Whether once an accused person is discharged and acquitted, the co-accused must enjoy same discharge and acquittal
EKPE v. STATE
CITATION: (2021) LPELR-55930(CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON FRIDAY, NOVEMBER 12, 2021
Suit No: CA/C/155C/2020
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of Appeal
JAMES SHEHU ABIRIYI Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU Justice, Court of Appeal
IBORO EYO EKPE – Appellant(s)
THE STATE – Respondent(s)
LEADING JUDGMENT DELIVERED BY JAMES SHEHU ABIRIYI, J.C.A.
The appellant and the other accused persons forced themselves into the house of the deceased with matchets, axes, and guns. They started beating the co-victim (PW1) and the deceased. They carried PW1 and the deceased from the house of the deceased. PW1’s legs were tied and one of the accused persons using a dagger put in fire pierced the deceased in the abdomen and on the thigh with the hot dagger. Another accused person lit up a wrap of Indian Hemp and stuck it on the body of the deceased. Yet another accused person brought out a matchet and used the matchet to hit the deceased. The accused persons decided to allow PW1 to go.
While they were arranging to get a vehicle to come and carry the deceased and throw him in a river, the Police arrived. Both PW1 and deceased were taken to the police station and from there to the hospital.
The appellant in his defence however alleged that at about 6.00pm on March 14, 2016 he was in his house when one of his friends invited him to his village. That he went there and stayed till the following day in the morning when he returned. That on March 17, 2016 he received a message that the village head wanted to see him. There he was arrested by the Police.
The appellant and other accused persons were tried for conspiracy to commit murder and murder contrary to SECTIONS 331 AND 326(1) OF THE CRIMINAL CODE.
At the end of trial, the learned trial judge acquitted and discharged three of the accused persons while the appellant and some other accused persons were convicted on both counts of conspiracy to commit murder and murder. The appellant and four others convicted with him were sentenced to death. Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The appeal was determined on the following issues:
1.Whether the learned trial Judge exercised his discretion judicially and judiciously when he refused the application of the appellant’s counsel for an adjournment to enable him present his final written address at the close of trial; and whether the refusal did not impact on the Appellant’s right to fair hearing.
2. Whether the learned trial Judge was right when he discharged and acquitted the appellant’s co-accused persons charged with the appellant with the same offence and on the same set of evidence but convicted the appellant.
3. Whether the learned trial Judge properly evaluated the evidence of the appellant before coming to the conclusion that the prosecution proved ingredients of the offence of murder as it concerns the appellant.
On issue one, learned counsel for the appellant submitted that a trial Court is obliged to give opportunity to all parties in a cause the opportunity to file their final written addresses before delivering judgment. He relied on SECTION 294(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA. That the failure or neglect to afford a party or the parties the opportunity to present final written address would impact on the parties’/party’s right to fair hearing.
On issue two, counsel contended that the evidence of the PW1–PW5 could not be separated in respect of the Appellant and those that were discharged and acquitted by the trial Court so much so that all accused persons must either stand or fall together.
Appellant’s counsel relying on the case of EBRI V. STATE (2004) 11 NWLR (PT. 885) 589 AT 604-606; 612, submitted that where two or more persons are charged with the same offence and the evidence led by the Prosecution against all of them is interwoven if one of them is discharged and acquitted, then the other or others must also be discharged and acquitted.
On issue three, appellant’s counsel argued that the appellant raised the defence of alibi in Exhibits 3 and 9; his extra-judicial statements. That this evidence was reaffirmed by the Appellant under cross-examination. He contended that the evidence elicited from the PW4 under cross-examination corroborated the evidence of the Appellant that he timeously raised the defence of alibi. Counsel submitted that the record did not show that the Police investigated the alibi.
That the failure of the prosecution to investigate the defence of alibi timeously raised by the appellant in this case occasioned a miscarriage of justice on the appellant.
On issue one, learned counsel for the respondent contended that the trial Court in refusing the application for adjournment did so in the overall interest of justice. He stated that in the instant case, the parties were each given the opportunity to file their written addresses however did not file same and thus the judgment of the trial Court was purely on the evidence led by both Prosecution and defence.
Counsel referred to the case of JOHN V. STATE (2015) LPELR–40424 CA and submitted that if any of the parties failed to utilize the opportunity given to them, there cannot be want of fair hearing.
On issue two, respondent’s counsel submitted that the discharge and acquittal of the 3rd, 5th and 8th accused persons who were tried along with the appellant by the trial court did not automatically translate to the acquittal of the appellant. That the court is duty bound to consider the evidence against each accused person against their respective defences.
He further contended that in order to determine whether the acquittal of one accused person will automatically translate to the acquittal of others, the Court would consider if the accused persons at the trial have a common base defence to the charge against them.
Respondent’s counsel maintained that the defence of the 3rd, 5th and 8th Accused persons in the instant case was different from that of the appellant who was not discharged with the 3rd, 5th and 8th accused persons.
On issue three, in response to the contention of the appellant’s counsel that the defence of alibi raised by the appellant was not investigated, counsel for the respondent submitted that there were two contradictory versions of the defence in Exhibits 3 and 9, the statements of the appellant. That this cast doubt on the defence raised. He submitted that there was positive identification of the appellant at the scene of crime which has in turn made the defence of alibi to collapse.
RESOLUTION OF ISSUES
On issue one, the Court stated that none of the parties filed a written address when the case came up for adoption of same. That some of the accused persons counsel informed the court as to the reason for their failure in filing their written addresses. The court then aligned with the position of the trial court that these counsel were only trying to delay the case.
The court then stated that counsel having been given the opportunity to address the court cannot complain when they flung out the opportunity. That counsel cannot in the circumstance dangle right of fair hearing in the face of the court. The court pointed out that the right to fair hearing should not be used as a whipping principle and recklessly by counsel.
The court resolved issues two and three together and stated that the onus of proving the accused person guilt lies throughout upon the prosecution, which does not shift. See IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100. That the case against the accused person must be proved beyond reasonable doubt which can be proved by; his confessional statement; or evidence of an eye witness; or circumstantial evidence.
The court explained that in order to secure a conviction for murder which is one of the offences the appellant is charged with, 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 was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The court explained that where persons are charged with conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and that the persons charged be also proved to have been engaged in it. That where it is not always easy to prove the actual agreement, the courts usually consider it sufficient if it is established by evidence of circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy. See DABOH & ANOR V. THE STATE (1977) LPELR – 904 SC.
On the contention of the appellant’s counsel that appellant ought to be discharged and acquitted as some of the accused persons were discharged and acquitted, the court cited the case of IDIOK V. THE STATE (2008) LPELR–1423 SC AT PAGE 29–30, wherein Tobi JSC (of blessed memory) stated:
“It is not the law that once an accused person is discharged and acquitted, the co-accused must as a matter of course or routine be discharged and acquitted like the night following the day and vice versa. It is not so. There is no such automatic position. It depends entirely on the facts of the case before the court. A court will not be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused persons is the same and nothing but the same; and not merely in some nexus or proximity. Putting it differently, where the Court finds as a fact that no case has been made against an accused person, he can be discharged and acquitted… The Court can convict the co-accused on the basis of the inculpatory evidence against him; if any”
On the defence of alibi raised by the appellant, the court held that same was unreliable. That the appellant gave two contradictory versions of the defence in his statements that is Exhibits 3 and 9 and thus cannot benefit from the defence of alibi.
The court further explained that where an accused person is unequivocally fixed to the scene of crime as the one or one of those committing the offence, the defence of alibi is no longer available to him. This is because the defence by the accused person that he was somewhere else at the material time the offence was committed is destroyed by the unequivocal evidence of a witness or witnesses tying him to the scene of the crime as the one or one of those who committed the offence. See MAKANJUOLA V. STATE (2021) LPELR–54998 SC. The court pointed out that the evidence of PW1 and PW2 who were eye witnesses to the commission of the offence fixed the appellant at the scene of crime.
The appeal was dismissed for lacking in merit and the conviction and sentence of the appellant to death by the trial court was affirmed.
Julius O. Idiebe, Esq. – For Appellant(s)
Godwin Udom, Esq. -For Respodent(s)
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