AYINDE V THE STATE

AYINDE V THE STATE


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 10TH FEBRUARY, 2017


Appeal No: CA/I/108/2007

CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

KAZEEM AYINDE
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Defence of Alibi – The burden to be proved by an Appellant raising the defence of alibi
Duty on the accused person raising the defence of alibi to give particulars of where he was at the time the offence was committed

The law relating to the defence of alibi is trite and certain as there is a plethora of authorities on the topic. By raising the defence of alibi, the Appellant is saying that he was somewhere else when the crime was committed; that not having been at the scene, it was impossible for him to have committed the crime. Being a matter peculiarly within his knowledge, the evidential burden is on him to give details of where he was, who he was with and what he was doing in the place. He must in addition mention the names of people who will testify on his behalf as to his assertions. These details must be provided at the stage of investigation to enable the prosecution verify the claims. See Ibrahim V. State (1991) 4 NWLR (PT. 186) 399; Ikemson V The State (1989) 3 NWLR(PT. 110) 455; Salami V State (1988) 3 NWLR (PT. 85) 670. Per IYIZOBA, JCA. read in context

2. Defence of Alibi – The duty of prosecution when an Appellant raises defence of alibi
On whom lies the onus of disproving alibi

The burden then is on the prosecution to demolish the alibi. It can do so in one of two ways: firstly by investigating the alibi, interrogating the persons named by the accused in order to puncture the truth of his assertions. Secondly, by adducing strong and satisfactory evidence that the accused was indeed at the scene of the crime. See the clarifying observation of Nnaemeka-Agu JSC of blessed memory in Ogoala V. The State (1991) 2 NWLR (PT. 175) 509

“Now the word “alibi” literally means “elsewhere.” When an accused person’s defence to a criminal charge is alibi he is saying that he was at another place at the time material to the charge: see Gachi & Ors. V. The State (1965) NMLR 333. It is no proper way of raising the defence of alibi for an accused person to show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed unless he can show that, because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. It is of course when the defence of alibi has been duly raised and the accused person additionally discharged the evidential burden incumbent on him by giving the particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove the alibi is cast on the prosecution. Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi. See on these – Abudu v. The State (1985) 1 NWLR (Pt. 1) 55; Esangbeda v. The State (1989) 4 NWLR (Pt. 113) 57; and Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 131. Once the duty of the prosecution to disprove the alibi arises in the manner I have stated, they can do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence or by calling evidence so strong and connecting the accused person with the commission of the offence charged that his defence of alibi cannot be true: see Ortese Yanor v. The State (1965) NMLR, 337.” Per IYIZOBA, JCA. read in context

3. Offence of Murder – The elements that must be established by prosecution to ground conviction for murder
Essential ingredients that must be proved by the prosecution to ground a conviction for murder

The law is trite that for the prosecution to secure a conviction for murder, certain elements must be established. They are:
(i) That the deceased died;

(ii) That the accused person unlawfully killed the deceased;

(iii) That the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes. Ogba V The State (1992) 2 NWLR (PT. 222) 174 @ 198; Ubani V State (2003) 18 NWLR (PT. 851) 224 @241; Udosen V State (2007) 4 NWLR (PT. 1023) 125 @ 146. Per IYIZOBA, JCA. read in context

4. Motive – The provision of law on motive
Whether motive is a necessity for establishing a crime

…Section 9 of the Evidence Act provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In the case of Ubani V The State (2003) 18 NWLR (PT. 851) 224, the Supreme Court held that

“…although proof of motive on the part of the accused on a charge of murder is not a sine qua non to his conviction for the offence, yet if evidence of motive is available, it is not only a relevant fact but also admissible under Section 9 of the Evidence Act.” Per IYIZOBA, JCA. read in context

5. Offence of Murder – Definition of murder

…the definition of murder is the taking of human life with intent to kill or cause grievous bodily harm. See Afosi V The State (2013) LPELR-20751(SC). Per IYIZOBA, JCA. read in context

6. Defence of Alibi – How the defence of alibi crumbles
When the defence of alibi will collapse

The law is that, once the prosecution have been able to advance credible evidence which unequivocally pins the prisoner to the scene of crime, any plea of alibi will not avail him. In the case of Dagayya v. State (2006) 7 NWLR CRt. 980) p. 637, the Supreme Court per Tobi, JSC (of blessed memory) said:

“The defence of alibi crumbles the moment the prosecution gives superior evidence that is more believable evidence than that of the accused, by fixing permanently the accused person not only at the scene of crime, but also in the commission of the crime, in any way that if a photograph was taken at the time, or point of the actus reus of the accused, it will clearly show or depict him in “romance’ with the crime he is charged with. The matter is as exact as that.” Per TSAMMANI, JCA. read in context

B. EVIDENCE
7. Identification Evidence – When identification parade becomes unnecessary
When the identity of an accused person will not be in doubt

The identity of the Appellant in the instant case was not in doubt and was not even canvassed at the lower Court. The facts of this case are somewhat similar to the case of Archibong Vs. State (Supra) cited by learned counsel for the Appellant. The case indeed supports the Respondent’s views rather than that of the Appellant who sought to rely on the authority. In Archibong the Supreme Court citation of which is (2006) 14 NWLR (Pt. 1000) 349, the Appellant was checked into a hotel room with the deceased woman by PW3 a waiter in the hotel. After some hours PW3 went to check on the couple and to collect the money due to the hotel as charges were on hourly basis; he found the deceased dead on the floor of the room and the Appellant nowhere to be found. He had absconded. At the hearing, PW3 and another waitress in the hotel PW2 testified that the Appellant was their regular customer who often hired a room in the hotel with the deceased. It was based on their description that the Appellant was arrested by the police. They also picked him out in the midst of policemen in uniform and others in an identification parade. On the issue whether the two prosecution witnesses sufficiently knew the accused person before the date of the incident and correctly identified him as the person who brought the deceased woman to the hotel on the fateful day, the Supreme Court held:

“In a criminal trial, where it is suggested that a piece of evidence casts some doubt in the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records, what aspect of the case becomes doubtful by reason of the evidence. In the instant case therefore, it is plainly illogical to attack the credibility PW2 and PW3 on the identification of the Appellant, when the Appellant himself concedes that both PW2 and PW3 were known to him before the date of the incident in question. In my view, considering the whole circumstances of this case, it was otiose to hold an identification parade. It is not in every case that an identification parade becomes necessary. See Adeyemi v The State (Supra). In the present case, rather than be a case of mistaken identity it was one of recognition and knowledge of the Appellant who was already known to the witnesses prior to the date of the incident in question. The Appellant who by his statement to the police and his evidence admitted the knowledge of him by both PW2 and PW3 can hardly complain of any mistaken identity.”

Similarly, in the instant appeal, the Appellant, the deceased, PW1 and PW3 knew themselves very well. They all lived in the same vicinity and PW3 employed the deceased as a night guard. The deceased identified the Appellant as his assailant by name using all the names by which he was known: Kazeem Ayinde or Kazeem Pele. There was no contradiction, conflict or confusion as to who Kazeem Ayinde or Kazeem Pele was. During the trial at the lower Court, the Appellant did not deny being Kazeem Ayinde or Kazeem Pele or knowing the witnesses. In his evidence at page 39 of the Record, PW1 referred to the Appellant as Kazeem Pele, he was cross-examined but no question was put to him as to who Kazeem Pele was. By failing to cross-examine; the implication is that he accepted that he is indeed Kazeem Ayinde, alias Pele. See Ighalo V State [2016] ALL FWLR (PT. 858) 617 @ 629 F-G. The Appellant and his counsel definitely knew that his name is Kazeem Ayinde, alias Pele. The Appellant’s evidence in the lower Court is at pages 51 and 52 of the Record. Therein he admitted knowing the deceased very well. He did not raise any question as to his own identity as Kazeem Ayinde or Kazeem Pele. His defence was an alibi which he was unable to prove. The issues raised in counsel addresses at pages 53 – 57 of the printed Record was as to the admissibility of the dying declaration of the deceased and the authenticity of the alibi set up by the Appellant. No issue whatever arose as to whether the Appellant Kazeem Ayinde was also Kazeem Pele. No doubt, it is the constitutional right of an accused person not to give evidence in his defence and he is entitled to remain silent and demand that the prosecution proves each and every element of the offence charged beyond reasonable doubt. See Abidoye V. Federal Republic Of Nigeria (2014) 5 NWLR (PT. 1399) 30 OR ALL FWLR (PT. 722) 1624. If the Appellant herein had elected not to give evidence and his counsel in his address raised the issue that the prosecution having failed to resolve the conflict as to whether the injuries inflicted on the deceased was by Kazeem Pele or Kazeem Ayinde, it would have been a different matter. The Appellant made a statement to the Police admitted in evidence as Exhibit A where he referred to himself as Kazeem Ayinde, alias Pele. The Appellant gave evidence and called one witness. Throughout the hearing the two names were used interchangeably by the witnesses called by the prosecution. Not a single question was put to any of the witnesses under cross-examination in order to create an issue of the matter. On the contrary, he referred to himself as Kazeem Ayinde, alias Pele in his statement to the Police. The clear inference is that both the Appellant and his counsel knew that the Appellant is Kazeem Ayinde, alias Pele. See Adeputu V State (1998) 9 NWLR (PT. 565) 185. The issue of the contradiction not having arisen at the trial, there was nothing for the Court to resolve. Indeed being a fresh point, the Appellant ought to have sought the leave of the Court to raise it on appeal but he did not. Be that as it may, the failure of the trial Court to resolve the alleged contradiction did not lead to a miscarriage of justice. Per IYIZOBA, JCA. read in context

8. Dying Declaration – When dying declaration is relevant and requirements to be fulfilled for it to be admissible
Definition and nature of a dying declaration; conditions that must be satisfied for dying declaration to be admissible in evidence

Section 33(1) of the Evidence Act provides:

Statements written or verbal or relevant facts made by a person who is dead are themselves relevant facts in the following cases –
(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.
Dying declaration is obviously as shown above one of the exceptions to the hearsay rule. It is a declaration made in extremity, when the maker is at the point of death and every hope of life is gone; the motive to tell lies is silenced and the mind is induced by the most powerful consideration to speak the truth. R. V Woodcock (1789) 168 ER 353. Under Section 33 above and as held in the case of Osiekwe V The State (1999) 9 NWLR (PT 617) 43 @ 68 for dying declaration to be admissible in evidence the following conditions must be satisfied:

1. The declaration itself which may be written or verbal must be of relevant facts.

2. The declarant must have died before evidence of the declaration is required to be given.

3. The declaration must relate to the cause of death of the declarant or as to any of the circumstances of the transaction which resulted in death and the cause of the declarant’s death must be in question at the trial.

4. The declaration is relevant only in trials for murder or for manslaughter of the declarant

5. The declarant must have believed himself to be in danger of approaching death when making the declaration. Per IYIZOBA, JCA. read in context

9. Contradiction in Evidence – What contradictory evidence entails
When is a piece of evidence contradictory to another; conditions to be satisfied before contradiction in the evidence of prosecution’s witness can be said to be fatal to its case

For a contradiction to be fatal to the prosecution’s case it must be material. In Ayo Gabriel V The State (1989) 5 NWLR (PT. 122) 457 @ 468 – 469, the Apex Court observed:

“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them….. Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details.” Per IYIZOBA, JCA. read in context

10. Circumstantial Evidence – How dying declaration is a form of circumstantial evidence
Circumstance under which circumstantial evidence may ground a conviction

The fact that the Appellant killed the deceased can be established by circumstantial evidence and dying declaration qualifies as circumstantial evidence. The circumstantial evidence must be one which creates no room for doubt or speculation. See Akpan V The State (1992) NWLR (PT. 248). The dying declaration is clear, precise and unambiguous. It left no room whatever for speculation. Per IYIZOBA, JCA. read in context

11. Cross-Examination – The implication of not cross-examining a witness on a particular matter
Effect of failure to cross-examine a witness on material point

It is trite that where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. Ighalo V State [2016] ALL FWLR (PT. 858) 617 @ 629 F-G. Per IYIZOBA, JCA. read in context

12. Cross-Examination – The objective of cross-examnation
Purpose of cross-examination

In the case of Oforlette V State (2002) 12 NWLR (PT. 681) 415 @ 436, Achike JSC (of blessed memory) described ‘cross-examination’ as “a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party.” Per IYIZOBA, JCA. read in context

13. Dying Declaration – Words admissible as res gestae
Whether dying declaration is admissible as res gestae

Another rationalization of the statement “Kazeern Pele Pami O” meaning “Kazeem Pele has killed me” is that such statements are declarations forming part of the transaction in issue and accompany or explain the transaction in relation to other circumstances revealed in evidence like previous threat to life. See Section 7 of the Evidence Act. See also Sule Salawu vs. State (1971) 1 MNLR 249 where a number of persons one night heard the deceased cry “Sule is killing me” from a room. The witness rushed into the room and at once saw the deceased in a pool of blood. The Western State Court of Appeal held that the words “Sule is killing me” were admissible as res gestae. In this case, the words “Kazeem Pele Pami o” and Kazeem and his gang” were admissible as res gestae under Section 7 of the Evidence Act. Per OKORONKWO, JCA. read in context


LEAD JUDGMENT DELVERED BY IYIZOBA, JCA


This is an appeal against the judgment of Olakanmi J. of Oyo State High Court sitting at Ibadan in Charge No. I/67C/1999 delivered on the 20th day of June 2002 wherein the Appellant was sentenced to death on a charge of murder of one Ayuba Karimu contrary to Section 316 and punishable under Section 319 (1) of the Criminal Code Cap. 38 Volume II Laws of Oyo State 1978.

THE FACTS:

According to the prosecution, the deceased Ayuba Kareem was a night guard at some shops including that of PW3 – Kehinde Ilori at an area called Oje Market in Ibadan. One Adesokan Akinade (PW1) when coming from his house in the early morning of 16/2/1998 met the deceased in a pool of his blood groaning in pain and when he asked him what happened to him, the deceased said: “Kazeem Ayinde alias Pele is the person who killed me o.” PW1 rushed to call one Dr. John Ugele (P.W2) who also rushed to the scene with his wife. P.W2 asked the deceased who matcheted him and the deceased answered “Kazeem Pele and his gang.” PW2 immediately went to the Police Station and made a report of the incident. Policemen amongst who was PW4 followed him to the scene. In his evidence at the trial PW4 testified that he heard the deceased say: “Kazeem Pele Pami o” meaning Kazeem Pele has killed me”. PW4 and PW2 carried the deceased to the hospital where he was confirmed dead.

The Appellant, in his defence gave evidence and called one witness – D.W1, his wife. He raised an alibi that he was away to Lagos when the incident happened. The defence was considered and rejected by the trial judge who found him guilty of the offence of murder and sentenced him to death by hanging. Dissatisfied with the judgment, the Appellant appealed to this Court by a Notice of Appeal dated 24/6/02 and filed on 2/7/02 subsequently amended by an order of the Court granted on 12/10/15. Out of the seven grounds of appeal in the Amended Notice of Appeal dated 14/10/15 and filed on 15/10/15, the Appellant distilled six issues for determination as follows:

(1) Whether the trial judge was right to convict the Appellant without resolving the contradiction as to the identity of the actual person referred to by the deceased in the deceased’s declaration about the person that macheted him.

(2) Whether the oral testimony of the deceased to PW1, PW2 and PW4 passed the test of dying declaration as explicit in Section 40 (1) (A) of the Evidence Act.

(3) Whether the degree of certainty required for the conviction for the offence of murder was attained by the trial judge before convicting the Appellant considering the nature of the evidence adduced at the trial Court.

(4) Whether the conviction of the Appellant for murder was right when there was no conclusive proof that the Appellant killed the deceased to the exclusion of any other person’s act.

(5) Whether the trial judge was right in holding that the defence of Alibi raised by the Appellant could not avail him when it was not investigated at all and not controverted by the prosecution.

(6) Whether the prosecution has in fact adduced any circumstantial evidence to establish a case of murder or any case at all against the Appellant.

The Respondent in her brief of argument formulated four issues for determination viz:

(1) Whether failure of the trial Court to resolve the contradiction in the identity of the person who actually matcheted the deceased to death occasioned a miscarriage of justice to the Appellant.

(2) Whether the Court below rightly held that the statement ‘Kazeem Pele, Pami o’ Kazeem Pele has killed me made by the deceased to PW1, PW2 and PW4 tantamount to dying declaration.

(3) Whether the Court below rightly held that the defence of alibi raised by the Appellant would not avail him.

(4) Whether at the Court below the prosecution proved its case against the Appellant beyond reasonable doubt.

The 4 issues formulated by the Respondent are more succinct and encompasses all the 6 issues of the Appellant. Appellant’s issues 3, 4 and 6 are covered by Respondent’s issue 4. I shall consequently adopt Respondent’s 4 issues in the determination of the appeal.

ISSUE ONE:

Whether failure of the trial Court to resolve the contradiction in the identity of the person who actually matcheted the deceased to death occasioned a miscarriage of justice to the Appellant.

APPELLANT’S ARGUMENTS:

In the Appellant’s brief settled by Tunde Olupona Esq, it was contended that there were contradictions in the evidence of PW1, PW2 and PW4 as regards the identity of the person the deceased mentioned as having inflicted the injuries that resulted in his death. Learned counsel argued thus:

“It is significant to note that the evidence of the above witnesses PW1, PW2 & PW4, as to the identity of the accused person was not the same, very unreliable and to that extent very contradictory. We humbly submit that the statement or declaration that “It was Kazeem Pele who wounded him” allegedly made by the deceased does not and cannot mean the same as “It was Kazeem Pele and his gang that wounded him, and they are both incapable of meaning that it was One Kazeem Ayinde, saying “Kazeem Ayinde killed me” as well. These three words “Kazeem Ayinde Killed me” or “Kazeem Pele and his gang wounded me’ Kazeem Pele wounded me” coming from the Prosecution witnesses who claimed to be eye witnesses are contradictory in material particular about the identity of the person that was responsible for the act that possibly caused the death of the deceased. We further submit humbly that the identity of the person the deceased mentioned in his declaration and that of the Appellant was not properly resolved by the Court as “Kazeem Pele” cannot be said to be Kazeem Ayinde” and was not shown to be the same person by the trial Court. There is nowhere from the prosecution case or in the judgment where the Court resolved the issue of whether it is the Appellant that is also called and referred to as “Kazeem Pele” which featured in the dying declaration. “

Learned counsel submitted that the identity of the actual person named “Kazeem Pele” in the deceased declaration and “Kazeem Ayinde” is incapable of meaning the same thing and that this was not resolved by the prosecution throughout the trial. Counsel submitted that the contradictions and conflicts are substantial and fundamental. Relying on the cases of Archibong Vs. State (2004) 1 NWLR (PT. 855) 488 @ 516 – 517, B – G; Agbi Vs. Ogbeh (2005) 8 NWLR (Pt. 926) 40 @ 119 – 120 H – C; and ASAKITIKIPI Vs. STATE (1993) 5 NWLR (Pt 296) 641 @ 655 G – H, learned counsel urged the Court to resolve the issue of the doubt created by the contradictions in favour of the Appellant.

RESPONDENT’S ARGUMENTS:

S. O. Adeoye Esq., Director Litigation & Advisory Services 1, Ministry of Justice, Oyo State who settled the brief of the Respondent submitted that in the light of the evidence before the lower Court, the identity of the Appellant as the person who matcheted the deceased to death was not in doubt. Counsel argued that the early and persistent mentioning of the name of the Appellant by the deceased to PW1, PW2 and PW4 as his assailant coupled with the fact that at the trial PW1, PW2 and PW4 mentioned the name of the Appellant left no doubt as to the identity of the assailant and pointed irresistibly to be fact that the Appellant was the assailant of the deceased. Learned counsel submitted that the Appellant was well known to PW1 and PW2 as they all reside in the vicinity. He further submitted that ‘Kazeem Pele’ and Kazeem Ayinde’ are one and the same person. Counsel submitted that ‘Pele’ is a tribal mark in Yoruba land and that it is usually 3 vertical lines on the cheeks of a person. He opined that Kazeem Pele means one ‘Kazeem’ that has 3 vertical lines on his 2 cheeks. Learned counsel submitted that there was no contradiction as regards the identity of the Appellant as the assailant of the deceased; and that the issue was not even canvassed at the lower Court. Learned counsel citing the cases of Otti V. State (1993) 4 NWLR (pt. 290) 675 at 676; Ikemson V. State (1989) CLRN 19 @ 20; Archibong Vs. State (2006) 4 NWLR (pt.1000) 349 @ 354; Adepetu V. State (1998) 9 NWLR (pt.565) 185 and Ijiofor V. State (2001) 9 NWLR (pt. 718) 371 @ 373 submitted that the circumstantial evidence adduced pointed to the Appellant and no one else as the perpetrator of the crime and that there was no contradiction in his identity as the person who inflicted severe matchet cuts on the deceased which ultimately led to his death.

RESOLUTION:

This issue with due respect to learned counsel for the Appellant lacks substance in the circumstances of this case. The identity of the Appellant in the instant case was not in doubt and was not even canvassed at the lower Court. The facts of this case are somewhat similar to the case of Archibong Vs. State (Supra) cited by learned counsel for the Appellant. The case indeed supports the Respondent’s views rather than that of the Appellant who sought to rely on the authority. In ARCHIBONG the Supreme Court citation of which is (2006) 14 NWLR (Pt. 1000) 349, the Appellant was checked into a hotel room with the deceased woman by PW3 a waiter in the hotel. After some hours PW3 went to check on the couple and to collect the money due to the hotel as charges were on hourly basis; he found the deceased dead on the floor of the room and the Appellant nowhere to be found. He had absconded. At the hearing, PW3 and another waitress in the hotel PW2 testified that the Appellant was their regular customer who often hired a room in the hotel with the deceased. It was based on their description that the Appellant was arrested by the police. They also picked him out in the midst of policemen in uniform and others in an identification parade. On the issue whether the two prosecution witnesses sufficiently knew the accused person before the date of the incident and correctly identified him as the person who brought the deceased woman to the hotel on the fateful day, the Supreme Court held:

“In a criminal trial, where it is suggested that a piece of evidence casts some doubt in the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records, what aspect of the case becomes doubtful by reason of the evidence. In the instant case therefore, it is plainly illogical to attack the credibility PW2 and PW3 on the identification of the Appellant, when the Appellant himself concedes that both PW2 and PW3 were known to him before the date of the incident in question. In my view, considering the whole circumstances of this case, it was otiose to hold an identification parade. It is not in every case that an identification parade becomes necessary. See Adeyemi v The State (Supra). In the present case, rather than be a case of mistaken identity it was one of recognition and knowledge of the Appellant who was already known to the witnesses prior to the date of the incident in question. The Appellant who by his statement to the police and his evidence admitted the knowledge of him by both PW2 and PW3 can hardly complain of any mistaken identity.”

Similarly, in the instant appeal, the Appellant, the deceased, PW1 and PW3 knew themselves very well. They all lived in the same vicinity and PW3 employed the deceased as a night guard. The deceased identified the Appellant as his assailant by name using all the names by which he was known: Kazeem Ayinde or Kazeem Pele. There was no contradiction, conflict or confusion as to who Kazeem Ayinde or Kazeem Pele was. During the trial at the lower Court, the Appellant did not deny being Kazeem Ayinde or Kazeem Pele or knowing the witnesses. In his evidence at page 39 of the Record, PW1 referred to the Appellant as Kazeem Pele, he was cross-examined but no question was put to him as to who Kazeem Pele was. By failing to cross-examine; the implication is that he accepted that he is indeed Kazeem Ayinde, alias Pele. See IGHALO V STATE [2016] ALL FW R (PT. 858) 617 @ 629 F-G.

The Appellant and his counsel definitely knew that his name is Kazeem Ayinde, alias Pele. The Appellant’s evidence in the lower Court is at pages 51 and 52 of the Record. Therein he admitted knowing the deceased very well. He did not raise any question as to his own identity as Kazeem Ayinde or Kazeem Pele. His defence was an alibi which he was unable to prove. The issues raised in counsel addresses at pages 53 – 57 of the printed Record was as to the admissibility of the dying declaration of the deceased and the authenticity of the alibi set up by the Appellant. No issue whatever arose as to whether the Appellant Kazeem Ayinde was also Kazeem Pele. No doubt, it is the constitutional right of an accused person not to give evidence in his defence and he is entitled to remain silent and demand that the prosecution proves each and every element of the offence charged beyond reasonable doubt. See Abidoye V. Federal Republic of Nigeria (2014) 5 NWLR (PT. 1399) 30 OR ALL FWLR (PT. 722) 1624. If the Appellant herein had elected not to give evidence and his counsel in his address raised the issue that the prosecution having failed to resolve the conflict as to whether the injuries inflicted on the deceased was by Kazeem Pele or Kazeem Ayinde, it would have been a different matter. The Appellant made a statement to the Police admitted in evidence as Exhibit A where he referred to himself as Kazeem Ayinde, alias Pele. The Appellant gave evidence and called one witness. Throughout the hearing the two names were used interchangeably by the witnesses called by the prosecution. Not a single question was put to any of the witnesses under cross-examination in order to create an issue of the matter. On the contrary, he referred to himself as Kazeem Ayinde, alias Pele in his statement to the Police. The clear inference is that both the Appellant and his counsel knew that the Appellant is Kazeem Ayinde, alias Pele. See Adeputu V State (1998) 9 NWLR (PT. 565) 185. The issue of the contradiction not having arisen at the trial, there was nothing for the Court to resolve. Indeed being a fresh point, the Appellant ought to have sought the leave of the Court to raise it on appeal but he did not. Be that as it may, the failure of the trial Court to resolve the alleged contradiction did not lead to a miscarriage of justice. Issue one is resolved against the Appellant.

ISSUE TWO:

Whether the Court below rightly held that the statement ‘Kazeem Pele, Pami o’ Kazeem Pele has killed me made by the deceased to P.W1, P.W2 and P.W4 tantamount to dying declaration.

APPELLANT’S ARGUMENTS:

Mr. Olupona, of counsel on this issue referred to Section 40 of the Evidence Act on dying declaration and submitted that the contradictory versions of the statements allegedly made by the deceased as given in evidence by PW1, PW2 and PW4 did not qualify as dying declaration. Learned counsel relying on the cases of R VS Ogbuewu (1949) 12 WACA 483; Okafor Vs The State (1967) NMLR 189 and Hausa Vs State (1994) 6 NWLR (Pt350) 281 @ 308 E – G submitted that there was no positive proof that the deceased believed himself to be in danger of approaching death as at the time he made the statement. Learned counsel further submitted that even if the Court holds that a specific finding was made by the trial Court as to the admissibility of the statement made by the deceased as a dying declaration, the question is whether there was strict proof of the dying declaration in the exact words used by the deceased. Learned counsel noting that evidence of dying declaration is a special specie of evidence which requires strict proof in order to use it to determine the guilt of an accused person, referred to the various versions of the statement as testified to by PW1, PW2 and PW4 and submitted that the words alleged to be dying declaration are unclear, imprecise and not free from ambiguity. He submitted that the contradictions ought to have militated against its admissibility and the conviction of the Appellant based on it. He urged us to hold that the actual words used by the deceased as stated by PW1, PW2 and PW4 are divergent and uncertain and to set aside the conviction of the Appellant based on them.

RESPONDENT’S ARGUMENTS:

Learned State Counsel, Mr. Adeoye in his reply on this issue set out the provisions of Section 33 (1) (a) of the Evidence Act relating to dying declarations and submitted that the Court below rightly held that the statement ‘Kazeem Pele Pa mio’, ‘€˜Kazeem Pele has killed me’ made by the deceased to PW1, PW2 and PW4 qualified as dying declaration contrary to the claim of the Appellants.

RESOLUTION:

Section 33(1) of the Evidence Act provides:

Statements written or verbal or relevant facts made by a person who is dead are themselves relevant facts in the following cases –

(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.

Dying declaration is obviously as shown above one of the exceptions to the hearsay rule. It is a declaration made in extremity, when the maker is at the point of death and every hope of life is gone; the motive to tell lies is silenced and the mind is induced by the most powerful consideration to speak the truth. R. V Woodcock (1789) 168 ER 353. Under Section 33 above and as held in the case of Osiekwe V The State (1999) 9 NWLR (PT 617) 43 @ 68 for dying declaration to be admissible in evidence the following conditions must be satisfied:

1. The declaration itself which may be written or verbal must be of relevant facts.

2. The declarant must have died before evidence of the declaration is required to be given.

3. The declaration must relate to the cause of death of the declarant or as to any of the circumstances of the transaction which resulted in death and the cause of the declarant’s death must be in question at the trial.

4. The declaration is relevant only in trials for murder or for manslaughter of the declarant

5. The declarant must have believed himself to be in danger of approaching death when making the declaration.

In the instant appeal, the contention of the Appellant is that there was no specific finding as to the words that constituted the dying declaration and that there was no finding that the deceased believed himself to be in danger of approaching death at the time the statements were made. Again with due respect, the view of learned counsel for the Appellant is misconceived and I cannot but disagree with him. PW1, PW2 and PW4 gave evidence of the statement made to them by the deceased. PW1 had testified at page 39 of the Record that he saw the deceased in his pool of blood groaning in pain and that he said: “it was Kazzem Pele who wounded him.” PW2 in his own evidence at page 40 of the record stated “I questioned to know who matcheted him. He said it was ‘Kazeem Pele and his gang”. PW4 at page 43 of the Record testified “At the market I met a man later known as Ayuba in his pool of blood. He was mentioning one Kazeem Ayinde saying ‘Kazeem Ayinde killed me’ Kazeem Ayinde killed me meaning in Yoruba “Kazeem Ayinde pa mi o, Kazeem Ayinde pa mi o”. On the above testimonies the learned trial judge at pages 74 – 75 referring to the conditions for the admission of dying declaration made the following finding:

“I have no doubt in my mind in holding the entire above requirement as existing in the circumstances of the present case.”

(1) the declaration was verbal, PW1, PW2 and PW4 all testified to the words spoken to them by the deceased before his death (2) the deceased who is the declarant in this case had died before the present evidence of prosecution witnesses on same were given. Both Exhibit ‘A’ – the medical certificate and the witnesses particularly PW1, PW2 and PW4 show that the deceased died same day – 16/2/98. The charge was not filed until 1999 and the evidence of witnesses given thereafter. Thirdly the declaration properly relate to the cause of death “Kazeem Pele killed me”. Fourthly, the declaration here is very relevant as it relates to murder. Fifthly the words of the declarant as quoted cannot be interpreted to mean otherwise than that he believed himself to be in danger of approaching death ”i.e. Kazeem Pele pami o i. e. Kazeem Pele killed me”. With the above I find all the tests necessary in dying declaration passed by the circumstances of the present case.”

There are no contradictions in the statements made by the deceased as testified to by PW1, PW2 and PW4. A careful examination of the Record of Appeal and all the documents contained therein confirm that Kazeem Ayinde and Kazeem Pele refer to the same person. At page 11 of the Record in one of the statements made by the accused person, he referred to himself as Kazeem Ayinde, alias Pele. The cautionary statement started with “I Kazeem Ayinde Alias Pele ‘m’ having been cautioned…” In the statement of PW3 at page 25 & 26 of the Record, she referred to the Appellant as Kazeem Ayinde, alias Pele. PW3 has a shop at Oje market opposite the house of the Appellant (page 25). PW3 knew the Appellant well and knew he is Kazeem Ayinde alias Pele. At page 16, the Appellant said “I was so surprised that late Ayuba Karimu said I was the person that killed him with others. I was not the person that killed Ayuba Karimu.” It is obvious then that the name Kazeem Ayinde and Kazeem Pele are used freely and interchangeably. PW1 and PW2 said the deceased told them that the injuries were inflicted on him by Kazeem Pele. To PW4 he said Kazeem Ayinde. The Appellant and his counsel were comfortable with the names and did not complain, because the Appellant was known by those names. Otherwise they would have made a major issue of the point. They would have argued that the deceased said he was wounded by Kazeem Pele and that the Appellant is not Kazeem Pele. No such issue arose during the trial. There was no confusion, query or contradiction as to whether the Appellant was Kazeem Ayinde alias Pele. He is one and the same person. For a contradiction to be fatal to the prosecution’s case it must be material. In Ayo Gabriel V The State (1989) 5 NWLR (PT. 122) 457 @ 468 – 469, the Apex Court observed:

“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them… Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details.”

There is no material difference in the statements that Kazeem Pele or Kazeem Ayinde inflicted the injuries on the deceased. No issue was raised by the Appellant either during investigation or the hearing that he was not Kazeem Pele. On the contrary he admitted that he is alias Pele. I am satisfied that the learned trial judge was right in not making any finding regarding any such conflict as the issue did not arise at the hearing.

Was there positive proof that at the time the deceased made the statements, he believed himself to be in danger of approaching death? The statement “it was Kazzem Pele who wounded him” to PW1 and “I questioned to know who matcheted him. He said it was ‘Kazeem Pele and his gang” to PW2 no doubt do not qualify as dying declarations. There was nothing in the statements to show that the deceased believed himself to be in danger of approaching death. The position is however different with respect to the statement made by the deceased to PW4 at page 43 of the Record: “Kazeem Ayinde killed me, Kazeem Ayinde killed me meaning in Yoruba – Kazeem Ayinde pa mi o, Kazeem Ayinde pa mi o”. Was the learned trial judge right to conclude that the words of the declarant that “ Kazeem Pele pa mi o i. e. Kazeem Pele killed me” cannot be interpreted to mean otherwise than that he believed himself to be in danger of approaching death? The problem however is that in his finding the learned trial judge used Kazeem Pele instead of Kazeem Ayinde actually used by PW4. My candid view however is that given the fact that the Appellant impliedly admitted that he is Kazeem Ayinde alias Pele, the error has not caused such miscarriage of justice as would lead to disqualification of the statement as dying declaration. It is not in doubt from the statement to PW4 by the deceased that at the time he made the statement he believed himself to be in danger of approaching death added to the fact that he died soon after. In the cases cited by learned counsel for the Appellant R VS Ogbuewu (Supra); Okafor Vs The State (Supra) and Hausa Vs State (Supra) similar words were not used. The words “Hausa has shot me” used in Hausa v The State are more like the statements made to PW1 and PW2. The statement to PW4 “Kazeem Ayinde killed me” is in a different class. Clearly the literal interpretation of the words means more than just belief in danger of approaching death. It imports certainty of death. See the following cases: Ikomo V State (1973) 5 SC 231; Akinfe V State (1988) 3 NWLR (PT 83) 729; Akpan V The State (1992) NWLR (PT. 248), (1992) 7 SCNJ 22; Adamu V The State (2014) LPELR-24025(CA); Adegbite V State (2015) LPELR-24272(CA). The declaration of the deceased to PW4 satisfied all the conditions for its admissibility as a dying declaration. Issue 2 is also resolved against the Appellant.

ISSUE THREE:

WHETHER THE COURT BELOW RIGHTLY HELD THAT THE DEFENCE OF ALIBI RAISED BY THE APPELLANT WOULD NOT AVAIL HIM.

APPELLANT’S ARGUMENTS:

This is Appellant’s issue 5. The contention of learned counsel is that once the defence of alibi is set up, the burden rests on the prosecution to investigate the alibi. Counsel submitted that evidence was led to show that the Appellant raised the defence of alibi promptly on arrest and gave details of the alibi. He also gave the Prosecution N2000 to investigate the alibi but it failed to do so. He urged us to reject the evidence of PW6 that he went to Lagos and could not locate the address as he is supposed to have gone with the Appellant who would point out the address. Learned Counsel further faulted the learned trial judge for accepting and believing the evidence of DW1, Appellant’s wife. He submitted that the Appellant was arrested on 18/2/98 at Ibadan as stated by both the prosecution witness and the Appellant himself contrary to the evidence of DW1 that the Appellant was arrested on 16/1/98. Further it was argued that DW1 had stated in her evidence that 13/02/98 was a Sunday, when in fact it was a Friday. Counsel opined that the apparent show of lack of knowledge of relevant dates by DW1 should have led the trial judge to discountenance her evidence that the Appellant was in Ibadan on the night of 15/02/98. Counsel cited and relied on several authorities: Azeez Vs State (2005) 8 NWLR (PT 927) 312 @ 324 A – B; Ubani Vs State (2003) 18 NWLR (PT. 851) 224 @ 233; Umani Vs State (1988) 1 NWLR (PT. 70) @ 274; Nnunukwe Vs. State (2003) 14 NWLR (PT. 840) 219 AT 223; Onafowokan Vs The State (1987) 3 NWLR (PT.61) 538; Dagayya Vs State (2004) 17 NWLR (PT.903) PG. 529. He submitted that the prosecution failed to pin down the accused to the place of commission of the offence; that there was no evidence of any eye witness who claimed to have seen the Appellant at the scene prior to and after the incident; and that none of the prosecution witnesses testified that they saw the accused at the scene of the incident. Learned counsel urged us to hold that the trial judge erred in law in relying on the hearsay evidence of PW4 to pin down the accused to the scene of the crime. He finally urged us to allow the appeal and to quash the conviction of the Appellant, the defence of alibi having not been investigated and controverted by the prosecution.

RESPONDENT’S ARGUMENTS:

In reply learned State counsel submitted that the Court below rightly held that the alibi raised by the Appellant in his defence would not avail him because the Respondent adduced credible evidence which demolished the alibi. He submitted that the Appellant’s contention that the prosecution failed to prove the case beyond reasonable doubt because of its failure to investigate the alibi is not supported by law as failure to investigate the defence of alibi does not always result in the success of the plea especially where the prosecution led evidence fixing the Appellant at the scene of crime. Learned counsel submitted that the Appellant failed to discharge the evidential burden on him to adduce satisfactory evidence of the alibi. He opined that the evidence of the deceased identifying the Appellant to PW1, PW2 and PW4 as his assailant and the evidence of DW1 that she slept with the Appellant on the night of 15/2/98 debunked the alibi. Counsel relied on the case of Monday Odu V. State (2001) 10 NWLR (PT. 722) 688. He urged us to discountenance all the authorities cited by Appellant’s counsel and to hold that the Respondent proved beyond reasonable doubt that the Appellant was not only present at the scene of crime but that he indeed committed the offence.

RESOLUTION:

The law relating to the defence of alibi is trite and certain as there is a plethora of authorities on the topic. By raising the defence of alibi, the Appellant is saying that he was somewhere else when the crime was committed; that not having been at the scene, it was impossible for him to have committed the crime. Being a matter peculiarly within his knowledge, the evidential burden is on him to give details of where he was, who he was with and what he was doing in the place. He must in addition mention the names of people who will testify on his behalf as to his assertions. These details must be provided at the stage of investigation to enable the prosecution verify the claims. See Ibrahim V. State (1991) 4 NWLR (PT. 186) 399; Ikemson V The State (1989) 3 NWLR (PT. 110) 455; Salami V State (1988) 3 NWLR (PT. 85) 670.

The burden then is on the prosecution to demolish the alibi. It can do so in one of two ways: firstly by investigating the alibi, interrogating the persons named by the accused in order to puncture the truth of his assertions. Secondly, by adducing strong and satisfactory evidence that the accused was indeed at the scene of the crime. See the clarifying observation of Nnaemeka-Agu JSC of blessed memory in Ogoala V. The State (1991) 2 NWLR (PT. 175) 509

“Now the word “alibi” literally means “elsewhere.” When an accused person’s defence to a criminal charge is alibi he is saying that he was at another place at the time material to the charge: see Gachi & Ors. V. The State (1965) NMLR 333. It is no proper way of raising the defence of alibi for an accused person to show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed unless he can show that, because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. It is of course when the defence of alibi has been duly raised and the accused person additionally discharged the evidential burden incumbent on him by giving the particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove the alibi is cast on the prosecution. Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi. See on these – Abudu v. The State (1985) 1 NWLR (Pt. 1) 55; Esangbeda v. The State (1989) 4 NWLR (Pt. 113) 57; and Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 131. Once the duty of the prosecution to disprove the alibi arises in the manner I have stated, they can do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence or by calling evidence so strong and connecting the accused person with the commission of the offence charged that his defence of alibi cannot be true: see Ortese Yanor v. The State (1965) NMLR, 337.”

Did the Appellant in the instant appeal discharge the evidential burden on him with respect to his defence of alibi? From the record of appeal, the Appellant did tell the IPO during investigation that he was in Lagos when the offence was committed and claimed to have given him N2000 for a trip to Lagos to investigate the alibi. The particulars given by the Appellant was not sufficient for any meaningful investigation of his alibi. The only evidence on the issue is as given by the Appellant at page 51 of the Record. He testified:

“On 15/2/98 you remined (sic: I received) a message from Lagos saying that a brother of mine living at No. 13 Tajumola Street Orile- Iganmu fell from upstairs and broke his leg. I followed the people to Lagos on 15/2/98. We removed the boy to Ajegunle private hospital. I came back to Ibadan on 17/2/98 with mother (sic: another) wife of mine who is no longer with (sic: me) because of this case.”

No details were provided as to the names of the persons who brought the message to him and who he followed to Lagos, the time on 15/2/98 the message was brought and the time they left for Lagos, the name of his brother who fell from upstairs, the name of the Ajegunle private hospital where the boy was taken to, the name of the other wife he came back from Lagos with. Not a single witness was called to attest to any of the assertions. It is consequently not surprising that the IPO did not bother to investigate as the Appellant failed to discharge on a balance of probabilities the evidential burden on him to adduce evidence of the alibi. The learned trial judge at page 75 of the Record after reviewing the evidence of the Appellant on the issue of alibi observed:

“…His only witness was his wife one Sekinatu Ajike. Apart from many things even going by his own evidence and that of his wife Ajike, his defence of alibi without more cannot stand. While he said he left for Lagos on 15/2/98 and came back on 17/2/98 his wife living with him in Ibadan said her husband, the accused was arrested in their house on 16/2/98 as early as 7.00 a.m. That definitely presupposes that the accused was in Ibadan on the night of 15/2/98 and could not have been in Lagos on 15/2/98 as claimed by him. That apart, the accused failed to call as witness any of those whom he claimed came to call him from Lagos and who he said he followed to Lagos. The evidence of both the accused and his only witness on this point are seriously contradictory. It means one of them must be lying. I am mindful of the fact that the onus on him is on a balance of probability as in civil matters, but same onus I find not discharged at all by him.”

While I accept the submission of learned counsel for the Appellant that the evidence of the Appellant’s wife DW1 as to dates were erroneous; and that the evidence of PW4 about people informing him of sighting the accused on 15/2/98 and at the scene of the crime was hearsay evidence and ought to have been discountenanced; the conclusion of the learned trial judge that the Appellant failed to discharge the burden on him as regards his alibi is unimpeachable. Further, the fact that the only witness called by the Appellant gave evidence contradictory to his own evidence undermined his case to a large extent and exposed both as witnesses whose evidence lacked credibility. To further nail the Appellant on his defence of alibi, the prosecution proved the dying declaration of the deceased. Apart from lack of particulars of the alibi, the dying declaration fixed the Appellant to the scene of the crime and completely neutralized the alibi. Issue 3 is resolved against the Appellant.

ISSUE FOUR:

WHETHER AT THE COURT BELOW THE PROSECUTION PROVED ITS CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.

APPELLANT’S ARGUMENTS:

The Appellant argued the above issue under his issues 3, 4 and 6. Learned counsel referred to what he alleged was the inconsistency in the evidence of PW1 and PW2 and submitted that “Kazeem Pele” is not the same person as “Kazeem Ayinde” and that no proof was adduced by the prosecution that they are the same. Learned counsel further submitted that the evidence of PW2 showed that the deceased was attacked by more than one person; and that the Appellant might not have been among the gang. He argued that the prosecution failed to prove conclusively and beyond reasonable doubt that the accused killed the deceased to the exclusion of other people. He submitted that the lower Court erred in placing reliance on the unsubstantiated testimony of PW3 as regards the charge in the Magistrate Court in order to find motive for the murder of the deceased by the Appellant. Learned counsel citing the cases of Aiguoreghian Vs State (2004) 3 NWLR (PT 860) and Adava Vs State (2006) 9 NWLR (PT 984) further submitted that before an accused person can be convicted for an offence of murder the prosecution must prove beyond reasonable doubt the following:

(i) That the deceased had died;

(ii) That the accused person unlawfully killed the deceased;

(iii) That the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes.

He argued that out of these requirements, the prosecution was able to establish only the first. Counsel citing

SECTION 131(1) EVIDENCE ACT 2011 and the cases of Ubani Vs State (2003) 18 NWLR (PT. 851) 224 @ 229; Asakitikipi Vs State (1993) 5 NWLR (PT 294) 389; Archibong Vs State (2004) 1 NWLR (PT. 855) 488 @ 497; Ilori V. State (1980) 8-11 SC 81 and Igabele Vs State (2006) 6 NWLR (PT 975) 100 @ 109 submitted that whether the evidence is direct or circumstantial, the prosecution must establish the guilt of the accused beyond reasonable doubt. He opined that in this appeal the circumstantial evidence adduced by the prosecution is not cogent, complete, unequivocal and definitely not compelling to lead to the irresistible conclusion that the Appellant and no one else killed the deceased. Counsel finally submitted that the conviction was unsupported by available evidence before the trial Court, and urged us to allow the appeal and quash the conviction of the Appellant.

RESPONDENT’S ARGUMENTS:

Learned counsel in reply submitted relying on the cases of Igabele V. State (2006) 6 NWLR (PT. 975) @ 100; Abogede V. State (1996) 37 LRCN 677 and Gira V. State (1996) 3 LRCN 691 that the Court below rightly held that the Respondent proved beyond reasonable doubt all the ingredients of the offence of murder. Learned counsel submitted that based on the evidence led in the case as shown in the printed record the trial Court was justified in coming to the conclusion that the prosecution proved its case against the Appellant beyond reasonable doubt. Learned counsel set out the evidence led in the case and accepted by the lower Court and submitted that contrary to the impression created in the Appellant’s brief, that the circumstantial evidence pointed irresistibly to the fact that it was the act of the Appellant in inflicting severe matchet cuts on the deceased that led to his death. Learned counsel cited numerous authorities in proof of the fact that all the ingredients of the offence of murder based on circumstantial evidence were satisfied. He urged us to dismiss the appeal.

RESOLUTION:

Learned counsel for the Appellant gave three reasons for his contention that the charge against the Appellant was not proved beyond reasonable doubt as required by law:

(1) That the evidence of PW1, PW2 and PW4 as regards the “dying declaration” of the deceased was contradictory and showed that the deceased may have been matcheted by more than one person;

(2) That the evidence of PW3 on motive for the murder was irrelevant and unreliable;

(3) That the circumstantial evidence adduced was not cogent, complete and unequivocal.

The law is trite that for the prosecution to secure a conviction for murder, certain elements must be established. They are:

(i) That the deceased died;

(ii) That the accused person unlawfully killed the deceased;

(iii) That the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes.

Ogba V The State (1992) 2 NWLR (PT. 222) 174 @ 198; Ubani V State (2003) 18 NWLR (PT. 851) 224 @241; Udosen V State (2007) 4 NWLR (Pt. 1023) 125 @ 146.

Learned counsel for the Appellant conceded that the first element was established. He claimed that neither the second nor the third element was established by the prosecution. It has already been concluded under issue one of this judgment that the Appellant herein unlawfully killed the deceased. As held by the Court below, the identity of the Appellant was not in doubt based on the statement of the deceased to PW1, PW2 and PW4. As already concluded under issue 1, ‘Kazeem Pele and ‘Kazeem Ayinde’ are one and the same person who inflicted matchet cuts on the deceased on 16/2/98 which ultimately led to his death as confirmed by the evidence of the medical doctor PW5. The statement to PW4 is admissible as a dying declaration as the deceased at the time of making the statement believed himself to be in danger of approaching death. The fact that PW2 said in his evidence that the deceased said to him “It was Kazeem Pele and his gang” who matcheted him is of no moment as long as the Appellant participated in the crime. At any rate, the particular statement which qualifies as a dying declaration is the statement to PW4 that “Kazeem Ayinde killed me.” The fact that the Appellant killed the deceased can be established by circumstantial evidence and dying declaration qualifies as circumstantial evidence. The circumstantial evidence must be one which creates no room for doubt or speculation. See Akpan V The State (1992) NWLR (PT. 248). The dying declaration is clear, precise and unambiguous. It left no room whatever for speculation. Learned counsel for the Appellant had submitted at page 22 paragraph 6.17 that the deceased never mentioned in his declaration that Kazeem Ayinde (the Appellant) killed him. Learned counsel by this submission is manufacturing evidence in his brief. The evidence of PW4 Sgt Adeyera Adegoke is at page 43 of the printed record. In paragraph 25 he testified thus:

“At the market I met a man later known as Ayuba in his pool of blood. He was mentioning one Kazeem Ayinde saying – Kazeem Ayinde killed me Kazeem Ayinde killed me meaning in Yoruba – Kazeem Ayinde pa mi o, Kazeem Ayinde pa mi o.”

PW4 was cross-examined but no question was put to him to shake his credit as to the above statement. It is trite that where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. Ighalo V State [2016] ALL FWLR (PT. 858) 617 @ 629 F-G

It is too late in the day for the Appellant to question the truth of the evidence of PW4. The dying declaration proves without any shadow of doubt that it was the Appellant that gave the deceased the matchet cuts that resulted in his death. Right after the dying declaration was made to PW4, they took the deceased to the police station and from there to the hospital where he was pronounced dead. PW5 who prepared and tendered the post mortem report as exhibit W at the lower Court stated in his examination in chief that it was the severe matchet cuts received by the deceased that led to his death. The argument of learned counsel that the evidence of PW5 did not connect the Appellant to the murder is misconceived. The deceased in his dying declaration identified the Appellant as his assailant. The medical evidence of cause of death need not connect the Appellant. All that is needed is proof that the matchet cuts caused the death of the deceased and the evidence of PW5 confirmed that death was as a result of the forcible use of a sharp object on the deceased. The dying declaration of the deceased as narrated by PW4 confirmed that it was the Appellant that inflicted the matchet cuts. It was not necessary that the Appellant should have been seen with a sharp object neither was it necessary for the prosecution to question him on the use of a sharp object. The dying declaration took care of all that.

Now, what is the role of motive in all of this? Learned counsel for the Appellant laboured hard to convince the Court that the evidence of PW3 on motive for the murder was irrelevant and should not have been acted upon by the Court. He had contended that the evidence of PW3 was unreliable, questionable and inconclusive as to whether the robbery charge at the Magistrate Court in which the Appellant was a co -accused person and the deceased a prosecution witness was still pending. In other words, that there was no evidence to prove that the alleged Magistrate Court case in which the deceased was to testify against the Appellant leading to the threat by the Appellant that he would kill the deceased was still pending. As to whether the evidence is relevant, Section 9 of the Evidence Act provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In the case of Ubani V The State (2003) 18 NWLR (PT. 851) 224, the Supreme Court held that “…although proof of motive on the part of the accused on a charge of murder is not a sine qua non to his conviction for the offence, yet if evidence of motive is available, it is not only a relevant fact but also admissible under Section 9 of the Evidence Act.” The evidence of PW3 is consequently relevant in the circumstances. Even if the Magistrate Court case was no longer pending, the relevant question is: “Did the Appellant at any point threaten to kill the deceased on account of his being a prosecution witness in the burglary/robbery charge?” The Appellant in his evidence admitted that PW4 was the IPO prosecuting the burglary charge at the Magistrate Court. PW4 under cross-examination stated that the contents of the petition to the Commissioner of Police which was released to him showed that Kehinde Ilori’s (PW3) and Ayuba (deceased)’s lives were threatened by the accused. PW3 in his evidence-in-chief testified thus:

“I know the deceased. I know the accused too. The deceased was my night guard. My shop is at Ojo. Thieves broke into my shop. I got the guard arrested by the police. It was the guard who gave the accused to the police as one of the robbers of my shop…….The accused threatened my life and so I wrote for an S.O.S to the police at Eleyele…”

The fact that PW3 said the accused threatened his life and he wrote an s.o.s to the Police cannot be interpreted to mean that it was only his life that was threatened by the accused and not that of the deceased. To my mind the purport of the narration of the burglary in his house by PW3 is to show the role the deceased played in the arrest of the accused regarding the burglary. If the accused threatened PW3, it follows that he must have also threatened the deceased as testified to by PW4. The cross-examination of PW4 by the prosecution did not dent his evidence that the deceased wrote a petition to the police about threat to his life by the Appellant. In the case of Oforlette V State (2002) 12 NWLR (PT. 681) 415 @ 436, Achike JSC (of blessed memory) described ‘cross-examination’ as “a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party.” What is the purpose of raising these issues on appeal when the Appellant’s counsel did not do what he needed to do through cross-examination to weaken the prosecution’s case? The lower Court at page 76 of the Record observed:

“What is next for me to consider is whether the accused had the intent to cause the death of the deceased. The evidence of Kehinde Ilori i.e PW3 showed that the accused in the present case was one of the two accused in that Robbery being tried at the Magistrate Court. That while the other accused pleaded guilty to the charge, the present accused in that case did not plead guilty but begged her so that he could be granted bail by the Court, and that the accused promised he would see her stolen goods. While the case was pending, and the deceased being a vital witness in the robbery case had his life terminated by the accused in order to destroy the evidence against him (the accused).

The accused was discharged in the Magistrate Court. PW3 also even testified that before the deceased died, both she and the deceased had petitioned the police over a threat to their lives by the accused. PW4 Sgt. Adegoke confirmed the existence of such a petition. This clearly shows that the killing of the deceased by the accused was premeditated.”

Even if there is some minor misrepresentation of the facts in the above findings of the lower Court, such as the claim that PW3 testified that both she and the deceased petitioned the police as she did not specifically say so in her evidence in Court, it did not lead to any miscarriage of justice. The evidence of PW3 and PW4 support the allegation that the Appellant did threaten to kill the deceased; thereby supplying a motive for the crime. However the primary reason for the summation above by the learned trial judge was to show that the Appellant had the intent to kill the deceased. Such intent can be inferred from the matchet cuts inflicted on the deceased as the definition of murder is the taking of human life with intent to kill or cause grievous bodily harm. See Afosi V The State (2013) LPELR-20751(SC).

The fact remains that as the SC held in UBANI V THE STATE (SUPRA), proof of motive is not a sine qua non to conviction for murder. The crucial point here is whether the circumstantial evidence led by the prosecution, as there is no direct evidence justified the conviction of the Appellant for murder. I agree with the submission of learned State counsel for the Respondent that the circumstantial evidence is unequivocal and irresistibly point to the Appellant as the person who inflicted severe matchet cuts on the deceased which caused his death. The learned trial judge at page 76 of the Record observed:

“Learned counsel for the defence urged me to hold that the circumstantial evidence in this case is not strong and cogent enough to find the accused guilty as charged. I hold this submission as misconceived. Circumstantial evidence is the evidence of all surrounding circumstances relevant to a case in point. I wonder what further proof of circumstantial evidence he expects in the circumstances of this case going by the evidence highlighted earlier in this case. In R v. Onufrejezyk (1955) 1 QB 388 and also The State vs. Emoda Edobor & Ors (1975) 9-11 SC 69 @ 77 it was held that the fact of death is even provable by circumstantial evidence not withstanding that neither the body nor any trace of the body has been found.”

I agree with the learned trial judge. The second and third ingredients of the charge of murder; that the accused person unlawfully killed the deceased; and that the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes were established through the dying declaration of the deceased as testified to by PW4 and the evidence of the medical doctor PW5. The prosecution proved the case beyond reasonable doubt. Issue is resolved against the Appellant. Having resolved all the issues in this appeal against the Appellant, I hold that the appeal lacks merit. It is hereby dismissed. The conviction and sentence of the Appellant is affirmed.

TSAMMANI, JCA

I read before now, the judgment delivered by my learned brother, Chinwe Eugenia Iyizoba, JCA. I agree with the reasoning of my learned brother in the resolution of the issues in this appeal.

I note first of all that the identity of an assailant has always been a critical factor in the resolution of murder cases. From the testimony of the witnesses, as disclosed in the Record of Appeal, the person that inflicted injuries on the victim leading to his death, is said to be Kazeem Ayinde or Kazeem Pele. It should be noted that the deceased in his injured state spoke to P.W.1, P.W. 2 and P.W.4 at different times. The Record also shows that the prosecution witnesses and the Appellant are acquaintances, and that P. W. 1 and P. W. 2 knew the Appellant as Kazeem Ayinde alias Kazeem Pele. The Appellant did not deny that fact and even in his statement to the police described himself as Kazeem Ayinde alias Pele. I do not therefore see the rationale for raising the issue in this appeal.

It is also my view that, having proved the dying declaration, the prosecution had established and connected the Appellant to the assault on the deceased. In other words, the proof of the dying declaration is very relevant to the issue of identity of the Appellant as the person who assailed the deceased with such gravity that it led to his death. The law is that, once the prosecution have been able to advance credible evidence which unequivocally pins the prisoner to the scene of crime, any plea of alibi will not avail him. In the case of Dagayya v. State (2006) 7 NWLR CRt. 980) p. 637, the Supreme Court per Tobi, JSC (of blessed memory) said:

“The defence of alibi crumbles the moment the prosecution gives superior evidence that is more believable evidence than that of the accused, by fixing permanently the accused person not only at the scene of crime, but also in the commission of the crime, in any way that if a photograph was taken at the time, or point of the actus reus of the accused, it will clearly show or depict him in “romance’ with the crime he is charged with. The matter is as exact as that.”

As stated earlier, the finding of the trial Court that the dying declaration of the deceased was proved is unassailable. This fact therefore has effectively dismantled the alibi raised by the Appellant. In any case, the Appellant’s only witness on the alibi raised, pulled the noose tighter round the neck of the Appellant with her testimony that the Appellant was arrested in their house as early as 7.00.a.m on the 16/2/98, while the crime was committed in the night of the 15/2/98. It is therefore without doubt that the alibi put forward by the Appellant did not help his defence.

For the above reasons and the other reasons admirably set out in the lead judgment, I agree that this appeal lacks merit. It is hereby dismissed. The conviction and sentence meted on the Appellant is hereby affirmed.

OKORONKWO, JCA

I have been privileged to read in advance the draft of the lead judgment by my lord Chinwe Eugenia Iyizoba JCA in this case.

Although there was no direct evidence of the killing of the deceased by the Appellant, the trial judge relied on the statements made by the deceased to PW1 and PW2 as he lay in the pool of his own blood that the Appellant has killed him. Such statement led credence to previous threats made in the past by the Appellant which was then considered as a motive and linked the Appellant with the death.

Another rationalization of the statement “Kazeern Pele Pami O” meaning “Kazeem Pele has killed me” is that such statements are declarations forming part of the transaction in issue and accompany or explain the transaction in relation to other circumstances revealed in evidence like previous threat to life. See Section 7 of the Evidence Act. See also Sule Salawu vs. State (1971) 1 MNLR 249 where a number of persons one night heard the deceased cry “Sule is killing me” from a room. The witness rushed into the room and at once saw the deceased in a pool of blood. The Western State Court of Appeal held that the words “Sule is killing me” were admissible as res gestae.

In this case, the words “Kazeem Pele Pami o” and Kazeem and his gang” were admissible as res gestae under Section 7 of the Evidence Act.

In this regard, I agree with the lead judgment which justifies the judgment of the trial Court. I also dismiss the appeal as lacking in merit and affirm the judgment of the lower Court.