➥ CASE SUMMARY OF:
Enobong Victor-Isonguyo v. The State (2022) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC/CR/249/2020
➥ JUDGEMENT DELIVERED ON:
Friday, 8th April 2022
➥ AREA(S) OF LAW
Murder;
Speculation;
Accused person.
➥ PRINCIPLES OF LAW
⦿ INGREDIENTS FOR A CHARGE OF MURDER TO SUCCEED
For a conviction to be secured in a charge of murder as prescribed under section 319(1) of the Criminal Code, Cap. 48, Vol. II, Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Edo State, the following ingredients must be proved thus: (i) That the deceased died; (ii) That the death of the deceased resulted from the act of the accused person; (iii) That the act of the accused person was intentional with knowledge that death or grievous bodily harm was its probable consequences. — M.U. Peter-Odili, JSC.
⦿ WHERE ACCUSED PERSON IS THE ONLY WITNESS TO AN EVENT
This court has stated in a legion of cases that where the evidence of an accused person is the only witness of an event, any other evidence given by another person not being an eye witness to that particular event will be hearsay or speculative. I commend the decision of this court in Ahmed v. State (1999) 7 NWLR (Pt. 612) 641 at 675 Belgore, JSC while allowing the appeal stated as follows: “In a situation where only the evidence of the accused person as to the actual stabbing is the only eye-witness account, he is either believed or there is no other evidence to believe.” Also in Bassey v. State (2019) 18 NWLR (Pt. 1103) 160 at page 166, para. F, Abba Aji, JSC while allowing the appeal stated as follows: “the testimony of appellant appears to me very striking and believable since there was no eye witness to the crime except the story of the appellant herein. His evidence seems consistent and correlated.”
⦿ CONFESSIONAL STATEMENT CONSTITUTES EVIDENCE AGAINST THE MAKER ALONE
In a plethora of decisions, this court has held that a confessional statement constitutes evidence against the maker alone and cannot be used as evidence against a co-accused unless the co-accused adopts it by word or conduct. The rationale for this is clear – noone can confess to a crime on behalf of another. See: Ajaegbo v. The State (2018) LPELR – 44531 (SC) @ 44 – 45 C – D; (2018) 11 NWLR (Pt. 1631) 484; Kasa v. The State (1994) 5 NWLR (Pt. 344) 269 @ 288; Jimoh v. The State (2014) 10 NWLR (Pt. 1414) 105 @ 139. It is therefore an incorrect statement of the law to state that the court can rely on the extra-judicial confession of an accused against his co-accused, to ground a conviction against him so long as it incriminates him. — Kekere-Ekun, JSC.
⦿ WHAT IS SPECULATION?
Speculation is “the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge”. See Black’s Law Dictionary: 6th Ed. — Augie, JSC.
⦿ INELEGANCE OF BRIEF WILL NOT DEFEAT MERIT OF A CASE
However, since the introduction of brief writing way back in 1985 in the apex court, it has been the availing principle and practice that inelegance of a brief of argument should not defeat the merits of a case. Thus, as much as possible, the brief should be salvaged unless it is legally impossible to do so. See Ndukwe v The State 37 NSCQR 425 @ 484; (2009) 7 NWLR (Pt. 1139) 39; Amghare v Sylva (2009) I NWLR (Pt.1121) 1@ 53; Lawal v. Salami (2002) 2 NWLR (Pt. 752) 687: Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88. — Saulawa, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mary Ukaego Peter-Odili, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
E.O. Afolabi, Esq.
⦿ FOR THE RESPONDENT
Mrs. M.O. Eruaga-Idahosa.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Court of Appeal Benin Division or court below or lower court delivered on the 26th day of March, 2020. The court below affirmed the judgment and all the findings of the trial High Court. The court below had its Panel made up of Samuel Chukwudumebi Oseji, JCA (as then was), Aseimo Abraham Adumein and Biobele Abraham Georgewill, JJCA.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. If on the evidence the trial and court below was right to hold the charge of conspiracy to commit murder and murder against the appellant proved beyond reasonable doubt?
RULING: IN APPELLANT’S FAVOUR.
A. THE 1ST ACCUSED DID NOT GIVE INCRIMINATING EVIDENCE AGAINST THE APPELLANT
“Under cross-examination, the 1st accused denied conspiring with the 2nd accused to kill the deceased. Clearly, the 1st accused person did not give incriminating evidence at the trial against the appellant who was 2nd accused and this ran counter to the finding of the Court of Appeal.”
B. THERE IS NO POINTER TO THE APPELLANT KILLING THE ACCUSED
“The trial Judge had already held in her judgment that it was only the 1st accused that killed the deceased. The scene of crime was only within the knowledge of the 1st defendant. “This proves conclusively that 1st defendant and none other killed the deceased pointing to the police the scene of crime is proof of admission by conduct of the 1st defendant. See: Emeka v. State (supra); Gira v. State (supra). The appellant denied complicity in the crime of murder in her extra judicial statement to the police which was tendered as exhibit O and state clearly that it was the deceased who drove himself out of the house on that day. The appellant equally denied the complicity in the murder in her evidence in open court and under cross examination and she never adopted the contents of the purported confessional statement of the 1st accused person. The cause of death was attributed to a sharp object which affected the body of the deceased and no sharp object was recovered from the appellant. The first accused at the trial court never gave incriminating evidence against the appellant in the open court when he testified.”
C. THE CONVICTION OF THE APPELLANT WAS BASED ON SPECULATION
“Following in the guiding light of the judicial authorities cited above, what is glaring is that there are two disparate versions of what occurred and no eye witness account involved therefore, the court is duty bound to accept that proffered by the accused/appellant. Any other conclusion would have the effect that the conviction of the accused/appellant was based not on credible evidence but rather founded on speculation, tainted by reasonable doubt. See Emeka v. The State (2014) LPELR-3472011 (SC); (2014) 13 NWLR (Pt. 1425) 614; Arehia v. The State (1982) NSCC 85; (1982) 4 SC 78.”
.
.
.
✓ DECISION:
“The conclusion is that there is merit in this appeal which I allow. I set aside the judgment of Court of Appeal affirming the conviction and sentence of the appellant. The appellant is accordingly acquitted and discharged. Appeal allowed.”
➥ MISCELLANEOUS POINTS
***DISSENTING
**Saulawa, JSC. —
⦿ THERE WAS CIRCUMSTANTIAL EVIDENCE TO INCRIMINATE THE APPELLANT
“It is trite, that the fundamental object of a circumstantial evidence in criminal trial is basically to accord potency or credibility to a piece of evidence, which if left alone would sustain the burden of proof of the offence allegedly committed by an accused person (defendant). See Adesina v. The State (2012) 14 NWLR (Pt. 1321) 14. What’s more, in exhibits C1-C3, the appellant admitted to have packed some of the deceased person’s document for safe keeping and handing them over to the 1ST defendant. Most particularly, in exhibit C3, the appellant stated that she gave the Passat car (exhibit U) as a seed to the 1ST defendant, who assured her that God would answer her prayers. Thus, against the backdrop of the foregoing highlight, I am of the considered view that the court below was absolutely right, when it held that the 1st defendant’s confessional statement was binding upon the appellant, notwithstanding the fact that the 1ST defendant had denied ever making any incriminating statement against the appellant.”
⦿ THE APPELLANT CONSPIRED WITH THE PASTOR UDOKA THEREBY MAKING HER LIABLE FOR THE PRINCIPAL OFFENCE TOO
“What’s more, the fact that the 1st defendant, Pastor Udoka actually committed the despicable act is also not in doubt. What is in dispute is whether the appellant conspired, procured, aided and/or counseled the 1st defendant to murder the deceased, the appellant’s husband. By virtue of the provision of section 7 of the Criminal Code, when an offence is committed, each of the following persons is deemed to have taken part in committing the offence, and may be charged with actually committing it, that is to say – (a) every person who actually does the act or makes the omission which constitutes the offence: (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence; any person who counsels or procures any other person to commit the offence. (d) In the fourth case, he may be charged either with himself committing the offence or with counseling or procuring its commission. A conviction of counseling or procuring the commission of an offence entails the same consequences in all aspects as a conviction of committing the offence. Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission. In the same vein, sections 8 and 9 of the Criminal Code (supra) equally provide thus: When two or more person form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him … Arguably, the implication of the provision of section 7 of the Criminal Code (supra) is that, notwithstanding the fact that the appellant was not specifically sentenced (though aptly found guilty) under section 324 of the Criminal Code, Cap. 48, Volume II, Laws of Bendel State of Nigeria, 1976 (applicable to Edo State), both the trial court and the court below were right in convicting and sentencing the appellant under section 319(1) of the Criminal Code (supra) for the murder of the deceased person. See section 7 of the Criminal Code (supra). In the circumstances, the second issue is hereby resolved against the appellant.”
⦿ THERE IS ABSURDITY AND CONTRADICTION IN THE STATEMENTS OF THE APPELLANT
“From the totality of the evidence adduced by the prosecution, in this case, the offence of murder was proved beyond reasonable doubt in the sense that: The deceased Mr. Victor Gabriel Isonguyo died on or about the 29th day of November, 2013. The death of the said Mr. Victor Gabriel Isonguyo resulted from the act of Pastor Prince Udoka Ukachukwu, who was directly procured by the appellant to execute the most dastardly act; and The act of the appellant hiring his ‘man’ friend for whom she was carrying an unlawful and immoral pregnancy to kill the deceased in the manner that he was killed, was intentional with the knowledge that death was its only probable consequence(b) (c) (a) . The absurdity inherent in the appellant’s evidence, both inchief and under cross-examination, lends credence to the trial court to reject the appellant’s case in toto. See pages 106 (lines 17-22), 107 (1-22), 108 (1-21), 112 (14-20), and 113 (1-20) of the record. Most particularly, at page 113 (16-20) of the record the appellant testified that she told the 1ST defendant to come to the house and pick up the deceased person’s car and home documents. At page 114 (2-3) she stated under cross-examination that she could not drive because she had a cervical issue and she was not to drive with the stitch. Where as in her extra-judicial statement, she stated that she drove out the Passat Car Model 2013 and gave it to the 1ST defendant along the road. In court and the court below were cogent, credible unassailable and my considered view, the findings of facts by both trial duly supported by the evidence on record. Thus, such credible and unassailable findings of the two courts below ought not to be disturbed by this court.”
➥ REFERENCED (LEGISLATION)
Section 29(4) of the Evidence Act, 2011.
➥ REFERENCED (CASE)
⦿ ASSESSMENT OF WITNESS IS WITHIN THE PROVINCE OF THE TRIAL COURT
In the case of Afolalu v. The State (2012) vol. 10 LRCNCC 30 at 40, ratio 13; (2010) 16 NWLR (Pt. 1220) 584, when this court held, inter alia, that: “The assessment of credibility of a witness is a matter within the province of the trial court as it is the only court that has the advantage of seeing, watching and observing the witness in the witness box. The court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. On the issue of credibility of witnesses, the appraisal of evidence and the confidence to be reposed in the testimony of any witness, an appellate court cannot on printed evidence usurp the essential function of the trial court which saw, heard and watched the witnesses testify.”
⦿ CIRCUMSTANTIAL EVIDENCE THAT IS CAPABLE OF TWO INTERPRETATIONS CANNOT BE RELIED UPON
Oguntade, JSC while allowing the appeal in Cyriacus Ogidi v. State Ors. (2005) LPELR-2303 (A) (SC); (2005) 5 NWLR (Pt. 918) 286 Estated at page 30 as follows: “In the State v. Muhtari Kura (1975) 2 SC 83 and 89, this court decided that when circumstantial evidence is capable of two possible interpretations, one against and the other in favour of the accused then in that circumstance, there has been no proof beyond reasonable doubt. Circumstantial evidence to support a conviction in a criminal trial, especially murder must be cogent, complete and unequivocal. It must be compelling and must let lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Per Humphrey, J. in R. v. Taylor & 2 Ors. 21 Cr. App. 20.”
➥ REFERENCED (OTHERS)
