Whether the duty of the trial court to evaluate evidence can be discharged by use of words I believe or I prefer

OFONI v. STATE
CITATION: (2021) LPELR-55642(CA)
In the Court of Appeal
In the Benin Judicial Division
Holden at Benin

ON THURSDAY, OCTOBER 14, 2021
Suit No: CA/B/441C/2019

Before Their Lordships:
MOHAMMED AMBI-USI DANJUMA
Justice, Court of Appeal
BIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal
FREDERICK OZIAKPONO OHO Justice, Court of Appeal

Between
CLEMENT OFONI – Appellant(s)
And

THE STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, J.C.A.

FACTS
This is an appeal against the Judgment of the High Court of Edo State, Coram: R. Irele – Ifijeh J., in Charge No. HCOK/8C/2013 delivered on 29/4/2019.

The case of the respondent as prosecution was that the appellant and his co-accused had on or about the 2/7/2012 hired the services of a Motorcyclist at the rate of N1, 000. 00 from Egor to James Camp off Okhun Village via Ekiadolor and on their way from Okhun village, they conspired to kill and killed the bike man, one Monday Dominic when the Appellant inflicted a matchet cut on the back of the head of the Bike Man while the co-accused used firewood to hit the Bike Man to death. His corpse was then dragged into the bush by them after which they took over the deceased Daylong Motor cycle and rode it to Benin City. Few days after, the decomposing remains of the bike man was found in the bush by the villagers and was identified as the body of the bike man that took the appellant and his co-accused to the village and they were apprehended by the appellant’s uncle on their way back from the petrol station with the Daylong Motor cycle at Uwasota junction in Benin City. They were taken to the Police and they confessed to their crime in their voluntary extra judicial statements. They were subsequently charged before the High Court of Edo State for conspiracy to commit murder and murder of the deceased.

On his part, the case of the appellant as the 2nd accused person before the High Court was that he is a carpenter and he does not know the 1st accused person and denied the allegations against him. The appellant pleaded not guilty to all the counts alleged against him and the matter proceeded to trial. On 29/4/2016, the High Court delivered its judgment, convicting the Appellant as charged, and subsequently sentenced the Appellant to death by hanging. Being dissatisfied, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether, from the totality of evidence led in this instant case and upon a proper evaluation of the evidence on record, the court below was justified in holding that the respondent proved beyond reasonable doubt the two-count charge against the appellant even when the appellant’s evidence was the only eye-witness account to the said offences, the scene of crime established by the PW1’s evidence was at variance with the scene of crime contained in the charge, proof of death and cause of death were still pending, coupled with other fundamental flaws inherent in this case?
2. Whether, from the totality of evidence led in this instant case and upon a proper evaluation of the evidence on record, the court below was not duty bound to consider all defences and evidence on record which favourably avails the appellant?

APPELLANT’S SUBMISSIONS
On issue one, learned counsel for the appellant submitted that the respondent, having failed to prove its case beyond reasonable doubt, the appellant has no duty to call evidence in rebuttal as there is no obligation on the appellant to prove his innocence in law. Counsel contended that the respondent having failed to prove its case beyond reasonable doubt, the High Court ought to have discharged and acquitted the appellant. Counsel referred to Section 6(5) of the Constitution of Nigeria 1999 (as amended), Section 135(1) of the Evidence Act 2011, ONUBOGU V. THE STATE (1974) 9 NSCC 358; AIGBADION V. THE STATE (2000) 7 NWLR (Pt. 666) 686 @ p. 690; IKARIA V. THE STATE (2014) 1 NWLR (Pt. 1389) 639 @ p. 643.

Counsel further submitted that the respondent failed to lead any credible evidence in proof of the essential ingredients of the offences of conspiracy to commit murder and murder against the appellant as required by law. According to counsel, the respondent failed to prove neither the fact of the death, nor the cause of death of the deceased, as no single medical evidence was adduced in that regard. Counsel contended that in law the failure to prove these vital ingredients of the offence of murder amounted to lack of proof of the offence beyond reasonable doubt as required by law. Counsel relied on PRINCEWILL V. THE STATE (1994) 6 NWLR (Pt. 353) 703 @ pp. 705 – 706; DAMINA V. THE STATE (1995) 8 NWLR (Pt. 415) 513 @ pp. 521-522. Counsel submitted that in the absence of any evidence of the fact of death, cause of death and identification of the corpse of the deceased, no such inferences could be drawn by the High Court from the retracted confessional statement of the appellant.

On issue two, counsel submitted that in the final consideration of the totality of evidence adduced, the High Court failed to consider the defences and evidence which favourably avails the appellant even with the fundamental gaps that were revealed in the respondent’s case and thus failed in its duty. Counsel relied on NWANKWOALA & ANOR. V. THE STATE (2006) 14 NWLR (Pt.1000) 663 @ p. 686; MUSA YARO V. THE STATE (2007) 18 NWLR (Pt. 1066)215 @ pp. 232 – 233. Concluding, counsel urged the High Court to allow the appeal and set aside the judgment of the High Court for being perverse.

RESPONDENT’S SUBMISSIONS
In response, counsel submitted that in law, proof beyond reasonable doubt does not mean proof beyond every iota of doubt or proof beyond every shadow of doubt, but proof, which conveys a high degree of probability. Counsel submitted that the confessional statement of the appellant, though retracted, remained good evidence on which the High Court rightly relied amongst other evidence to convict the appellant as charged. Counsel relied on citing THE STATE V. ALI AHMED (2020) LPELR – 49497(SC) @ pp.18-19; OSENI V. THE STATE (2012) LPELR – 7883 (SC); OGUNNIYI V. THE STATE (2012) LPELR – 8567(CA). Counsel further contended the failure of the respondent to call eye witnesses was not fatal to the case as the respondent does not need to call a host of witnesses. Counsel relied on IKENNE V. THE STATE (2018) LPELR – 44695(SC) @ pp. 13 – 14.

On issue 2, counsel submitted that the High Court did not fail in its duty of diligently and painstakingly evaluating the evidence led before it and ascribing probative value to same, as such, the Court of Appeal has no reason to interfere with the decision. Counsel relied on OGUNNIYI V. THE STATE (2012) LPELR – 8567(CA). Counsel urged the Court to dismiss the appeal.

RESOLUTION OF THE ISSUES
Resolving both issues together, the court stated the ingredients of the offence of conspiracy and murder, relying on the cases of TANKO V. STATE (2009) All FWLR (Pt. 456) 2013 @ p. 2014; ARCHIBONG V. THE STATE (2004) 1 NWLR (Pt. 855) 488. Going further, the Court stated that according to the dictates of the law, the burden of proof was on the respondent to establish the ingredients of the offences charged. In discharging the burden of proof, the respondent could rely on the confessional statement of the appellant, circumstantial evidence and evidence of eye witnesses. See EMEKA V. THE STATE (2001) 14 NWLR (Pt. 734) 666.

Going further, the court stated the position of the law that once there is sufficient credible evidence upon which the fact of the cause of death of the deceased can be inferred, medical report is not necessary in such circumstance, in the absence of which a Court can legitimately infer the cause of death from the evidence and circumstances. See OGBU V. THE STATE (2007) 1 NWLR (Pt. 1028) 635. The court also stated the position of the law that evaluation of evidence and ascription of probative value is the duty of the trial court. Unless the trial court fails in its duty, an appellate court will not interfere with the evaluation of the trial court. See OBAJIMI V. ADEDIJI (2008) 3 NWLR (Pt. 1075) 1 @ P. 19.

On the charge of conspiracy, the Court stated that conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. See ODUNAYO V. STATE (2014) 12 NWLR (Pt. 1420) 1. The court further stated that in order to establish the offence of conspiracy it is not necessary that the conspirators should or must know each other so long as they know of the existence and the intention or purpose of the conspiracy. However, the facts to be relied upon by the court for conviction for conspiracy must be consistent, cogent and must irresistibly lead to the guilt of the accused persons. See ERIM V. THE STATE (1994) 5 NWLR (Pt. 346.

Applying the above principle to the facts of the case, the court held that on the totality of the evidence led by the respondent, apart from the retracted confessional statements of the appellant, there was no scintilla of independent evidence to corroborate the truth of the contents of the retracted confessional statement of the appellant. All the persons who made statements to the Police and could have given independent evidence as to the fact of the appellant and his co-accused person being the last to be seen with the deceased while he was alive as passenger on his motor bike were not called to testify by the respondent at the trial before the High Court. Going further, the court stated that even though the respondent was not under any duty to call all available or listed witness in proof of its case, the respondent was under a duty to call vital witnesses in the absence of which the guilt of the appellant could not be said to have been proven beyond reasonable doubt. As regards the charge of conspiracy, the court held that the evidence led by the respondent was not consistent, cogent and did not irresistibly lead to the guilt of the appellant. The court held that on the porous evidence led by the respondent and in the absence of all the vital witnesses, the High Court below was in grave error to have drawn the inference of any conspiracy, fact or cause of death, without supporting hard evidence of any such facts. The court held that the court should have applied the tests in REX V. SYKES (1913) 8 CAR 233 in deciding the weight to be attached to the confessional statement should there be any independent evidence confirming the contents of said statement. See EMMANUEL NWAEBONYI V. THE STATE (1994) 5 (Pt. 343) 138.

HELD
The Court held that the appeal was meritorious and allowed same, setting aside the judgment of the High Court convicting the Appellant and sentencing him to death.

Appearances:
O. T. Okeke, Esq., Registered Pro Bono Lawyer
with Legal Aid Council of Nigeria For Appellant(s)
Mrs. R. O. Oaihimure SSC MOJ Edo State,
with him, I. J. Adodo, Esq., SSC MOJ Edo State For Respondent(s)

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