so as to enable the party making the allegation or charge to investigate the alibi put up by the accused and ascertain the truth or otherwise of the claim or alibi. See: Ozaki Vs. State (1990) 1 NWLR (Pt. 124) 92. The appellant has claimed that the alibi put up by him before the Police in his statement at the Station, where he was taken was destroyed by the police. How are we to know? The burden duty, in any case, is for him (appellant) to prove the alibi relied on by him by leading evidence to that effect. See: Etim Etim Udo V. State (2015) LPELR – 25767 (CA). If he fails in his duty to prove the alibi, the prosecution has nothing to disprove hence the prosecution on whom lies the general burden of proof at the guilt of the accused person is taken as having established his case beyond and reasonable doubt. See Gachi V. State (1965) NWLR 333.” Per HUSSAINI ,JCA (Pp. 37-38, para. A-A)
Further on this, is the fact that the Defendant acknowledged that one Zoro called him same day to inform him that he is being accused of the murder. The Defendant did not come forward to exonerate himself and prove whatever alibi he might have.
The Defendant also accepted in his Statement that he abandoned his motor Cycle in the course of attempt by the Police to apprehend him and yet he did not come forward and make his case of alibi. These situations afforded the Defendant the opportunity to protest his innocence and plead his alibi.
I hold that the Defendant did not raise alibi promptly at the earliest opportunity and attempt to raise same in the course of trial through the DW2 is lifeless.
Having held that the defence of alibi does not avail the Defendant, we now turn to the evidence of the PW1 and PW2. By their evidence they can be described as eye witnesses. I am aware that the identity of the Defendant as the person who committed the offence must be so certain that it leaves no room for doubt.
The evidence of eye witness, is one of the most dependable ways of proving criminal offences, inclusive of this offence, murder. It is only evidence of confession or admission of commission of crime that is preferred to it in the hierarchy of potency of evidence in our criminal justice system so long as it is credible and sufficient to establish the second ingredient of murder. See ALHAJI MU’AZU ALI V. THE STATE (2011) LPELR-3728(CA) PER OGBUINYA, JCA (P. 65, PARAS. B-E). To this effect where an eye witness omits to mention at the earliest opportunity the name(s) of person(s) seen committing an offence, a judge must be careful in accepting his evidence given later, and implicating the accused person. See CHARLES ONYEMAOBI IRRECHUKWU V. THE STATE (2015) LPELR-25608(CA)
It is evident that the PW1 and PW2 remained unequivocal on who they saw and what they observed. The Police investigation Police officer PW3 maintained that the name of the Defendant was given to him on arrival at the crime scene.
The Defendant talking about the PW1 In his statement stated:
“I know Tine Yahaya for a long time since childhood before she was married and moved to Alhaji Haruna Yahaya place which my family was also living there in Fulani Village, Mgbirichi -Ohaji before I left for Arabic School, Gombe State
The following were elicited during cross examination of PW1
Q: Who applied dagger on your husband
A: It is the Defendant I know him very well
Q: You saw the Defendant and it at 5.30am
A: Yes
Q: At that time, it was very dark
A: It was not all that dark and somebody you know you will always recognize him
Q: Tell the court the distance from which you are standing and saw the Defendant and where the Defendant was standing.
A: The distance is from where the court is sitting mad were the man with babariga at the entrance of the court hall is standing.
Court: Distance was observed by the court and both counsel in the matter.
Q: Because it was dark you will not know if the distance was farther from what you are telling the court.
A: It was not all that dark; that is the distance.
Q: When you said you saw the Defendant as somebody you said you know you did not say anything to him.
A: I said nothing to him
Q: The Defendant you said you saw did not even say anything to you
A: Yes
Q: You did not say anything to him or him to you because it is possible it was not Defendant you saw.
A: I knew very well it is the Defendant. I knew him even when he was very small. And I am older than him very well.
Q: I will be correct to say that the person you saw merely resembled the Defendant
A: It was the Defendant.
Q: It was Defendant you saw because the Defendant has misunderstanding with your husband.
A: I saw him with my two naked eyes and there is nothing wrong with my two naked eyes.
Q: The Fulani village is a community of persons
A: Where we are living, we are not much
Under cross examination the PW2
Q: To know whether it was Sale or not you did not call him
A: Sale did not talk to me and I did not talk to Sale but I know Sale.
Q: You said you wake up from sleep and rushed out, you did not wash your eyes.
A: Even at midnight if I see Sale I will know, Sale even that time darkness is already receding.
Q: That person you saw was not Sale, you just woke up from sleep and you did not call Sale.
A: I know it is Sale. I grew in Sale’s hands; if I see his back, I know it is Sale. Any where I see him, I know him. It was him.
The Defendant is a person well known by the parties. The previous contacts between the Defendant and the eyewitnesses are in evidence.
There doesn’t appear to be any significant contradiction between the evidence of PW1 and PW2 regarding what they saw or observed during the incident. Both witnesses consistently testified that they saw Sale attacking Yahaya, and they reported witnessing the use of a gun and a machete or dagger in the assault. They also mentioned seeking cover due to the gunfire.
While the cross-examination aimed to challenge the witnesses’ statements and the accuracy of their observations, both PW1 and PW2 maintained their original accounts and did not appear to provide conflicting information regarding what they witnessed during the incident. They consistently identified Sale as the assailant who attacked their father.
The Defendant talked about discrepancies in the evidence of the prosecution It is settled that contradiction that will be fatal must be substantial. Minor contradictions that do not affect the credibility of witnesses, as in this case, may not be fatal. The contradiction must relate to the substance of the matter -see UCHE V. STATE (2015) LPELR-249693 (SC), SHAIBU V. STATE (2017) LPELR-42100(SC). In THE STATE V. MUSA DANJUMA (1997) LPELR-SC.124/96 (1997) 5 NWLR (PT.506) 512 it is stated:
“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 should not be convicted on the basis of such unreliable evidence. “PER MOHAMMED, J.S.C. (Pp. 13-14, paras. G-A)
I cannot see any contradictions or inconsistencies in the evidence of the Prosecution.
Ordinarily, the mere act of an accused person running away or attempting to escape after an incident does not, by itself, constitute proof of their guilt. Fleeing to avoid arrest can have innocent explanations, and it should not be automatically taken as evidence of wrongdoing. See VICTOR ESSIEN VICTOR V. THE STATE (2009) LPELR-8151(CA). There is need for more substantial evidence to establish guilt and caution taken against relying solely on an accused person’s attempt to escape as proof of their wrongdoing. However, in certain circumstances where the fleeing accused is naturally expected to be at the vanguard of seeking justice for the victim, choosing to flee has more to it. The Defendant has not offered any innocent explanation to his fleeing despite being aware of the death, and his been a prime suspect decided to stay away only to be arrested at Gombe.
Though motive is not a sine qua non to the conviction of murder, it may be relevant and admissible in a case of murder. In GODWIN OKON ITA & ANOR v. THE STATE (2013) LPELR-21392(CA), the court referencing Adetola vs. Rex (1960) WRNLR 5 at 7, Ishola vs. The State (1978) 2 NSCC 499, R v. Bond (1906) 2 K.B. 389 as per Kennedy J., at pp.400 and 40, Lord Atkinson in R. vs. Ball (1911) A.C. 47 (H.L.) at page 68, highlights that evidence of motive is not only relevant but also admissible in a murder trial under Section 9 of the Evidence Act. It emphasizes that in cases where facts related to the motive are closely intertwined with the history of the crime, they should not be excluded from consideration as they form part of the relevant circumstances. Additionally, the court refers to the admissibility of evidence showing prior assaults, menaces, or the relationship between the accused and the deceased as explanatory elements of the alleged crime. Such evidence can help establish the accused’s malicious intent and the fact that they committed the homicide.
There is evidence that the Defendant had attempted to murder the deceased previously in 2019, and they had not settled their dispute before the deceased’s murder. There was an existing animosity between Defendant and the deceased, and they were related, with Sale having lived with the deceased in Mgbirichi. The Defendant admitted in his statement of the lingering animosity between him and the deceased.
This evidence in chief of the PW1 establishes that the Defendant, Sale, had a history of conflict with the victim, Yahaya, and that the dispute over money was a possible motive for the crime.
Throughout the trial the evidence of motive for mischief was not debunked by the defence.
Whether 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. This third element can be proved either positively where there is proof of the declared intent of the accused or inferentially from his overt act. See IMO DENIS AKPAN OBOT v. THE STATE (2019) LPELR-48172(CA). In UZAIFA ABDULLAHI v. THE STATE (2020) LPELR-50739(CA), it is stated:
“How then is intention proved? A man’s intention is usually very difficult if not impossible to prove, for even the devil as crafty as it is, has not been able to know or read a man’s intention. A man’s intention, invariably can only be inferred from his conduct and surrounding circumstances within which he acts. It is from the manifestation of his conduct that his intention can be ascertained. This statement has the backing of a litany of judicial decisions. See for example AREBAMEN VS. THE STATE (1972) 7 NSCC 194, 200; KOLO VS. COMMISSIONER OF POLICE (2017) LPELR – 42577 (SC). This is why the law presumes that a man intends the natural and probable consequence of his act and is deemed to know the natural consequence of his action. See GARBA & ORS. VS. THE STATE (2000) 6 NWLR (PT. 661) 379; STATE VS. JOHN (2013) LPELR – 20590 (SC). This is in turn founded on the maxim that the guilty mind instigates the guilty act or flows into the guilty act. The act of a person is proof of his mens rea.” Per WAMBAI ,JCA (Pp. 32-33, paras. D-C)
The evidence of the PW4 who tendered the medical report and the PW5 who tendered the photograph taken of the deceased point to the irresistible conclusion that whosoever attacked him intended death or grievous bodily harm.
I agree with the Prosecution that the testimony of PW1 and PW2 was also supported by Exhibits 6(a) (b) (c) and (d) which are the pictures of the deceased showing marks of violence on the body of the deceased, which were tendered by PW5, Inspector Victor Adejoh, a Police photographer
Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt. The proof as required herein is by the provision of Section 135 of the Evidence Act, 2011, proof beyond reasonable doubt as opposed to proof beyond all doubt or every shadow of doubt. This is to say that the proof put forward by the prosecution must overshadow the presumption of innocence as guaranteed the accused person. See SUNDAY UDOR v. THE STATE (2011) LPELR-45733(CA). The Prosecution has done so in this case.
I find the Defendant guilty as charged. Once a person has been found guilty of having committed the offence of murder, it is mandatory that he be sentenced to death. No other form of punishment can be inflicted. I accordingly sentence the Defendant to death. He shall be hanged on the neck till he be dead.
I so hold.
I.M.Njaka
Judge
19-10-2023
Appearance:
UF Ejimonye PSC for the State
IO Nwuche For the Defendant