DPPF: REPORT OF CONCLUDED CASE IN CHARGE NO CR/178/2014 FRN V IFEANYI NWAIMO & 1 OTHER BEFORE FCT HIGH COURT NO 3 PRESIDED OVER BY HON. JUSTICE ALADE-TOYIMBO
1.1 On 26th day of August, 2014 the two named accused persons were arraigned on a six count charge brought under Sections 97, 221 and 337 of the Penal Code for conspiracy to commit culpable homicide punishable with death, Conspiracy to commit felony to wit: mischief by fire, culpable homicide punishable with death respectively and under Sections 8 and 1(1) of the Advance Fee Fraud and other Related Offences Act, 2006 and they all pleaded not guilty to all the counts.
1.2 Consequently, the Prosecution opened its case and called eight witnesses in all and tendered exhibits which were admitted in proof of its case namely statement of the accused persons, a hammer, a key to Chevrolet Lt Jeep with Reg. No. EKY 743 CJ, one cover of kerosene Jerican, photographs, statement of PW6, Post Mortem and Coroner’s report.
1.3 At the close of the case for the prosecution, the accused persons however chose to enter a No Case Submission.
RULING ON NO-CASE-SUBMISSION
1.4 On the 10th May 2016 and after a careful consideration of the argument of counsel for the prosecution and the defence on the no case submission, the Honourable Court delivered a well-founded ruling stating that a prima facie case has been established against the defendants and ordered them to enter their defence.
1.5 The defendants opened their case and called only two witnesses whereby they both opted to testify for themselves respectively as DW1 and DW2.
REVIEW OF THE FACT OF THE CASE
2.0 On 22/6/2014 a case of fire outbreak at Block 396A, B Close, 36 Road, 3rd Avenue, Gwarinpa Estate, Abuja was reported to the Divisional headquarters of the Nigeria Police, Gwarinpa, Abuja. The two accused persons were arrested in connection with the fire outbreak which resulted in the death of one Mr Remigius Nzekwe. Investigations revealed that the two accused persons conspired to kill the deceased and burn the house in order not to leave any trace of the cause of the death. Their action was informed by the refusal of the 1st accused person to supply the deceased with the seven containers of roofing tiles amounting to Forty Two Million Naira only (N42, 000, 000:00) at Six Million Naira for each container which the deceased ordered and paid to JAYSTEEL Aluminum Company Ltd through the 1st accused person. After the conclusion of the investigation the accused persons were charged before this Honourable Court to face the wrath of the law.
REVIEW OF EVIDENCE OF PROSECUTION WITNESSES
2.1 The two accused persons were formally arraigned on 10/12/2014 wherein they pleaded not guilty to all the counts thereby prompting the prosecution to prove its case as required by law.
2.2 The prosecution in proving its case called eight (8) witnesses and tendered exhibits which were all admitted in evidence in this case.
2.3 PW1- Stephen Margit Malwash was immediately called to the witness box and sworn with the Holy Bible. He told the court that he lives at Block 396, B Close, 36 Road, 3rd Avenue, Gwarinpa Estate, Abuja. He told the court that on 22/6/2014 while he was at home washng his cloth, the 1st accused person opened the gate to the A compound where the deceased resides wile the 2nd accused person was following him behind at about 10 – 11am and they were moving very fast and they entered the B compound. He told the court that but for the fact that he was very familiar with the 1st accused person, he would have stoped them. He said he normally see the 1st accused person with the deceased. It was also his evidence that soon after they entered the B compound, the 1st accused person came out alone. He stated that One Engr. Gabriel stays at the B compound. Thereafter, the Engr came out to send him to buy drinks in the presence of the 1st accused person. He told the court that shortly after he returned and gave the drinks to the Engr. he went to continue his washing and he suddenly heard people shouting “Fire” in A compound where the deceased lives. He told the court that during the pandemonium, he did not see any of the two accused person until when the police came around after the fire was put off by the fire service that he saw the 1st accused person.
2.4 Under cross examination, he stated that he saw the 1st accused when he came out of the B compound and stood by the gate and he did not see him when he came back from where he went to buy drinks and he wouldn’t know where he went to.
2.5 PW2-ENGR. GABRIEL UDEGBE gave fairly long evidence. He was ushered into the witness box and sworn with the Holy bible to speak the truth, he proceeded with his evidence wherein he told this Honourable court that he lives in the same compound with the deceased though he stays in the B wing of the house while the deceased lived in the A wing at Block 396, B Close, 36 Road, 3rd Avenue, Gwarinpa Estate, Abuja. He identified the two accused persons. He told the court that on Sunday 22/6/2014 while in his apartment along with his two female visitors, the two accused person came to his house in the morning and he was also quick to informed the court that that it was the first time the 1st accused person ever came to his house even though he frequent the compound. He also told the court that he was seeing the 2nd accused person for the first time who was introduced to him by the 1st accused person as his cousin who came from Lagos and deals in furniture making. He told this court that he offered them seats but it was only the 2nd accused person that sat while the 1st accused person remained standing by the door even though there were other seats in the room. It was part of his evidence before this court that the 1st accused person asked him to discuss freely with the 2nd accused person about furnishing the house which he was renovating for the deceased. He also told this court that the 1st accused person while still standing unconsciously uttered a statement that ‘’your landlord want to outsmart me’’ even though he was not directly talking to him. He also told the court that because there was no electricity at that time and he was using his personal generator, the 1st accused person gave the 2nd accused person his Blackberry phone to charge it for him and he stepped out and only told them ‘’I’m coming’’ . In his evidence he stated that the 2nd accused person and himself were watching and commenting on the world cup march being shown on the Television while the 1st accused person was away. He further stated that he offered the 2nd accused person together with his two female visitors a hot drink (Hennessy) and went outside to send the PW1 to buy soft drink for him on the request of his two female visitors. He told the court that when he opened the gate, it was the 1st accused person he saw and it was not possible for him to open the gate to its full capacity because the 1st accused person was standing by the gate. It was his evidence that they spoke with the 1st accused person at this point and he handed the money to the PW1 and went back to the house to meet his visitors apparently leaving the 1st accused person still at the gate. He further informed this Court that soon after he offered the visitors the drinks including the 2nd accused person, the 1st accused person rushed back to the compound and informed them in distress that ‘’it looks like if my landlord house is burning’’ and that the landlord house is the next after the fence that demarcated the two houses numbered 396A and 396B. He told the court that he went outside and saw the fire and he thereafter tried to call the deceased’s number but wasn’t available. He stated that while at his sitting room, he noticed that the 2nd accused person was always on the phone sending text messages. The PW2 also informed the court that while they were outside, the 1st accused person was asking for fire extinguisher which he told him he does not have. It was at this point that the PW2 told the court that he resorted to proceed to invite the police and fire service for assistance as their respective stations were not far from the compound. It was the evidence of the PW2 that the 1st accused took an object to break the windscreen of the deceased’s vehicle parked outside the house claiming to be looking for fire extinguisher and the sound of the object was what attracted the neighbours. He told the court that as at the time he came back with the fire service men the fire had not gone far and they were able to put it off.
2.6 The PW2 told the court also that the fire service men asked everyone to stay away while they carry out their duty. It was at this point that they forced the door opened and brought the news that ‘’somebody had died’’ and they invite the police in and the deceased was identified as Mr Remigus Nzekwe. He told the court further that when the wife to the deceased came back from the church to the scene, she saw the 1st accused person and held him by his shirt and he told her that he did not see her husband. He told the court again that he saw the 2nd accused person far off the street and he went to him and he was instructed by the 2nd accused person to take him to the deceased’s wife that there are issues. The witness while back to the scene and discovered a large crowd, then remembered the comment made by the 1st accused person in his room that ‘’your landlord wants to outsmart me” and that it now make sense to him.
2.7 PW2 told the court that it was on this premise that he along with two others went to give statement to the police voluntarily stating what he saw that the police informed them that the 1st accused person had earlier come to the police station to report that PW2 is the 1st suspect in the case.
2.8 The witness informed the court that before the incident happened, the deceased informed him of the facts that himself and the 1st accused person were business partners and that he ordered some containers of goods from overseas through the 1st accused person and moneys were paid but the containers are not arriving and that the deceased informed him that he was worried over that especially that the 1st accused person was not consistent with his stories about the delivery of the goods even though he had told him that the goods had already arrived. The witness in his testimony told the court the circumstances in which the deceased disclosed these facts to him as his Engr. who works for him and money is not forthcoming. The witness also informed the court of the suspicious meeting between the deceased and the 1st accused person scheduled to hold in Lagos over the failed transaction between them. It was also the evidence of PW2 that he was at the station when the police who came from the scene of the incidence brought the car key belonging to the 1st accused person.
2.9 While concluding his evidence, the PW2 told the court that the 2nd accused person called him at about 9:30pm asking him about the position of the case and he told him to contact the police.
During cross-examination by the 1st accused person’s counsel, the witness said he does not know where the accused person left and also, he does not know what the 1st accused person was doing when he left for fire service station.
2.10 Similarly, under cross-examination by the 2nd accused counsel, the witness told the court again that when the fire incident occurred, it was his two female visitors, the 2nd accused person and himself that rushed to the scene.
2.11 PW3 – SYLVESTER CHUKWUDI he told the court how he got to know about the incidence and what he observed about the reactions of the 1st accused person at the scene of the incident arising from the information he gathered from the wife of the deceased and the lawyer living opposite the deceased as well as the step he took to inform the police DCO.
2.12 During Cross-examination by the 1st accused person counsel, he stated that he never knew the 1st accused person prior to the incidence. He was not cross-examined by the counsel to the 2nd accused person.
2.13 PW4 – EZE CHINYERE: The witness after being sworn with the holy bible to say the truth, she was introduced as the Secretary/Accountant to Remicorn Alminium Nigeria Ltd a company belonging to the deceased located at Idu Industrial Area, she also identify the 1st accused person but could not identified the 2nd accused person. She testified to the effect that the 1st accused person is the Marketing Manager of JAYSTEEL Roofing Tiles Company being the company that supply goods to their own company. She further testified that the company (JAYSTEEL) started supplying them goods since sometimes in 2013 untill March, 2014 when the deceased informed him that she should prepare a list of all the items they needed which the company through the 1st accused person promised to supply to them at a lesser price and she did list about five containers at Six Million Naira each (N6,000,000:00) totalling Thirty Million Naira (N30,000,000:00) which was paid for through the account number supplied by the 1st accused person and the containers were yet to be supplied. It was the testimony of the PW4 that the deceased became worried two months after the payment of the sum and no supply was made and the deceased complained to him.
2.14 She also gave evidence about the suspicious meeting asking the deceased to come to Lagos and see at the ware house where the goods were brought in their company’s name, he told the court that on reaching Lagos, the deceased called him on phone and informed him that no goods written in his company’s name and the goods he saw does not belong to him.
2.15 PW4 further told the court that upon his return from Lagos, the deceased showed her a text message which reads as follows: ‘’we are in short of cash, pay for two more containers so that the goods will arrive together’’ and that her Boss paid for additional Twelve Million Naira (N12, 000, 000: 00) for the two containers making it seven containers. She stated that the additional N12, 000, 000: 00 was paid into the account supplied by the 1st accused person again (Bringing a total of N42, 000, 000:00). The witness stated in her evidence that after the payment, the 1st accused person claimed that the containers are on the way to Abuja and that the vehicles developed mechanical problem on the way and they waited for a week and they did not see the goods and the seven containers were never supplied till the death of the deceased.
2.16 It was also the testimony of PW4 that her Boss became so worried and then he received a text message from the company that there is going to be a meeting on 22/6/2014 at 12pm and she told the court that she read the text message but she did not know who sent the text message to his Boss’s phone. The witness told the court that on the said date 22/6/2014 around 12pm – 1pm she received a call that fire was burning in her Boss’s house and she proceeded to their factory to confirm if there was any incidence of such and while at the factory, she received another phone call directing her to her Boss’s house that he had been killed.
2.17 Under Cross-Examination by the 1st accused person counsel, PW4 told the court that her late Boss did the payment of N30, 000, 000: 00 for the six containers. She further stated that it was her late Boss that informed her whom she said never hid anything from her. She also stated that the money was paid to JAYSTEEL Roofing Company Ltd. She testified also that she did not know that her Boss paid the N12, 000, 000:00 until she was told too and she put it down in writing and submitted the record to the family of the deceased.
2.18 The Counsel to the 2nd accused person did not cross-examine the witness and she was therefore discharged by the court.
2.19 PW5 – SERGENT DANJUMA ATAMA: The witness sworn by the Holy Bible to tell the truth and he proceeded by introducing himself as a sergeant attached to Gwarinpa Divisional Police Headquarters, FCT Command, Abuja. He identified the two accused persons. He stated that while he was on duty on 22/6/2014 at about 11:45am at his duty post he received a distress call that house No 396, B Close, Road 36 off 3rd Avenue Gwarinpa Estate was on fire, the DCO SP Bello led the team of Police officers to the scene of the crime. He stated that they met men of Fire Service on arrival trying to put off the fire in the house and the DCO SP Bello Olatunji ordered that the scene be cordoned to avoid people tampering with the scene of the crime. He further stated that after the fire was finally put off by the men of the fire service, the DCO and himself entered the partly burnt sitting room of the house and discovered a burnt lifeless human body closed to one of the chairs in the sitting room, he stated that on close observation of the body they observed that his head was broken and was full of his blood which created a suspicion that somebody must have killed him before setting the house on fire and he took photograph of the deceased with his mobile phone. The witness further testified that while they continued with their investigation, they recovered a harmer at the entrance of the sitting room and also the photograph of the harmer was taken. He also informed the court in his evidence that a cover (cork) of gallon was recovered at the sitting room and the gallon which contains a small quantity of kerosene which he personally smelt.
2.20 The witness told the court that the burnt lifeless body was later discovered and identified as one Remigus Nzekwe by his wife Mrs. Nzekwe and the corps was directed to be moved to the Wuse General Hospital where he was confirmed dead by the Doctor on duty and the body was deposited at the mortuary for further investigation. He stated that he was instructed by the DCO Bello to return to the scene of the crime and on his arrival he was shown a car key covered with ashes and close to where the burnt body was removed and that the photograph of the key was taken by him too using his mobile phone. He stated that the investigation later revealed that the said key belongs to the 1st accused person for his Chevrolet Jeep parked opposite the deceased person’s house also that the photograph of the jeep was also taken by him using his mobile phone, He told the court that the 1st accused person volunteered a statement under words of caution which he signed and the witness also counter signed, at this stage of the trial the witness identified the statement and the statement was admitted in evidence as Exhibit A without any objection by the 1st accused person. In concluding his evidence, he tendered the following exhibits which were admitted and marked as exhibits:
• Harmer – Exhibit B
• The Chevrolet car key – Exhibit C
• The Cork or cover of the can – Exhibit D
• Chevrolet Jeep (silver colour) Reg. No EKY 743 CJ – Exhibit E and
• The pictures as Exhibit F1 – F14
2.21 During cross-examination by the 1st accused person’s counsel, the witness stated that he met the fire service men trying to put off the fire. He further stated that he cannot explain what had happened prior to his arrival at the scene of crime. He further stated that Exhibit F3 and F14 were at the scene of crime. The scene of crime was burnt down. He also said that he recovered the exhibit at the scene of crime. He also told the court that the scene of crime was not burnt completely. When shown exhibit C, the witness testified that it was not burnt.
2.22 The witness was not examined by the counsel to the 2nd accused person.
2.23 PW 6 – MRS TINA NZEKWE: Sworn by the Holy Bible to speak the truth. Consistent with the evidence of PW4, the witness testified that she is the wife to the deceased and she lives in the same premises with the deceased at 36 Road, 3rd Avenue, Gwarinpa. She only identified the 1st accused person as a business partner of her deceased husband. She stated that the 1st accused person is a manager to JAYSTEEL Aluminum Company Ltd. In her evidence, she testified that sometimes in early June, 2014 her husband informed her that he was worried that the goods he ordered from JAYSTEEL Company worth Forty Two Million Naira (N42, 000, 000:00) for seven container was not supplied. She stated that the money was paid to the JAYSTEEL Aluminum Company Ltd through the 1st accused person. The witness further stated that her husband was invited to Lagos by the 1st accused person for a meeting in respect of the goods and the meeting ended up being a failed one as no result was achieved and the meeting was rescheduled to take place in Abuja. She told the court that the meeting was earlier scheduled to take place on Sunday 15/6/2014 was again rescheduled for Sunday 22/6/2014 and he told the court that she asked the husband the reason behind fixing meetings on Sundays and he told her that Sunday is always the choice of the 1st accused person being the convener of the meeting.
2.24 It was her testimony too that the 1st accused person was in their house on Saturday 21/6/2014 and she served them breakfast before leaving for her business. The witness also told the court that, she came back home and met a meat-pie and she called the husband who told her that the meat pie belongs to the 1st accused person and that he forgot same. The witness told the court again that when she came back from her business her husband told her that the 1st accused person visited the house again that evening to remind him of the meeting scheduled for the next day 22/6/2014. In her testimony, she told the court that in the morning of the 22/6/2014 they decided that her husband should go for 8am mass while she goes for 10am mass to enable him meet up with his appointment later in the morning. She also testifies how the deceased met her in the church to collect the house key at about 10am in the church. The witness stated that not long after they left, there was an announcement in the church that the house of Mr Remigus Nzekwe was on fire and she rushed out of the church back home and witness the incidence. Earlier, the witness testified that her husband came to the church along with the 1st accused person in the latter’s car describing it as Silver colour Jeep. She told the court how she was prevented from entering the house by the Police while the fire service was making efforts to put the fire off. She also told the court that while she turned, she sighted the 1st accused person and held by the shirt asking him the whereabouts of her husband and that while that was going on, she noticed that the 1st accused person smelled alcohol before she was separated with him by the crowd. It was at this point that the PW6 told the court how she met her husband lying in the sitting room lifeless and that there was no light from the previous day. She said that apart from the two of them in the house, no any other person was staying with them as all their children were grown up while some are in the university, some are in the boarding house. And that they do not have harmer in their house. She also said that the goods that were to be supplied by the 1st accused person were never supplied.
2.25 During Cross-examination by the 1st accused person’s counsel, PW6 stated that the 1st accused person was her husband’s business partner and she is not in a position to know all the businesses they did together. She confirmed that she made statement to the police on 26/6/2014 and the said statement was tendered and admitted in evidence and marked as Exhibit G. Finally, the witness stated that she was inside the church so she wouldn’t know what happened in their house that resulted to the death of her husband.
2.26 The counsel to the 2nd accused person did not cross-examine the witness hence she was discharged by the court.
2.27 PW7 – OMANG C. OMANG: sworn with the holy Bible to speak the truth. The witness introduced himself as an Abuja based Lawyer and he lives at House No 5, B Close off 36 Road Gwarinpa Estate, Abuja, he identify the deceased as his neighbour describing the house of the deceased as directly opposite his. Corroborating the evidence of other prosecution witnesses, the witness testified that on Sunday 22/6/2014 he attended the same church with the deceased at the Holy Cross Catholic Church, Gwarinpa, Abuja a 8:00am and that the deceased sat directly behind him in the church. After the church service, they exchanged greetings and walked together to the car and dispersed. It was his evidence that while he was at home in his sitting room, he received a call and because of the noise of his children, he decided to step outside to receive his call. He stated that while he was outside under a mango tree beside the deceased’s second compound when he saw the deceased drive in and park his ML Mercedes SUV car in front of the compound, while another car drove behind him and parked by his own side beside his gate. He identified the car as a Chevrolet Space Bus and he stated further that three young men including the 1st accused came out of the car. He emphasised that he only took particular notice of the 1st accused person because he wore an orange T-Shirt on that day. In his testimony, PW7 testified that all the three occupants of the car and the deceased entered the deceased’s compound and came out almost immediately and including the deceased and it was about 10:30am. The Four of them entered the Chevrolet space bus and drove out of the street. He stated that as soon as he finished answering his call, he went back into his house took his lunch and went to take a snap, 30 minutes after, his wife woke him up that the deceased’s house was on fire and he rushed to the scene. He stated that while they were looking for the solution to the fire outbreak, the fire service had come and rescued the situation only to discover that the deceased was killed and burnt in the house.
2.28 During cross-examination by the 1st accused person counsel, the witness reiterated that he has never seen the 1st accused before, and that he did not see the deceased when he returned to the house as well as the 1st accused because he had already gone inside his house.
2.29 The 2nd accused person counsel did not cross-examined the witness hence the court discharged PW7.
2.30 PW8 – ASST. SUPRETENDANT OF POLICE JOHN OTACHE: He was sworn to speak the truth. He told the court that he is attached to criminal investigation and Intelligence Department of the FCT Police Command, Abuja. He identified the two accused persons. He further stated that as a member of the investigating team that investigated this case, he was responsible for conveying the corpse of the deceased to the National Hospital for Post-mortem and preservation and that the postmortem was carried out by one Dr. Sidi. He told the court the reason why the pathologist was not in court. In his testimony, he told the court that the pathologist was one of the victims of the mass death that happened in 2015 Hajj in mecca, Saudi Arabia. He however tendered the medical report prepared by the pathologist before his death after the postmortem. The post mortem report was dated 1st day of July, 2014 was admitted and marked as exhibit H.
2.31 None of the counsel cross examined the witness
2.0 Having successfully concluded the case and adopted our final written addresses the court delivered its judgement on Tuesday 31st January, 2017 and convict the 1st accused person/convict and the 2nd accused person was discharged and acquitted having not established a case of conspiracy against him.
3.0 The court thereafter sentenced the convict death by hanging and ordered that his Chevrolet Jeep be forfeited to the family of the deceased as compensation.
Humbly, submitted to Elombah.com by the Prosecuting counsel, Labaran Shuaibu Magaji.