Sus­pi­cion how­ever grave can’t amount to proof - Abba Aji

IN THE COURT OF AP­PEAL OW­ERRI JU­DI­CIAL DI­VI­SION HOLDEN AT OW­ERRI ON FRI­DAY THE 21st DAY OF FE­BRU­ARY, 2014 BE­FORE THEIR LORD­SHIPS UWANI MUSA ABBA AJI; (PRE­SID­ING JUS­TICE) PHILOM­ENA M. EKPE (JUS­TICE, COURT OF AP­PEAL); PETER OLABISI IGE( JUS­TICE, COURT OF A

Daily Trust - - LAW -

Con­tin­ued from last week

On the cir­cum­stan­tial ev­i­dence avail­able there­fore, who then pro­cured the de­ceased to the scene of crime and whether the Ap­pel­lant has a hand in the mur­der of the de­ceased.

The PW5 in his ev­i­dence un­der cross ex­am­i­na­tion said ,”It is a fact” when asked ‘If those three per­sons whose iden­ti­ties you do not know were brought by the ac­cused as prospec­tive buy­ers she had no need for a land agent, in­clud­ing the de­ceased.” Sim­i­larly, it is in ev­i­dence that the de­ceased as a land agent has been fa­mil­iar with the Ap­pel­lant on this same land trans­ac­tion and the said land. In fact, it was ad­mit­ted by PWl that the de­ceased had been on the land be­fore but the sale was aborted be­cause of the price. Also in her ev­i­dence un­der cross ex­am­i­na­tion PWl among other things re­vealed fur­ther that “the land trans­ac­tion be­tween my late hus­band and the ac­cused was not the first land trans­ac­tion they had to­gether.” More so, the PW5 re­vealed un­der cross ex­am­i­na­tion that ‘1n my in­ves­ti­ga­tions Re­port, I clearly stated that the in­ves­ti­ga­tion into the death of the de­ceased is still in­con­clu­sive since the three men the ac­cused went into the bush with them where the de­ceased was killed have not been iden­ti­fied. And since there is ab­so­lutely no ev­i­dence that the Ap­pel­lant had a hand in the death of the de­ceased even though a sat­is­fac­tory and co­gent ex­pla­na­tion is re­quired of her by the re­quire­ment of the law, the cir­cum­stan­tial ev­i­dence has to come in. The PWl in her state­ment to the po­lice here­inafter called Ex­hibit “A” said in­ter alia and I quote:

“1 am sus­pect­ing that she is the one who killed my hus­band. The other two sus­pects ar­rested¬ Michael Njoku and God­frey Amanze have land mat­ter with my hus­band (sic) fam­ily. 1 am also sus­pect­ing them to have hand in the death of my hus­band. It is also wor­thy of note to men­tion that some­time in the year 2004, Grace Nwachukwu in­vited my hus­band and in­formed him to look for a buyer who will buy the said land. My hus­band look (sic) for the buyer but they did not price it well as such, it was not sold by them to the buy­ers. Later, she came and in­formed my hus­band to re­call the buy­ers as she had agreed with the amount they of­fer. But they do not come to buy it as they went else­where and bought an­other land. That is all 1 have to say.”

She could not con­ceal her pi­quant and pun­gent sus­pi­cion on the Umung­waso fam­ily to hav­ing a hand in the death of the de­ceased. The PW1 said her sus­pi­cion here and laid a foun­da­tion the fact that the Ap­pel­lant had no lin­ger­ing quar­rel, mal­ice or dis­pute to war­rant her do­ing what be­fell her late hus­band but that based on what hap­pened, she had a clue. It is part of the ev­i­dence of PW1-the wife of the de­ceased as fol­lows:

I greatly ap­pre­ci­ate the eval­u­a­tion of ev­i­dence of the trial judge and es­pe­cially the fact that the de­meanour of the wit­nesses was ex­clu­sively his do­main, I tend not to agree with his sense of judg­ment as it is ba­si­cally sus­pi­cious and largely cir­cum­stan­tial when he de­cided thus:

“Fol­low­ing the logic of the anal­y­sis made, and the se­quence of facts as set out above, the cir­cum­stan­tial ev­i­dence thus ad­duced is co­gent, strong, un­equiv­o­cal and points ir­re­sistibly to the ac­cused as be­ing re­spon­si­ble for the death of the de­ceased hav­ing played the part of lur­ing him to the scene of crime. For all these rea­sons, I have found the ac­cused guilty of the mur­der of God­win Ok­wandu on the 6th day of De­cem­ber, 2005 as charged on the in­for­ma­tion.”

It is the law there­fore that for cir­cum­stan­tial ev­i­dence to ground con­vic­tion in a mur­der case, it ought to lead to one con­clu­sion and pos­si­bil­ity. That it was the ac­cused and no other that killed the de­ceased. This was suc­cinctly held -in MO­HAMMED V. STATE (1997) 11 NWLR (PT. 528) 339 AT 359:

Hav­ing gone through the ev­i­dence and the state­ments of the Ap­pel­lant’s and Re­spon­dent’s wit­nesses and as an in­de­pen­dent um­pire who had not the op­por­tu­nity of watch­ing the de­meanour of the wit­nesses, my task here is to es­tab­lish whether by the ev­i­dence, rea­son­able doubt ex­ists in the in­stant ap­peal.

It has been es­tab­lished in ev­i­dence that the de­ceased is a land agent and has been into such a land trans­ac­tion with the Ap­pel­lant for some time be­fore the de­ceased was shot to death in the com­pany of the Ap­pel­lant. It is in ev­i­dence and in fact undis­puted that the de­ceased vis­ited the house of the Ap­pel­lant for the pur­pose of show­ing the de­ceased the boundary of the land which was hitherto shown him in a pre­vi­ous aborted deal. PWl ac­cepted that the de­ceased told her that he vis­ited the house of the Ap­pel­lant. Thus, the visit of the de­ceased to the house of the Ap­pel­lant on 5/12/2005 is not con­tentious. The con­tention how­ever is whether he was lured and baited into his mur­der by the Ap­pel­lant on the 6/12/2005 or not.

This was con­firmed by PW1 par­tic­u­larly the an­swer to her cross ex­am­i­na­tion when in­ter alia she re­vealed: To my knowl­edge and as I stated in one of my state­ments to the po­lice, the land trans­ac­tion be­tween my hus­band and the ac­cused was not the first land trans­ac­tion they had to­gether.” (The un­der­lined for em­pha­sis).

There has been cre­ated a pos­si­bil­ity of the de­ceased be­ing killed by the mem­bers of the Umung­waso fam­ily who the de­ceased took an oath against and the ef­fect was that whoso­ever died within a year of the oath taken was pre­sumed to have been killed by the juju and the sur­viv­ing fam­ily would be en­ti­tled to the land. The PW1 did not mince words here nor ruled out that pos­si­bil­ity when she un­equiv­o­cally said that the other two sus­pects ar­rest­edMichael Njoku and God­frey Amanze have land mat­ter with my hus­band fam­ily. I am also sus­pect­ing them to have hand in the death of my hus­band.” She ad­mit­ted when un­der cross ex­am­i­na­tion that she told the po­lice of also sus­pect­ing the Umung­waso fam­ily as part of the people who shot her hus­band and she replied that “I said so.” PW5 made an­other cor­rob­o­ra­tive rev­e­la­tion that it was the PW1’s pe­ti­tion to the AIG Zone 9 Head­quar­ters, Umuahia, that she was sus­pect­ing (1) El­der Michael Nwogu Njoku (2) Chief God­frey Amanze (3) Chief Ngozi Njoku (4) Mr. Nwoobioha Njoku (5) Mr. Good­luck Njoku (6) Mr. Chin­tua Nwad­inma (7) Mr. Nwa­zor (8) Mr. Osu Obiwe (9) Mr. Em­manuel Ap­pol­los. I am of the strong opin­ion that though sus­pi­cion is not ev­i­dence in law but this hav­ing come from

“It is the law there­fore that for

cir­cum­stan­tial ev­i­dence to ground con­vic­tion in a mur­der case, it ought to lead to one

con­clu­sion and pos­si­bil­ity.

the prose­cu­tion prin­ci­pal wit­ness; it cre­ates se­ri­ous and rea­son­able doubt on my mind that there is also an­other pos­si­bil­ity that it may not also be the Ap­pel­lant that mur­dered the de­ceased.

The many ‘whys’ asked by the trial court and the con­clu­sions drawn are to my sin­cere opin­ion not ir­re­sistible pos­si­bil­i­ties ad con­clu­sions to the Ap­pel­lant hav­ing a hand in the death of the de­ceased. I have also ru­mi­nated and cog­i­tated over so many pos­si­bil­i­ties in this in­stant ap­peal and I am com­pelled to keep ques­tion­ing: is it pos­si­ble for the Ap­pel­lant to find the de­ceased on the way with the prospec­tive buy­ers of the land who turned out to be his mur­der­ers? Is it the land agent that ought to pro­cure buy­ers of a land he had been hired or en­gaged to sell or the land owner? Is it pos­si­ble for the ap­pel­lant not to know the prospec­tive buy­ers of the land who turned out to be his mur­der­ers though she was in their com­pany and she saw them? Is it also pos­si­ble that the Ap­pel­lant is un­der a threat of ex­ter­mi­na­tion or an­ni­hi­la­tion by the mur­der­ers not to re­veal who they are af­ter they have killed the de­ceased even though she may be able to iden­tify them? If I may guess fur­ther, if as led in ev­i­dence that the de­ceased came to the Ap­pel­lant’s house on 5/12/2005, to in­form her of hav­ing got prospec­tive buy­ers, who al­legedly were the ones taken to the Ap­pel­lant’s farm on 6/12/2005, then com­mon ac­tion may also be ruled out, etc. These all cast rea­son­able doubts on my mind. The law there­fore has prof­fered a way out to this prob­lem in the case of AZEEZ V. STATE (2005)8 NWLR (PT.927) 312 AT 326 PARAS G-H, wherein it held that:

“It is fun­da­men­tal prin­ci­ple of crim­i­nal law that once there is a doubt about the guilt of the ac­cused per­son, such doubt must be re­solved in favour of the ac­cused. And once such doubt is re­solved in favour of the ac­cused, the courts have no choice but to dis­charge and ac­quit the ac­cused for the of­fence charged.”

I there­fore re­solve this is­sue also in favour of the Ap­pel­lant.

In sum, the two is­sues are re­solved against the Re­spon­dent and in favour of the Ap­pel­lant. The ap­peal is there­fore mer­i­to­ri­ous and it is hereby al­lowed. The con­vic­tion and sen­tence of the Ap­pel­lant in the judg­ment de­liv­ered on 5/10/2009 is hereby set aside. The Ap­pel­lant is there­fore dis­charged and ac­quit­ted of the of­fence of mur­der con­trary to Sec­tion 319 of the Crim­i­nal Code, ap­pli­ca­ble to Abia State.

Le­gal Rep­re­sen­ta­tions:

Chief Henry Akunebu, Esq. with P. A. Obiukwu, Esq. for the Ap­pel­lant.

E. Okezie, Esq. (SGPS) Abia State, P. U. Ogubunka, Esq. Ag. DCL, for the Re­spon­dent.

Con­cluded

Zainab Bulka­chuwa, Pres­i­dent, Court of Ap­peal

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