GODWIN ALAO v. THE STATE

GODWIN ALAO v. THE STATE
 
final
In The Court of Appeal
Benin Judicial Division
On Thursday, the 10th day of March, 2011
Suit No: CA/B/336C/2008
 
Before Their Lordships
 
AMIRU SANUSI    ……. Justice, Court of Appeal
GEORGE OLADEINDE SHOREMI    ……. Justice, Court of Appeal
CHIOMA EGONDU NWOSU-IHEME    ……. Justice, Court of Appeal
    
 
 Between
GODWIN ALAO    -Appellant
            
 
      And
                   
THE STATE    -Respondent
        
 

 


COUNSEL:
                            
Olayiwola Afolabi Esq.    -For the Appellant
 
Mrs. A.E. Edozie Esq. CSC Ministry of Justice, Edo State with Mrs. J.O. Ugbodega PSC    -For the Respondent

 

JUDGMENT:
          

AMIRU SANUSI, J.C.A.: (Delivering the Leading Judgment): This appeal emanates from the judgment of the High Court of Justice of Edo State ("The lower court" for short) delivered by Edigin J, on the 19th of June, 2007.

At the conclusion of the trial, His Lordship convicted the present appellant (the 2nd Accused, at the lower court) and his younger brother Omokhefe Alao) of the offence of murder and sentenced the present appellant to death. The 1st accused person or convict being a minor, was dealt with under Section 12 of the Children and Young Persons Law and detained at the pleasure of the Governor of Edo State, pursuant to Section 40(6) of the Criminal Procedure Law of Edo State.

 

   The facts of the case which gave rise to this appeal are simple and straightforward. Prior to the 14th day of February 2005 when the offence was committed, the brothers of the deceased person on one part and the appellant and his brothers on the other part, had some misunderstanding which ultimately led to the first prosecution witness, one Ovie Julius and his brothers including the deceased person (one Edwin Asaba Ovie) to report the dispute at the Sabongida-Ora Police Station. The said misunderstanding later generated into a serious fracas leading to the murder of the deceased by the 1st accused person and the appellant herein. During the trial of the two accused persons at the lower court, the prosecution called four witnesses and tendered four exhibits to prove the two count charge of conspiracy and murder, contrary to Sections 516 and 319  (1)  respectively of the Criminal code cap 43 Vol. II Laws of Bendel State of Nigeria, 1976, applicable in Edo State of Nigeria. Each of the two accused persons testified for his own defence and called witnesses in their defence at the lower court. At the conclusion of the trial, the two accused persons were found guilty as charged and the present appellant (2nd accused) was convicted of murder and sentenced to death. Dissatisfied with the decision of the lower court, he appealed to this court vide his Notice of Appeal dated 4th July, 2007 containing two grounds of appeal. However later with leave of this court granted on 29/6/2009, the appellant filed two additional grounds of appeal jerking up the total grounds of appeal to four.

 

   The two grounds of appeal contained in the original Notice of Appeal and the other two grounds of appeal contained in the Additional Grounds of Appeal are reproduced hereunder along with their particulars for ease of reference.

 

GROUND OF APPEAL IN THE ORIGINAL NOTICE OF APPEAL

GROUND ONE

"1. The learned trial judge erred in law when it (sic) picked and choose from the contradictory evidence of the prosecution witnesses to convict the 2nd accused person.

PARTICULARS OF ERROR

(d) In criminal matters the cases of the prosecution is taken as a whole.

(e) It is not the duty of the trial judge to pick and choose which evidence of the prosecution witnesses to believe or to disbelieve.

(f)  PWI and PW4 contradicted themselves materials on how the deceased was murdered.

 

GROUND TWO

2. The learned trial Judge erred in law when it (sic) failed to rely on the evidence of an independent witness but relied on the evidences of relations of the deceased to convict the 2nd accused person for murder.

 

PARTICULARS OF ERROR

(b) PW1 and PW4 whose evidence was relied mostly by the trial court to convict the accused person were relations of the deceased who had their purpose to serve.

(c)The independent witness' evidence was not discredited under cross-examination''.

 

ADDITIONAL GROUNDS OF APPEAL

3. The learned trial judge erred in law and caused grave serious miscarriage of justice when he convicted the appellant of the offence of murder when the totality of the case of the prosecution was completely filled with doubts and contradiction.

 

PARTICULARS OF ERROR

(i) The PW1 whom the trial court also believed also admitted making statement to the police on 16/2/05 and in that statement he never mentioned that it was the appellant that held the deceased in order for the brother of the appellant to stab him.

(ii) PW3 whom the court believed his evidence made statement in exhibit A when the case was very fresh in his memory and he never mentioned that the appellant held the deceased for the said Omokhefe Alao to stab him.

(iii) The said evidence of PW3 in open court to the effect that it was the appellant that held the deceased before the said Omokhefe Alao stab him was contradictory to exhibit A which he made at the earliest opportunity.

(iv) The matter was investigated by the police and the police recommended only the brother of the appellant to be charged to court for murder having regards to the available evidence on record.

(v) All the above evidence which favoured the appellant was completely abandoned or ignored by the trial court.

4. The learned trial judge erred in law when he ignored and misinterpreted the defence of the appellant as regards the evidence of DW3 (a Police officer).

 

PARTICULARS OF ERRORS

(i) The case of the appellant was strictly based on the fact that he never stabs (sic) the deceased and he never held the deceased for his brother to stab the deceased.

(ii) The evidence of DW3 (a police-officer) called to support the defence of the appellant was misinterpreted to be an alibi by the court.

(iii)  The evidence of DW3 (a police officer) shows that the appellant never held the deceased for his brother to stab the deceased and this was ignored by the court on the basis of alibi and his evidence was not considered in relation to the defence of the appellant."

 

   In compliance with the rules and practice, applicable to this penultimate court, the parties in this appeal filed and exchanged briefs of argument. The appellant's brief of argument dated 23/10/2008 was deemed properly filed and served on 29/6/2009, while the Respondent's Brief of Argument dated and filed on 12/10/2010 following an extension of time granted to it on 4/10/2010 wherein twelve days period was granted to it within which to file same. The appellant on 13/10/2010 also filed an Appellant's Reply Brief also dated same day.

The appellant in his Brief of Argument postulated two issues for the determination of the appeal out of the four grounds of appeal. The said two issues are:-

"(1) Having regards to the criminal nature of the offence of murder and the only punishment stipulated herein, whether the learned trial judge right when he convicted the appellant of the offence of murder despite the overwhelming evidence of doubt and contradiction in the case of the Prosecution.

(2) Having regards to the constitutional duty imposed on the learned trial judge to consider the defence of the appellant, whether the learned trial judge was right when he interpreted the defence of the appellant and failed to consider the real defence of the appellant."

 

   In the Respondent's Brief of Arguments, three issues for the determination of the appeal were proposed. The issues it encapsulated are as follows: -

"(a) Whether having regard to the evidence led, the offence of murder was not proved beyond reasonable doubt to justify conviction.

(b) Whether there were doubts or material contradictions in the evidence of the prosecution witnesses.

(c)Whether, the learned trial judge did not consider the defence available to the Appellant."

 

   Now, before I embark on the treatment of the appeal, My Lords, please permit me to pause a little and reflect on an observation or could it be an objection featuring on page one of the Appellant's Reply Brief on the three issues for determination proposed in the Respondent's Brief of argument. The learned Appellant's counsel submitted in the said Appellant's Reply Brief, that it was wrong for the Respondent to formulate three issues for determination while he (the appellant)' merely raised two issues for determination from the Additional grounds of appeal as the respondent failed to answer all the material points contained in his (appellant's brief). While urging us to strike out the first issue for determination raised by the Respondent supra, the learned appellant's counsel submitted that the respondent did not cross appeal the only option opened to its counsel is either to adopt the issues formulated by him (the appellant) or to recast them without departing from the complaints raised by the grounds. Failure to do either of the two options he submitted that Issue one raised by the respondent was incompetent and should be struck out. On these submissions, he placed reliance on the decided authorities of D.A. (NIG) AIEP V. OLUWADARE (2007) 7 NWLR (PT.1033) 336 @ 355; NEPA V. OLAGUNJU (2005) 3 NWLR (PT.913) 602 @ 620-621 PARA H-D. As I stated above the appellant filed two grounds of appeal in the original notice of appeal and also with leave of this court filed two additional grounds of appeal. He also raised two issues for determination without stating in his brief of argument, to which each of the ground or grounds of appeal the issues were tied or married. The learned respondent's counsel did not do better either, in that. This court had in multiplicity of decided authorities too numerous to be mentioned here, admonished learned counsel for parties for not marrying the issues for determination they proposed or raised to the ground or grounds of appeal filed by either the appellant or respondents. The two learned counsel to the parties in this appeal cannot escape being admonished too for failing to marry the issues for determinations they raised to any of the ground or grounds of appeal filed by the appellant herein.

 

   It needs to be pointed out here, that an issue for determination is a combination of facts and circumstances. It combines the Law on a particular point which, when decided one way or the other, affects the fate of the appeal. See ONIFADE V. OLAYIWOLA (1990) 7 NIYLR (Pt. 161) 130.

 

   Similarly, an issue for determination in an appeal is substantial question of law or of fact or both arising from the grounds of appeal filed in the appeal which when resolved one way or the other will affect the result of the appeal. See: ADMINISTRATOR GENERAL DELTA STATE V. OGOGO (2006) 2 NWLR (Pt. 964) 366.

   It is settled law that issues raised from grounds of appeal are raised for a purpose which said purpose is mainly to enable parties narrow the issues in contention in the grounds of appeal so filed in the interest of accuracy, clarity and brevity. For that reason, they (i.e. the issues) must per force be related to the grounds of r appeal and if they are not so related, they become incompetent and thus liable to be struck out. See UMARU GALADIMA & 2 ORS. V. MOHAMMADU MASHAYABO (1994) 6 NWLR (Pt.350) 377 @ 384.

   Again, it is also trite that issues for determination must of necessity, be framed and tailored to the issues in controversy and should not be at large.

They must be limited or circumscribed and fall within the scope of the grounds of appeal. See AJA V. OKORO (1991) 7 NWLR (Pt.203) 260 @ 273; AKPAN V. THE STATE (1992) 6 NWLR (PT.245) 439; NWOSU V. IMO STATE ENVIRONMENT SANITATION AUTH0RITY (1990) 2 NIYLR (PT.135) 688.

 

   Having said so, I think it will be pertinent at this stage to look at the grounds of appeal particularly Ground No. 3 in the additional grounds which can ordinarily be assumed as the ground on which the first issue in the appellant's brief was encapsulated. Although, the appellant claimed that he raised his issues on his two Additional Grounds of Appeal, a close look at the ground shows that ground is more or less the same with the first ground of appeal in his original notice of appeal save that the particulars in the original grounds are more elaborate. Both of them however relate to the alleged issue of contradiction in the evidence led by the prosecution.

 

   Although as I said earlier, the appellant did not marry his issues for determination to any of the ground or grounds of appeal, his first issue can comfortably be said to have flowed from his first ground of appeal in the original notice and also from the third issue which is part of the two Additional Grounds of Appeal.

Going to the grouse of the appellant on the first issue raised in the Respondent's brief of argument and looking at the said issue reproduced above, it clearly shows that the respondent queries whether the evidence led by the prosecution would amount to proof beyond reasonable doubt as could lead to conviction of the offence of murder. On one hand, the appellant in those grounds of appeal and their particulars is saying that the contradictions which had allegedly featured in the evidence led by the prosecution is short of proof beyond reasonable doubt. This stance is also what he had presented in his arguments or submissions on the first issue for determination. To my mind therefore, both the first and second issues for determination in the respondent's brief which were argued together are not only relevant to the first issue for determination raised by the appellant and they also relate to both the first ground of appeal in the Appellant's original notice of appeal as well as to the third ground of appeal in the additional ground of appeal. It is worthy of note, that the appellant nowhere indicted that he was abandoning any of the grounds of appeal in his original notice of appeal and the respondent also did not challenge their competence for being outrageous.

 

   It is apposite to state the principle of law, that the purport of a respondent's brief is to support the judgment appealed against by showing clearly in his brief that the contention of the appellant as to the grounds of errors identified by the appellant are infact meritless. The respondent had really no power to go outside the grounds of appeal while formulating his own issues for determination formulated by the respondent in an appeal must relate to the grounds of appeal filed by the appellant. However, for a respondent to validly raise any issue not related to the grounds of appeal filed by the appellant, he must either file a cross appeal or respondent's notice. See the case MOMODU V. MOMOH (1991) I NWLR (PT. 169) 608; OSSAI V. WALANAH (2006) 4 NWLR (PT.969) 208; UTB (NIG) LTD V. AJAGBULE (2006) 2 NWLR (PT. 965) 447; OMO V. JSC, DELTA STATE (2000) 12 NWLR (PT. 682) 444.   Another cardinal rule of formulation of issues for Determination of appeal is that parties cannot formulate issues more than the number of grounds of appeal filed in the appeal or cross appeal. See NYAH V. NOAH (2007) 4 NWLR (PT. 1024) 320. In the instant, case the respondent merely raised three issues for determination out of the total four issues for determination filed by the appellant. Therefore, the appellant's complaint that the respondent filed more issues for determination than those he raised is of no moment since he did not indicate that he was abandoning any of the four issues even though such could be deemed to have been abandoned.

 

   In summation, the entire complaint by the appellant on the competence of the issues raised by the respondent in his brief of argument is meritless since the said issue relates to some of the grounds of appeal filed by the appellant. To my mind therefore, the said issue is competent valid and relevant. I therefore decline to strike it out, I will now proceed to consider and determine the appeal.

 

   After a careful perusal of the entire issues raised by the two parties, I am convinced that the first issue in the appellant's brief is similar and is well captured by the first two issues for determination in the respondent's brief. I shall first consider them together and later consider the second issue in the appellant's brief which is also similar to the third issue for determination raised by the respondent even though differently couched. I shall however in the consideration of the appeal, be guided by the issues raised in the appellant's brief of argument which, in my view, have also subsumed the three issues for determination raised by the respondent in the latter's brief.

 

   On the first issue for determination, the appellant's counsel submitted that in a murder case, the prosecution has the burden to prove the guilt of the accused person beyond reasonable doubt and that such burden does not shift.

He cited the judgments of this court in the cases of Mr. Patience Ayo v. The State (unreported) case No.CA/B/156/2003 delivered on 9/7/2008 and Ochuko Tegwonor v. The State No.CA/B/33/2005 delivered on 28/6/2008 and Lori vs. State (1980) S-11 SC 81 at 95/96. The learned appellant's counsel also submitted that in order to obtain conviction in a murder case, the prosecution is bound to prove the following three ingredients of the offence which included

(a) that the death of a human being took place

(b) that such death was caused by the accused

(c) that the act of the accused was intentional or with knowledge that death would be the probable consequence of his act.

See the case of Adava v. State (2006) 9 NWLR (Pt. 984) 152 @ 167 paras F – H; 171 Paras B-C. .The learned counsel added that the above three conditions must co-exist and where one is missing or taunted with doubt, the charge of murder is not proved. See Obade v. State (1991) 6 NWLR (Pt.198) 430; Aigworeghian v. State (2004) 3 NWLR (PL 560) 367 @ 373.

 

   The learned appellant's counsel has though conceded that death of human being was proved to have been caused, he however submitted that it had not been established that such death was caused by the act of the appellant.

Expatiating on this, the learned appellant's counsel made copious reference to the testimonies of PW3 and PW1 at the lower court and the former's statement to the police. According to him, the PW3 told the lower court that it was the appellant and one Ele that held the deceased before the 1st accused stabbed the deceased victim as shown on pages 66-67 of the record.

He said Pw3 did not however admit that he make such revelation in his statement to the police on 29/3/2005. With regard to the evidence of PW1, the appellant's counsel argued also that PW1 also testified in court that it was the appellant and one Ele who held the deceased before the 1st accused stabbed the deceased as shown on pages 62 – 66 of the record, but under cross-examination he admitted never saying so in his statement to the police.

   To the learned appellant's counsel, these pieces of evidence amounted to contradictions, yet the learned trial Judge ignored them to the disfavour of the appellant. He cited the case of Ugbeneyovwe v. State (2005) ALL FWLR (Pt. 245) 1006 @ 1032; Nwosu v. State (1986) NSCC (Pt.II) 1029 @ 1038. He further argued that where a set of facts is capable of two interpretations, the trial court should go for such interpretation which is favourable to the accused person only. See lfejirika v. State (1999) 3 NWLR (Pt. 593) 79; Adeyemi v. State (1991) 4 LRCN 363 @ 138; Udosen v. State (2007) ALL FWLR (Pt.356) 669 @ 669.

   The learned appellant's counsel while urging this court to discharge and acquit his client, also submitted that a glance at the evidence adduced by the prosecution clearly revealed that the appellant ought not charged with the offence of murder as the police had earlier advised the DPP's office as shown in the record of appeal and he therefore urged this court to take judicial notice of such investigative report contained in the case file which courts have right to suo motu do so. See JTA Inter Ltd. v. LMB Plc (2005) 9 NWLR (Pt.930) 274.

   In a final submission by the learned counsel for the appellant on this issue, it was argued that the standard of proof in criminal trial is one beyond reasonable doubt and where any doubt exists, the same must be resolved in favour of the accused person adding that the evidence adduced by the prosecution in the case is short of such standard of proof hence the appellant should be acquitted. See the case of Abdullahi v. State (2008) AU FWLR (Pt.432) [email protected]

 

   A careful perusal of the respondent's brief of argument clearly shows that its issues nos. 1 and 2 answered or responded to the arguments proffered in Issue one in the appellant's brief of argument which had incidentally been argued together in the respondent's brief too. In the first place, the respondent submitted that it led evidence to prove the offence of murder against the appellant beyond reasonable doubt at the lower court as required of them by Section 138 of the Evidence Act, cap 112, LFN of 1990 adding that they did prove the offence against him beyond reasonable doubt and not beyond every iota of doubt. It cited and relied on the cases of Esangbedo v. State (1989) NWLR (Pt. 113) 57 or (1989) SCNJ 140; Idemudiu v. State (1999) 69 LRCN 1043 @ 1063 and Igabele v. State (2000) NWLR (Pt. 795) 100 @ 127. He also submits that to prove a case beyond reasonable doubt does not mean or imply that the case against the accused must be proved beyond all shreds of doubt. See Akinyemi v. State (2001) 2 ACLR 32 @ 44.

 

   The learned counsel for the respondent in further submission endorsed the appellant's counsel's list of the three ingredients to be proved by prosecutions in order to obtain conviction in a charge of murder under Section 319(1) of the Criminal Code. He also relied on the authorities of Edwin Ogba vs. State (1992) 2 NWLR (Pt. 222) 109; Kalu v. The State (1993) 6 NWLR (Pt. 279) 59 @ 90 and Okeke v. State (1992) 2 NWLR (Pt.246) @ 273.

The learned respondent's counsel submitted that they have proved beyond any doubt that the victim Edwin Asaba Ovie died as a result of stab wounds on his chest vide the evidence given by PWs 1, 2, 3 and 4 more particularly the evidence of PW2, the medical doctor who performed post mortem examination on his body. He further argued that it was the act of the Appellant and his younger brother, the 1st accused that caused the death of the deceased due to the wounds inflicted on his chest adding that PW1, PW3 and PW4 gave eye witness account of all that had happened on the fateful day.

Another submission made by the learned respondent's counsel is to the effect that by virtue of the provisions of section 7(c) of the criminal Code, every person who aids another in the commission of an offence is deemed to have taken part in committing the offence and is to be guilty and may also be charged with the actual offence. He relied on the authorities of Enwoenye v. The Queen (1955) 15 WACA 1 @ 3; The State v. Ededey (1972) 15 C 140; Iyaro v. state (1988) I NWLR (Pt 69) 256 @ 263. He added that where two or more persons as in this instant case, form a common intention to prosecute an unlawful act in conjunction with another, and in the prosecution of such act, an offence was committed of such a nature, the commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. See State v. Oladimeji (2003) Vol.109 LRCN 1298 @ 1308; Fatai Atani v. State (1993) 7 NWLR (Pt. 303) 113 R 1 & 2.

   Furthermore submitted the learned respondent's counsel, witnesses called by the prosecution were consistent with and confirmatory of each other and not contradictory and even when asked about his failure to state what he testified in court in his earlier statement to the police, PW1 explained under cross-examination that he was not himself on that day because the incidence was still very fresh in his memory. On the issue of credibility of witnesses, it was submitted that such was solely within the province of the trial court and as an appellate court, this court has no duty to reverse the findings of fact of a trial court unless they are shown to be perverse which was not the case here. See Muffau Bakare v. State (1987) 11 NWLR (Pt. 52) 575 @ 580; Military Governor of Western Region v. Afolabi Laruba (1974) 10 SC 227 @ 233. He finally urged that his two issues for determination be resolved in his favour.

 

   Both learned counsels to the parties are ad idem on the ingredients of the offence of murder under Section 319 of the Criminal Code which the prosecutions are required to establish in order to obtain conviction. Even at the peril of being repetitive, I shall below state the elements that the law made trite, as those to be proved in charge of murder. These elements are thus -

(i) that the victim died;

(ii) that the death of the deceased resulted from the act(s) of the accused person or persons; and

(iii) that the act of the accused was intended or done with the knowledge that death or grievous bodily harm was the probable consequence.

See Akinfe v. State (1958) 3 NWLR (Pt.85) 729; Oneh v. State (1985) 3 NWLR (Pt.12) 236; Oguonze v. State (1998) 5 NWLR (Pt.557) 521; State v. Mabaruji (2002) 2 CLRN 107.

Perhaps, it is apt to stress here, that the above listed elements must co-exist and where one of them is missing or taunted with some doubt(s) then the charge is not proved. See Ochemmnaye v. State (supra). Now reflecting on the evidence adduced in the instant case, there is no any iota of doubt that the prosecution had sufficiently proved the death of the deceased victim and that is beyond any dispute. The testimony of PW2, the medical doctor who performed autopsy on the deceased person's body had this to say on pages 66-67 of the record:

"the autopsy was subsequently done, it shows that there was a penetrating wound on the left side of the chest precisely around the 5th + O ribs. The wound was deep enough to have affected the heart tissue leading to severe bleeding and death. The cause of death in my opinion was a stale wound penetrating."

 

   From the above piece of evidence, there is no gain saying that death of the deceased was established, as well as the fact that what caused the deceased victim were the wounds he sustained on the left side of the chest around the ribs which said wound was deep enough to have affected the heart tissue leading to severe loss of blood, ultimately resulting to death of the victim. This piece of evidence of PW2 was uncontroverted or unshaken during cross examination. However, in murder cases, it is not enough for the prosecution to simply prove that a human being died or that death of a human being was caused. It is more than that. The prosecution is required also to prove beyond reasonable doubt, that it was the act of the accused, in this case the appellant that had actually caused the death of the deceased and not merely that it could have caused the death of the latter if there is any possibility, for instance, that the deceased died of a different cause or act.

This is because if there is the possibility showing that the deceased died from cause(s) other than the act of the accused, then the prosecution has not established the case against the accused person. See Audu v. State (2003) 7 NWLR (Pt.820) 576; (Iguru v. State (2002) 9 NWLR (Pt.771) 90; R. v. Owe (1961) 2 SCNLR 354; R v. Nwokocha (1949) 12 WACA 453.

 

   In fact it is trite and is also settled law, that whenever it is alleged that death has resulted from the act of a person, a causal link between the death and the act of the accused/appellant must be established and proved beyond reasonable doubt too, that it was the act of the accused/appellant that caused the death of the victim. See Sowemimo v. State (2004) LRCN 4141 @ 4157 Para P-U; Ofolete v. The State (2003) FWLR (Pt.12) 208 @ 269 RE-F. And where there is any intervening factor as could create some doubts on the actual cause of the death of the deceased, such doubts created must be resolved in favour of the accused/appellant. See also Oforlete v. State (supra). In the instant case, the prosecution led credible evidence through PWs 1 and 3 to show that it was the second accused who held the deceased for the 1st accused to stab him twice on the chest on the fateful day.

 

   Also PW2, the medical doctor's testimony corroborated their testimonies that the deceased died of the wound he sustained on his chest region near the heart which led to his death. No evidence whatsoever was led by the defence to suggest that there was any intervening factor that could have led to the death of the deceased besides the chest injuries he received from the stabbing by the 1st accused person. The evidence adduced by the prosecution at the lower court had therefore clearly established that it was the injury inflicted on the chest of the deceased by the 1st accused person and the appellant herein that caused the death of the deceased. In my view, what is material and is relevant too, is that it was the said injury on the chest of the deceased that ultimately led to his death of the victim as rightly found by the trial judge. I am therefore unable to see any justifiable reason to disagree with the trial judge's conclusion in that regard, since such conclusion is supported or based on the unchallenged testimonies of the prosecution witnesses especially PWs 1, 2 and 3. I therefore have no reason to disagree with or disturb the finding of the learned trial judge on that, since he had the opportunity of watching and observing the demeanour of the witnesses when he found as follows:-

"…. the evidence of the witnesses was not materially discredited under cross-examination to render them incapable of belief. They were eye witnesses of the act of the 1st and 2nd accused person in which the 2nd accused person held the deceased down for the 1st accused to stab. They gave convincing account of what happened from the time they got to the scene and what they saw. Their evidence is direct cogent and convincing.

They all spoke with assurance and such confidence that I find it difficult not to believe their evidence."

 

   The above finding of fact, to my mind, has not been shown by the appellant to be perverse. From the evidence adduced in the case, there is in my view, no dispute whatsoever, that the 1st accused stabbed the deceased after the Appellant herein, held him (the deceased), PWs 1 and 3 who were eye witnesses to the event testified in that regard and their testimonies were not contradicted or assailed or controverted at all. There is equally no doubt that the deceased victim died as a result of the act of the 1st accused and the appellant herein.

 

   The next point to consider is whether the act of the appellant and the 1st accused was intentional or with knowledge that death or grievous bodily harm was the probable consequence. It is always the gravity of the act/assault (say on vital part of the body) that could lead to conviction of either murder or manslaughter. As I posited above, evidence abounds in this instant case that the appellant and the lst accused jointly caused grievous bodily harm on the deceased by dealing stabs on his (deceased's) chest which is certainly a vital part of his body.

 

   To establish a charge of murder it must not only be proved that the act of the accused/person could have caused or led to the death, but that it actually did. See R v. William Oledima 6 WACA 202. I am mindful of the fact that it is difficult, if not impossible, to prove common intention. However, I feel its existence can be inferred from the surrounding circumstances disclosed in a given case. See Nwokurala v. Stare (supra).

   It is a matter of common knowledge, that if one deals stab or stabs with a sharp object on vulnerable part of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See: Garba v. The State (2000) 4 SCNJ 315. It is trite, that where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each of the participant did in furtherance of the commission of the crime is immaterial. The mere fact that the common intention manifesting in the execution of the common object, is enough to render each of the accused persons in the group guilty of the offence. See Nwankwoala v. State (2006) 14 NWLR (Pt. 1000) 663; Ikemson v. State (1989) 3 NWLR (Pt.110) 455; Oyekhire v. State (2001) 15 NIYLR (Pt.1001) 157. In the instant case, PW1 in his testimony in court stated on pages 65 lines 1 to 9 of the record of appeal as follows:-

"As we were running, 2nd accused person and Elle Moses held Asaba (deceased) down. Suddenly 1st accused person brought out a dagger and stabbed Asaba twice on the chest and stomach and fell down. When Friday Ojeagba saw that the mission has been completed he took John Adebe and drove away. We rushed Asaba to the General Hospital, Sabongida-Ora, on our way to Hospital, Asaba died." Similarly, the PW3, Emmanuel Josiah testified in court in line with the above testimony of PW1, supra, when he stated at page 66 lines 21 to 25 of the record as follows:

"I was holding Julius Ovie not to fight. The 2nd accused person gripped Asaba (deceased) on the neck from the back then Elle Moses held Asaba's hands. Then 1st accused person picked a dagger and stabbed him on his chest."

Also, the PW4 in his testimony stated thus:-

"Elle Moses and 2nd accused person held Asaba and 1st accused person came from an uncompleted building and stabbed Asaba twice beneath his breast…."

And during rigorous cross examination by the defence' this witness remained adamant, rigid and resolute by maintaining his earlier stance and said on page 71 lines I -3 as below:

"It is correct to say that it was the 2nd accused person that held the deceased for the 1st accused person to stab…."

As I said supra, all these pieces of evidence by these witnesses were neither assailed nor shaken during cross-examination by the defence.

 

   Again it was part of the submission of the learned counsel for the appellant that there was contradiction in the testimony of PW1 in that in his testimony in court he stated that it was the appellant and one Elle who held the deceased before the 1st accused person stabbed the deceased. He argued that he did not say so in his statement recorded by the police. To the learned appellant's counsel, that amounted to a contradiction, since such piece of evidence was not so stated to the police. Similarly, added the learned appellant's counsel, PW3 also in his testimony in court equally stated that the appellant and one Elle Moses held the deceased for the, 1st accused to stab the former. He also argued that the fact that he did not make such revelation in his statement earlier recorded by the police, such, according to the learned counsel, also amounted to contradiction. With due deference to the learned appellant's counsel, to my mind, the word "contradiction," "discrepancy" or inconsistency" in evidence of a witness generally connotes the act of reversing oneself or changing a course from what he stood for earlier. It is a deviation or retraction of what one had earlier said. See lke v. Ofokoja (1992) 9 NWLR (Pt. 263) 42; Odibe v. Azege (1991) 7 NWLR (Pt.200) 724: Dawaki General Enterprises Ltd. & Anors. v. Amafco Enterprises Ltd. & Ors (1999) 3 NWLR (Pt. 594) 224. In the instant case, the learned appellant's counsel admitted rightly too, that none of the two witnesses mentioned above made a Statement regarding the holding of the deceased by the appellant for the 1st, accused to stab the former. Where then is the contradiction since no mention of that in whatever form was made by them in their respective statements to the police? A contradiction can only arise where an earlier remark or statement was made different from or conflicting the one made later. This is not the case here. On that piece of evidence, the witnesses therefore neither contradicted themselves nor contradict one another. Even if such amounted to contradiction, it is settled law that a contradiction in the evidence of the prosecution that will be fatal to the prosecution's case is not a minor or immaterial contradiction which merely scratches the surface of an inconsequential or innocuous point. It is even noted by me, that PW1 even when cross-examined on his failure to state in his statement to the police what he told the court on the issue of holding the deceased by the appellant, he explained by saying that he was not himself on the day because the incidences was still fresh in his memory. I think we should not disregard the fact that human beings differ in their nature likewise their memories. That is part of the law of nature. As I said supra, I do not even regard as a contradiction or inconsistency as the learned counsel for the appellant harped upon with regard to the failure of PWs 1 and Pw3 to state that in their earlier statements to the police. Even so, the statement of PW4 clearly supported or corroborated the testimonies of PWs 1 and 3 on the point. I must emphasise here again, that it is not every discrepancy or contradiction in the evidence of the prosecution witnesses that would lead to the rejection of such evidence. It must be shown that the alleged contradictions or inconsistencies are so material and are adequate enough to cause doubts in the case of the prosecution, Onugogu v. State (1974) 1 All NLR (Pt.11) 5; Namsoh v. state (1993) 5 NWLR (Pt.244) 642 @ 649; Effia v. State (1999) 8 NWLR (Pt.613) 1. I also do not share or agree with submissions of the learned counsel for the appellant, that the present scenario is capable of bringing to the fore, two possible interpretations as being suggested by the learned appellant's counsel. The same scenario did not or could not create any gap or lacunae in the prosecution's case since even one of the witnesses clearly explained that he did not state in his statement to the police the point he mentioned in his testimony and such point was emphatically stated or covered by the testimony of PW4 which was also not contradicted or challenged by the defence. On the whole, considering the surrounding circumstance of the instant case, the evidence led by the prosecution on the point were consistent and inconsonance with each other, rather than contradictory or conflicting as being suggested by the appellant's counsel.

 

   Still on this issue, the learned appellant's counsel raised the point that the trial court ignored the advice by the police to the office of the DPP against the prosecution of the appellant. I think, I should not waste much time in considering such point here since it was neither covered by the judgment of the lower court now appealed against and even if raised in one of the grounds of appeal no issue for determination was raised on it before this court. I will only casually say that I agree with the submission of learned respondent's counsel's submission that the office of the DPP is not bound by the suggestion made by the police in the case dairy. The office of the DPP is manned by learned counsel knowledgeable in law and the Learned State Counsel in that office have such knowledge of law and the competence to decide on who should be prosecuted for what offence or who should not be prosecuted at all depending on the evidence revealed in the case dairy. The courts on the other hand, are saddled with the responsibility of considering the evidence adduced in the entire case at the trial and at the end of the proceedings decide on the guilt or otherwise of the accused/person arraigned before them. It is therefore of no moment for the appellant to raise the point here when he did not frame an issue for determination on it.

 

   Also it needs be stressed here that whether that appellant herein had held the 1st accused person to stab him or not is even immaterial. This is because as I said earlier in this judgment, where common intention among several participants in a crime is established who are jointly charged of committing such crime of it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the members of the groups of the accused person guilty of the offence by virtue of the provisions of Section 7 of the Criminal Code Act.

By the provision of Section 7(c) of Criminal Code, every person who aids another in the commission of an offence is deemed to have taken part in committing the offence and could be charged with the actual offence. See The State v. Ededey (1972) I SC 140; Iyaro v. State supra; Enwoenye vs The Queen (1955) 15 WACA [email protected] 3; Akran v. IGP (1960) 5 FSC 3; R v. Akpunonu (1942) 8 WACA 107.

 

   Thus, having duly considered the argument and submissions of learned counsel on this issue, I am convinced that the issue ought to be resolved against the appellant and in favour of the respondent. I accordingly do same.

 

   Coming to the second and last issue for determination proposed by the appellant, it is the grouse of the appellant that the learned trial judge failed to consider his defence. The appellant's learned counsel submitted that the totality of the appellant's defence was to the effect that he never stabbed the deceased or held the deceased for his brother (the 1st accused) to stab him.

He argued that a trial court must always consider the defence raised by an accused person no matter how fanciful or doubtful it may be. He cited the authorities of R v. Braimoh (1943) 9 WACA 197; Apishe & 2 Ors v. The State 0971) I All NLR 50; Takida v. The State (1968) 1 All NLR 270. He said further, that the trial court misinterpreted the evidence of PW3 in its conclusion that the evidence of DW3 amounted to evidence of alibi which was not so. He argued that DW3 never raised the issue of alibi in his testimony in court at all as he was an eye witness and he never said he saw the appellant injuring the deceased with an iron and also that PW4 during cross examination confirmed that a policeman witnessed the fight but did not pose any defence of alibi even though he emphasised that they were all in the same place. In a further submission, the learned appellant's counsel stated that the trial court misconceived the defence posed by appellant and therefore urged this court to set aside the judgment of the trial court. He cited and relied on the case of Adeiugbe v. Ologunia (2004) 6 NWLR (Pt.868) 46 @76; Onwha v. State (2002) 1 NWLR (Pt.748) 406 @ 414.

 

   Responding to the appellant's counsel' submissions on this issue, the learned respondent's counsel submitted that the trial judge had adequately addressed or considered the defence of alibi which could be deduced from the available evidence. He argued that in a trial of murder, the court is bound by law to consider all the defences raised by the evidence whether the person charged specifically put it up or not. He cited Ojo v. State (1973) 1 All NLR (Pt. II) 185; Takido v. State (supra).  Learned respondent's counsel further submitted that failure by a trial court to consider the defence(s) available or open to an accused person is only fatal where there is evidence in support of such defences in the record of the trial court as a court of law will not presume or speculate on the existence of facts not placed before it. See the case of Nwuzoke v. The state (1988) 1 NWLR (Pt.72) 529 @ 536; Ahmed v. The state (2001) 2 ACLR 131 @ 134; Annebi v. State (2005) 36 WRN 1 @ 23.

In yet another submission the learned respondent's counsel argued that the appellant's counsel merely alleged that the defences of the appellant were not considered without stating or pinpointing which of the defence(s) available to him that was not considered. He said the appellant's counsel had a duty to prove or show which aspects of his client's defence were not considered and pinpoint them on the record which if accepted by the court will establish the existence of such defences or evidence. He concluded his arguments on this issue by submitting that the learned trial judge had rightly and duly considered the only available defence opened to the appellant from the entire evidence.

Both learned counsel to the parties are at one and that is trite law too, that a trial court is always under legal obligation to consider the defence(s) advanced by an accused person or appellant no matter how stupid, improbable, unfounded or baseless they may be. In fact, the learned jurist Obaseki, JSC had this to say in Nwazike v. The State (supra) at pages 536:

"The adjudication processes in this our adversarial system of administration demands that every defence available to the accused on the evidence and facts before the court must be considered by the court. To refrain from a consideration of the defence because it is considered weak, far fetched foolish conflicting unfound (sic) and faulse is to err seriously in the discharge of one's duty as a judge.

Where there is no evidence to warrant consideration of the defence, the trial Judge has no duty to consider the defence. It's not the duty of the judge to scout round for defences where there are none and where the evidence does not support one."

 

   I am mindful of the fact that in criminal trial especially in heinous crime like murder, as is the case here a trial court is duty bound to consider all the defences raised by the evidence whether such was specifically put up or not. See Ojo v. State (supra). Even where a trial court failed to consider the defences available to an accused person, an appellate court such as this court is in a good position or on the same footing with a trial court to consider the defence or defences of an accused person or appellant provided there are facts available on the record to support the same. That notwithstanding however, the failure or omission on the part of a trial court to consider the defence open to an accused person or appellant can only be fatal to the decision of that court, if, there would be available on the record, evidence of facts in support of the alleged defence or defences. In the instant case, I have considered the testimony of the appellant herein when he testified for his defence (as 2nd accused) as well as the evidence of DW3 who raised what could appear to me as defence similar to a defence of alibi on behalf of the appellant. However, where there is no such evidence as in this instant case, the court is not allowed to speculate or to act within the realm of conjecture. See Ekpenyong v. State (1993) 5 NWLR (Pt.295) 513. It is also trite law that where an appellant alleges on appeal that certain defences available to him were not considered jettisoned, ignored or glossed over by the trial court, he has the burden to identify, pinpoint or state the facts or evidence on the record which when considered would establish or avail him of such defence. In the instant appeal the appellant failed to state which aspect of the defence(s) he raised at the trial court which were ignored or not considered by the trial court. Also there is no evidence revealed in the record available, to the appellant that the trial court omitted to consider and make foundlings on same. What perhaps resembles defence of alibi in the record was only in the testimony of DW3 when he stated under cross examination that the point where he was struggling with 2nd accused/person (appellant) was very different from the point the deceased was stabbed. It appears to me however, that the appellant did not personally raise such defence himself. That notwithstanding however, the learned trial judge in his judgment went extra mile to extravagantly and graciously address and consider such defence on page 141 of the record of appeal and arrived at a conclusion that such statement was or tantamount to a defence of alibi even though the 2nd accused (now appellant) did not raise it in the statement he made to the police at the earliest opportunity opened to him. In my view, by so doing, the learned trial judge had even over indulged the appellant for reasons I will give presently.

 

   The word "Alibi" is a latin word or expression which simply means "I was elsewhere". It simply connotes that the accused person was somewhere other than the place the prosecution alleged that he was at the time of the commission of the offence.   This therefore presupposes that it is the accused person himself who should raise it at the earliest time to enable the police investigates such claim. "Alibi' defence is aimed at convincing or persuading the trial court that the accused could not possibly be at the locus criminis but was somewhere else and that people could testify to that effect.

 

   For the defence of alibi to be relevant, the accused who raises it must at the earliest opportunity furnish the police with full details of the alibi to enable the police check or verify the details. Failures of the accused to furnish the particulars of the alibi weaken the defence. See Sowemimo v. State (2004) 11 NWLR (Pt.885) 575; Nsofor v. Stute (2002) 10 NWLR (Pt.775) 274; Onyegbu v. Stute (1991) 4 NWLR (Pt.391) 510; Iferirika v. State (1999) 3 NWLR (Pt. 593) 59; Eyisi v. State (2000) 12 SC (Pt. 1) 24; Isiekwe v. State (1999) 9 NWLR (Pt.617) 43; Njiokwueneni v. state (2001) 14 WRN 96.

Again, even where an accused person raises the defence of alibi and it is not investigated, he can still be convicted of the offence charged if there is strong and credible evidence before the court. See Nsofor v. State (supra).

 

   Thus, as I said earlier, the testimony of DW3 in this instant case having never been raised by the appellant himself, stricto sensesso, fell short of being called a valued defence of alibi from whatever perspective one looks at it. I agree with the submission of the learned counsel for the appellant that the learned trial judge misinterpreted it to be so or had misconceived it. That notwithstanding however the appellant failed to show that such misconception on the part of the trial court had occasioned any miscarriage of justice or to show the way or manner the case of the defence was prejudiced. As I said earlier the appellant had failed to mention which aspect or part of his defence was not considered by the learned trial judge.

This issue is also resolved against the appellant and in favour of the respondent herein.

Now by the provision of S.138 of the Evidence Act of 1990 (as amended) the prosecution has the burden of proof of the commission of an offence before the trial court beyond all reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.

That is to say, basically before a trial court can pass a verdict of guilt in a criminal charge, it must be satisfied beyond reasonable doubt that the accused had committed the offence charged. Therefore if the evidence adduced before a trial court is strong against an accused person/appellant as would leave only remote possibility in his favour which can be dismissed with a simple sentence "of course it is possible, but not in fact least probable" then the case is proved beyond reasonable doubt. See R v. Lawrence (1932) 11 NLR 6; Lori v. State (1980) 8-11 SC 811; Onyeakwu v. State (2000) 2 CLRN 185.

 

   I am aware and it is even settled law that it is the trial court alone that had the unique privilege of seeing, hearing and watching the demeanour of witnesses who testified before it. It is therefore, ipso facto, within its province to appraise and ascribe probative value to the evidence presented by parties before it at the trial or proceedings and to put the said evidence on an imaginary scale of justice to determine the party in whose favour the balance tilts and then makes necessary findings of facts and finally apply the relevant law to those facts and come to its logical conclusion. In the instant case I am fully convinced that the trial court had indeed exercised those functions creditably well before arriving at its conclusion to convict the appellant as charged. It had also duly evaluated the evidence adduced before resulting in its finding the appellant guilty and convicting him of same.

 

   Finding of fact made by trial court will not be interfered with by an appellate court unless special reasons justify doing so, such as where there is a miscarriage of justice arising from violation of some principle of law or procedure or where the findings are perverse. Effia v. State (supra); Ugvimbe v. State (1993) 5 NWLR (Pt.296) 660; Ogunlana v. State (1995) 5 NWLR (Pt. 395) 266. From the surrounding circumstance of this case and as an appellate court, the law does not permit me to interfere with or disturb the findings and conclusions arrived at by the trial court which I feel the trial court based such findings and conclusion on credible evidence adduced before it as would warrant or justify the conviction of the appellant of the offence charged.

 

   In conclusion therefore, and having resolved all the issues against the appellant herein, I am unable to see any merit in the instant appeal. This appeal therefore fails and is accordingly dismissed by me for being devoid of any substance. The judgment of the lower court delivered on 19th of June, 2007 in Suit No. HSO/1C/2005 convicting the appellant of the offence of murder and sentencing him to death are hereby affirmed.

 

 

GEORGE OLADEINDE SHOREMI, J.C.A.: I have the privilege of reading before now the lead judgment delivered by my learned brother Amiru sanusi JCA. I agree with his line of reasoning and the conclusion that this is devoid of merit and should be dismissed.

 

I too find no merit in this appeal, it is accordingly dismissed.

 

 

CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I have read the Judgment just delivered by my learned brother, AMIRU SANUSI, JCA in this criminal appeal. I am in complete agreement with his conclusion that the appeal be dismissed.

 

   There is no justification in interfering or disturbing the findings of fact by the trial court as there was no miscarriage of justice and more so the findings were arrived at after a thorough evaluation of evidence before the court.

The appeal is unmeritorious and devoid of substance.

 

   It ought to be dismissed. It is accordingly dismissed. The Judgment of the court below delivered on 19th of June 2007 in HSO/1C/2005 convicting the Appellant and his younger brother Omokhefe Alao of the offence of murder and sentencing the Appellant to death is hereby affirmed.