IN THE HIGH COURT OF ONDO STATE

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

CHARGE NO: HC/……………../2023

BETWEEN

THE STATE

AND

MR. OKORO
MR. PHILIP DEFENDANTS
MR. SAM

DEFENDANTS FINAL WRITTEN ADRESS

SETTLED AT:
TEAM: ARTHUR JARVIS UNIVERSITY ( DEFENDANTS)

EJE

E. J. EKWERE ESQ.
P. N. ERIM ESQ.
H. E. NYEN ESQ

FOR SERVICE ON:

THE PROSECUTION COUNSELS

I.O AKEREDOLU ESQ.

C.E JOSEPH ESQ.

O. H VICTOR ESQ.
 IN THE HIGH COURT OF ONDO STATE

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

CHARGE NO: HC/……………../2023

BETWEEN

THE STATE

AND

OKORO
PHILIP DEFENDANTS
SAM

TABLE OF CONTENT

DEFENDANTS’ FINAL WRITTEN ADDRESS

1.0 INTRODUCTION ………………………………………………………………………

2.0 BRIEF FACTS OF THE CHARGE AND EVIDENCE LED AT TRIAL…………..
3.0 ISSUES FOR DETERMINATION ……………………………………………………
4.0 LEGAL ARGUMENT ………………………………………………………………….
4.1 ISSUE ONE ………………………………………………………………………
4.2 ISSUE TWO …………………………………………………………………………
4.3 ISSUE THREE …………………………………………………………………………
5.0 SUMMARY/ CONCLUSION ………………………………………………………….
6.0 LIST OF AUTHORITIES ………………………………………………………………
6.1 LIST OF STATUTUES………………………………………………………………
6.2 LIST OF CASE LAWS ……………………………………………………………….
1.0 INTRODUCTION
1.1 My Lord, on the 31st of March, 2023, the defendants were arraigned before this honorable
court for the murder of Chief Ezenwo and they pleaded not guilty to all the counts in the
current charge.
1.2 After their plea, trial proceeded with the prosecution opening and closing its case.
Similarly, the defense opened and eventually closed it case on the 2 nd of June, 2023. With
this, this court ordered that final addresses be filed in compliance with the rules governing
this proceeding. Hence, the defendants have filed their final address accordingly.

2.0 BRIEF FACTS OF THE CHARGE AND EVIDENCE LED AT TRIAL

THE PROSECUTION’S CASE

2.1 My Lord, the charge sheet before this Honorable Court and the evidence led by the
prosecution alleges that the Defendants committed the offence of murder, under section
316 of the criminal code.

2.2 The prosecution has maintained that on the 3rd day of February, 2023; the defendants
dragged Chief Ezenwo into a bus Hiace, after which, the said chief went missing.

2.3 To prove that the accused actually dragged the Chief into a Haice bus, the prosecution
procured a CCTV footage showing the accused dragging the victim into a bus Haice with
plate number ABJ 240 XA.

2.4 The first and second accused persons (DW1 and DW2) made further statements admitting
to the dragging of the Chief into the Haice bus for questioning.

2.5 The accused persons stated that they only dragged him to the bus to ask him a series of
questions relating to their sister who was the girlfriend of Chief, who has also gone
missing since she threatened to release a sex video of Chief if he doesn’t give her the
money she requested for.
 2.6 They further stated that after the interrogation, they released him to go without wasting
anymore time because they had nowhere to keep him.

2.7 The third accused however in giving a dramatic turn, made no statement admitting to any
facts. He claims to have been out of town as at the material time of the case.

2.8 Relying on the circumstances and the evidence procured by the prosecution, the
prosecution is of the firm opinion that although the body of the Chief is not found and as
such the cause of death unknown, the accused persons are liable for the murder of the
Chief.

2.9 To establish these facts, the prosecution tendered the CCTV footage, alongside the
statements of the accused persons as evidence to prove his case.

2.10 Most respectfully, My lord, I humbly submit that the accused persons in giving oral
submissions did not at any point, state or admit to the offense of the murder of Chief
Ezenwo and neither did the prosecution establish the ingredients which form or constitute
a murder.

THE DEFENDANT’S CASE

2.11 The defense opened its case by calling the 1st defendant, Philip (DW1) and progressively
the 2nd defendant, (DW2), who in their evidence in chief stated that that they only dragged
him (ie the Chief ) to the bus to ask him a series of questions relating to their sister who
was the girlfriend of Chief, who has also gone missing since she threatened to release a
sex video of Chief if he doesn’t give her the money she requested for.

2.12 They further stated that after the interrogation, they released him to go without wasting
anymore time because they had nowhere to keep him.

2.13 The third defendant however stated that as at the material time, He was not in town. He
claims to have travelled to Port harcourt to see his girlfriend who was celebrating her
birthday.
3.0 ISSUES FOR DETERMINATION
3.1 My Lord, from the facts of this charge and the evidence led as summarily stated above
and more diligently reflected in the record of this court, we respectfully submit that there
are three sole issues arising for determination. These issues are:

1. WHETHER OR NOT THE CCTV CAPTURE OF THREE ACCUSED PERSONS

AMOUNT TO COMMISSION OF MURDER.

2. WHETHER OR NOT THE CONFESSION OF THE TWO ACCUSED AMOUNT TO

THE CAUSE OF DEATH OF THE ACCUSED.

3. WHETHER OR NOT THE CONFESSION OF CO ACCUSED CAN BE USED

AGAINST HIS CO ACCUSED.

4.0 LEGAL ARGUMENTS

4.1 ISSUE ONE

WHETHER OR NOT THE CCTV CAPTURE OF THREE ACCUSED PERSONS
AMOUNT TO COMMISSION OF MURDER.
1. My lords, the first issue distilled before this honorable court, is whether or not the CCTV capture
of the three accused persons amounts to the commission of murder.

2. My lords, the definition of the term ‘murder’ is succinctly provided for in the extant and clear
provisions of SECTION 316 OF THE CRIMINAL CODE which states:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following
circumstances, that is to say‐
(1) if the offender intends to cause the death of the person killed, or that of some other person;

(2) if the offender intends to do to the person killed or to some other person some grievous harm;

(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which
act is of such a nature as to be likely to endanger human life;
 (4) if the offender intends to do grievous harm to some person for the purpose of facilitating the
commission of an offence which is such that the offender may be arrested without warrant, or for
the purpose of facilitating the flight of an offender who has committed or attempted to commit
any such offence;

(5) if death is caused by administering any stupefying or overpowering things for either of the
purposes last aforesaid;

(6) if death is caused by wilfully stopping the breath of any person for either of such purposes, is
guilty of murder.

In the second case it is immaterial that the offender did not intend to hurt the particular person
who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last cases it is immaterial that the offender did not intend to cause death or did not
know that death was likely to result.”

3. My lords, having graced this honorable court with the statutory definition of murder, it is pertinent
to determine whether or not the CCTV capture of the three accused persons amounts to the
commission of same.

4. My lords, in establishing whether or not the CCTV capture of the three accused persons amounts
to the commission of murder, it is sacrosanct and of utmost importance to determine and bring to
the lime light, the ingredients which make up a commission of murder.

5. My lords, in the Supreme Court case of AKINYEDE OLIAYA V. THE STATE (2018) 10
NWLR the supreme court in establishing the ingredients of a murder stated that
“ To convict a person charged with murder under section 316 of the criminal code, the
prosecution must prove beyond reasonable doubt;
a. The death of a human being
b. That the death was caused by the acts of the accused
 c. That the act or acts were done with the intention of causing death, or that the accused
knew that death would be the probable consequence of his act or omission.”

6. My lord, to further consolidate what elements constitute the commission of murder, your learned
brothers in unanimously deciding the case of UCHE NWODO V. THE STATE (2019) NWLR
229, held that
“The prosecution must prove the three elements of the offence of murder beyond reasonable
doubt, that is:
a. That the deceased died;
b. That the death of the deceased was caused by the accused; and
c. That the accused intended to either kill or cause the deceased grievous bodily harm.

Furthermore, the court held interalia that the three elements of the offense must co-exist at the
same time and if not the accused is entitled to be acquitted of the offense. ADAVA V. THE
STATE (2006) 9 NWLR (PT. 1069) 630; ASUQUO V. STATE (2016) 14 NWLR (PT. 1532)

7. My Lord, as established by your learned brothers, these elements must co- exist at the same time
and if not the accused is entitled to be acquitted of the offense. My Lord in the case before this
honorable court, these fore mentioned elements are not present and do not co-exist at the same
time as such neither the actions nor the CCTV capture of the defendants amount to the
commission of murder.

8. My Lord, on the first ingredient as distilled in the above mentioned case; that the deceased died, it
is the defendants humble submission that the deceased has not been confirmed dead and as such it
is a mere assumption on the part of the prosecution, that the Chief is dead. My lord, for the
beautiful purpose of buttressing this point, it is pertinent to note that the chief is merely missing.
For a person to die, there has to be a murder weapon or a cause of death and this is glaringly
absent from the case, my lord. My Lords, not only is the murder weapon not available but the
supposed deceased body is absent too. The CCTV capture on which the prosecution builds his
whole case on did not show whether or not the victim was alive. The CCTV only captured that the
accused persons dragged the Victim to a bus, hence death is still not established. Furthermore, the
CCTV capture did not show how the supposed victim died, neither was the corpse captured nor a
murder weapon captured.
9. In the case of STATE V. EKUMA (2022) 18 NWLR 13, the court held that an accused may still
be convicted by the court, even though the dead body cannot be found, provided that there is
sufficient compelling circumstantial evidence to lead to the inference that the man had been killed.
The circumstantial evidence should be so cogent and compelling as to convince a court or jury that
on no rational hypothesis other than murder can the facts be accounted for.

10. My lord, relying on the confessional statement of the accused, at no point, did any of the accused
state that the Chief was deceased and of blessed memory. In corroborating and in giving further
explanation on what the CCTV capture consists, the first and second accused persons admitted to
dragging the supposed victim to a bus inorder to question him on the whereabouts of their sister.
This presupposes that as at the time of the CCTV capture, the Chief was alive and well. The 1 st
and 2nd accused also stated categorically that they released the Chief to go without wasting any
more time. This clearly goes to show and establish that there is no evidence as to the death of the
accused and as such the first ingredient which is whether or not the deceased died is negated as the
Chief is only missing but not dead.

11. My lord, as stated above in paragraph 9, the circumstantial evidence must be cogent and
compelling. My lord, this is very far from the circumstances surrounding the disappearance of the
accused. My Lord, there are lots of lacuna and loop holes in the circumstances from which the
offense of murder is to be inferred from, as such the circumstantial evidence cannot be said to be
cogent and compelling, proving beyond reasonable doubt the grounds on which the court should
convict the accused. The circumstances leave a lot of question marks, thereby giving room for
speculations and assumptions. FATOYINBO V. A.G WESTERN REGION (1966) WRNLR 4

12. There was no murder weapon identified with the accused, neither was there a clear intention to kill
the Chief, considering that the accused persons suspected the Chief to be with their sister, as such
it would be very unreasonable to kill the one person who supposedly knows the whereabouts of
your sister. Also, on the grounds of corroboration, as at the time of the CCTV capture the Chief
was alive. It is on this premise that the defendants humbly submits that the accused persons cannot
be convicted on circumstantial evidence as the circumstances surrounding this suit is not sufficient
enough to establish the death of the Chief. ARCHIBONG V. THE STATE (2006) 14 NWLR
(pt. 357).
13. My lords, according to SECTION 164 OF THE EVIDENCE ACT, 2011 which provides
succinctly what constitutes the presumption of death;

(1) A person shown not to have been heard of for seven years by those, if any, who if he had
been alive would naturally have heard of him, is presumed to be dead unless the
circumstances of the case are such as to account for his not being heard of without assuming
his death; but there is no presumption as to the time when he died, and the burden of proving
his death at any particular time is upon the person who asserts it.

Going by the provisions of the above section of the Evidence Act, it is clear that in the case
before this honorable court, there is no room for the presumption of death, as the supposed victim
has not been missing or incommucando for up to a year. The evidence act, states that before one
can presume the death of a person he or she has to have been absent for 7years. STATE V.
OKECHUKWU (1994) 9 NWLR (pt. 368) 273; OLUDE V. THE STATE (2018) 10 NWLR
(pt. 1627) 292.

14. My lord, in relating the first ingredient to be established in the commission of murder to the CCTV
capture, the defendants unequivocally state that the first element of murder is absent from the
CCTV capture.

15. Additionally, my lord, the onus is on the defendants to prove the death of the accused person and
they have woefully failed at establishing this fact. It is on this premise that the defendants,
reinstate that the deceased did not die.

16. My lord, the second ingredient which makes up or constitutes the commission of a murder, is that
the death of the deceased was caused by the acts of the accused persons. My lord, as earlier stated
there was no death. The prosecution, who asserts the death of the supposed victim has done a
terrible job at proving same. My lord, still on the grounds that there was no death, the acts of the
accused persons did not cause the death of any person as there is no death ab initio. Still relying on
the CCTV capture, the only acts of the defendants shown is the dragging of the accused person to
the bus for questioning. My lord, this implies that the accused persons needed the victim alive, so
it is then established that the act of dragging the supposed victim could not have amounted to the
death of the Chief. In the case of UBANI V. THE STATE (2003) 18 NWLR (pt. 229) pg. 244
para B-D, EDOZIE JSC stated that:
 “Having regard to the circumstances of this case particularly the fact that three years after the
incident, the deceased has not been found,… the inference is irresistible that he is dead; that it was
the act of his assailants that caused his death and judging from the nature of the attack and the
lethal weapons used…”.
My lord, in this case, the circumstantial evidence from which the inference of the presence of the
death of the victim is being undoubtly drawn from is very convincing. Also, the acts of the
assailants which lead to the death of the victim was also established. These however is not the case
in the suit before this honorable court, thereby negating the second ingredient of murder as it
pertains to the CCTV capture. JOSEPH LORI V. STATE (1980) 8-11 SC 52 at 61

17. My Lord, to the third ingredient which makes up or constitutes the commission of murder; the
prosecution must prove beyond reasonable doubts that the accused intended to either kill or cause
the deceased grievous bodily harm. My lords, relying on the statement of the accused persons and
the circumstances surrounding the case, the accused persons did not intend to kill or cause
grievous harm to the supposed victim. The accused persons merely dragged the supposed victim to
the bus for questioning as they suspected that Chief was in custody of their sister.

18. The element of intention stands negated because, critically looking at the case before this
honorable court, the accused persons needed the chief to be alive and well in order to know the
where about of their sister. It is on this grounds that the defendants solemnly resolves that the third
ingredient of murder is also glaringly absent and a mere CCTV capture showing the victim being
dragged by the accused persons cannot be used to infer the intentions of the accused persons.

19. My Lord, having crystalized the ingredients which make up the commission of a murder, whereas
all these components are absent in the case before this honorable court, it is safe to say that there
was no commission of murder in the suit and as such the CCTV capture of the three accused
persons cannot amount to commission of murder. ABOGEDE V. THE STATE (1996) LPELR-
45; MUHAMMAD V. THE STATE LGC (13/4/ 2017) E

20. My lord, in the case of HARUNA V. THE ATTORNEY GENERAL OF THE FEDERATION
(2012) 9 NWLR (pt.419), the supreme court in establishing the doctrine of ‘last seen’ held that
‘The doctrine of Last seen with a deceased bears full responsibility for his death. Thus, where an
 accused person was the last person to be seen in the company of the deceased and circumstantial
evidence is overwhelming and leads to no other conclusion, there is room for acquittal’.

21. My lord, relying on this decision of the Supreme court, the supposed victim has to be dead and as
such the person whom he or she was last seen with would have to offer an explanation of what he
knows about the death of the deceased. In the case however before this honorable court, there is no
deceased person as the prosecution has failed to establish the death of Chief Ezenwo. Relying on
circumstantial evidence, the circumstances surrounding the case before this honorable court are
not conclusive and convincing enough to infer the death of the Chief.

22. My Lords, furthermore, in addressing the admissibility of the CCTV capture, we would be making
reference to the extant provisions of Section 84 of the Evidence Act. Section 84 (1) of the
Evidence Act provides thus:

‘In any proceeding, a statement contained in a document produced by a computer shall be

admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if
it is shown that the conditions in subsection (2) of this section are satisfied in relation to the
statement and computer in question.
(2) The conditions referred to in subsection (1) of this section are
(a) That the document containing the statement was produced by the computer during a
period over which the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period, whether for profit or not,
by anybody, whether for profit or not, by anybody, whether corporate or not, or by any
individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course
of those activities information of the kind contained in the statement or of the kind from
which the information so contained is derived.
(c) That throughout the material part of that period the computer was operating properly or,
if not, that in any respect in which it was not operating properly or, if not, that in any
respect in which it was not operating properly or was out of operation during that part of
that period was such as to affect the production of the document or the accuracy of its
contests; and
(d) That the information contained in the statement reproduces or is derived from
information supplied to the computer in the ordinary course of those activities.
23. My lords, Section 84(2) (a) focuses on the reliability of the computer. It attempts to ensure that the
computer from which a document was generated is reliable. The reliability is established on the
facts that there is evidence to show that it was used regularly to store or process information for
the purpose of activities regularly to store or process information for the purpose of activities.

24. My Lords, section 84(2) (b) focuses on the establishment of the fact that the computer did exactly
what it was instructed to do and the document produced in court consists of what was fed into the
computer. Section 84(2) (c) addresses the issue of whether or not the computer malfunctioned.
Finally, Section 84(2) (d) requires that the information contained in the statement was supplied to
computer in the ordinary course of its normal use similar to the condition under section 84(2)(a).

25. My lords, where as the prosecution have not established the facts contemplated in paragraph 22,
23 and 24 of the Defendants final address, and have not complied with section 84(4) of the
evidence act, which provides for the tendering of a certificate to further authenticate an electronic
document, it is the defendants humble resolve that the CCTV capture cannot be admitted as
evidence, in the suit before this honorable court.

26. My lord, having succinctly and meticulously buttressed our arguments, it on this foundation that
we humbly submit that the CCTV capture does not constitute the murder of Chief Ezenwo and
same is not admissible as evidence in the suit before this honorable court.

4.2 ISSUE TWO

WHETHER OR NOT THE CONFESSION OF THE TWO ACCUSED AMOUNT TO
THE CAUSE OF DEATH OF THE ACCUSED.

1. Most respectfully My Lord, we submit that in criminal cases such as the extent case, the law is
settled that the burden of proof lies on the prosecution SECTION 135 (C) AND (2) OF THE
EVIDENCE ACT 2011. It must be emphasized here that the burden of proof is always on the
prosecution to prove all the a forelisted elements of the offence of murder and the standard of
such proof is beyond reasonable doubt FRANK UWAGBOE V THE STATE (2008) 12 NWLR
 (PT. 1102)621. It is appropriate to stress here too, that an accused person has no duty to prove his
innocence in criminal cases.

2. In fortification of the principles restated, we heavily rely on the authority of ANKPEGHER V

STATE (2018) LPELR 43906 (SC) , THE APEX COURT PER KEKERE EKUN , JSC AT
PADS 24-25 held : There is no doubt that in criminal proceedings the onus of the proof lies on
the prosecution throughout the trial and does not shift . In other words, there is no burden on the
accused person to prove his innocence.

3. Most respectfully My Lord, flowing from the proceedings it is our contention that throughout the
course of these proceedings, the prosecution has not adduced any iota of reasonable doubt and
furthermore, the prosecution adopted a strange strategy for prosecuting this case and by effect
hopes or maybe prays that my lord will perform a judicial miracle that is unsupported by the
evidence on record.

4. My Lord, we submit that the prosecution has terrible failed to lead evidence in proof of the
ingredients of the offence charged. It is obvious from the charge before this Honorable court that
the defendant are being tried for the offence of murder which is well provided for in SECTION
316 OF THE CRIMINAL CODE.

5. It is a well settled law that in a case of murder under SECTION 316 OF THE CRIMINAL
CODE, the prosecution must prove beyond reasonable doubt the ingredient/ elements of the
offence which has been given judicial burial under issue 1.

6. Most respectfully My Lord, having settled the law above, we submit that when the present charge
and the evidence led at the trial is evaluated through the lens of the guiding principles of law
stated above, it becomes clear that the prosecution has successfully failed to establish the offence
of murder and the element have not been well satisfied. These ingredients have witnessed
consistent espousal in many jurisdiction for example, by English Courts; R V HOPWOOD
(1913) 8 (R. APP. R 143; HYAM V DPP (1974) 2 ALL ER 41; by nigerian courts, MADU V
STATE (2012) 15 NWLR (PT 1324) 405, 443, DURLOODE V THE STATE (2000) 15
NWLR (PT. 691) 467.
7. My Lord, we submit that the statement by Sam and Philip do not directly establish the cause of
death of chief Ezenwo. According to their confession, they only dragged him into the bus to
question him regarding their missing sister’s involvement and the alleged threat of releasing a sex
video. They released him unharmed and had no intention of causing harm.

8. My Lord, it is a well settled law that with or without medical report, a trial court can still infer the
cause of death provided there is sufficient evidence that the death of the deceased person was the
direct result of the unlawful act of the accused person to the exclusion of all other reasonable
possible cause. ONYIA V THE STATE (2006)11 (PT. 991) 267. PER C C NWEJE
JSC .However, from the extant case, there is no sufficient or credible evidence pointing to the
fact that the accused had the intention to cause harm or the direct result of the unlawful act of the
accused could possibly cause harm in the alleged chief Ezenwo.

9. My lord, the confession of the two accused may indicate their involvement of the incident, but it
does not directly establish the cause of Chief Ezenwo death. Without additional evidence, such as
a body or forensic evidence linking their actions to his death, it would be challenging for the
prosecution to prove that their actions directly caused his demise and the statement does not
tantamount to the murder of the accused.

10. Most respectfully My Lord, furthermore, we contend that the prosecution have attempted to whip
up mere suspicion and this is an unforgivable dent in the prosecution’s case that cannot be
ignored. It ranks as highly as an unpardonable sin and therefore has one consequences. How can
we say Chief Ezenwo is death or presume him death, when they are plethora authorities bound to
prove this point. By virtue of SECTION 164(1) OF THE EVIDENCE ACT 2011, where a
person absent himself, cut all communication from people, go missing or disassociates or shown
to be absent and have not been heard of, for a complete period of seven years (7) by those who
would naturally have heard from him, such person will be presumed to be dead.

11. My lord, giving above position judicial imprimatur it was held PER KEKERE – EKUN, JSC
IN KEHINDE OLUDE V. THE STATE (2018) 1 PELR – 44070 (SC) thus :
 “SECTION 164(1) OF THE EVIDENCE ACT 2011, raises a presumption of death where a
person has not been seen or heard from for a period of 7 year by those who, if he had been alive,
would naturally have seen or heard from him”.

12. Most respectfully My Lord, by the combined effect of the above legal position, it may be
irresistibly inferred and accordingly submitted that a person may be presumed dead by law after
seven years but from the extant case My Lord , the alleged deceased have only gone missing for a
few days , how can we then presume him to be dead when it is not up to the
Required amount of years to presume someone death. So, My Lord, I don’t see the need why the
claimant Counsel brought us before this honorable Court when in fact there is no death person or
credible or sufficient evidence to show that the accused person killed the chief.

13. My Lord, by virtue of the provision of SECTION 164(1) OF THE EVIDENCE ACT, a person
who successfully furnished evidence and convinced the court, that a relative had not been from or
had been missing or dead since 7 years ago, the court may presume and declare such person dead,
if convinced thereof, however, My Lord, the claimant Counsel have failed to furnish this court
with such evidence. We urge this noble court, to refuse the invitation to assume/ presume or
speculate grossly that Chief Ezenmo is dead.

14. Most Respectfully My Lord, the same section 164 provides to the effect that:
“The burden of proving the death of such a person at any particular time is upon the person who
asserts it”.

15. This, it is deducible from the above that where a person who asserts the presumption of death ,
fails to furnish concrete evidence in proving same, it may be assumed that such a person he wants
to declare dead, is still alive even though dead in reality. This position received further statutory
baptism in SECTION 167(B) OF THE EVIDENCE ACT.

16. It is holistic consideration and in line with our submissions that we again submit that the
prosecution has not discharged the burden on it and has attempted to abdicate its duty and have
not proven their presumption or said presumption of death. Having not discharged its burden, we
submit that the defendant cannot be required to prove presumption of death and the presumption
in their favor has continued unscathed throughout this case.
17. My Lord, we submit that the sin of our Judicial process has never been to witch hunt the
innocent. Rather the law aims at protecting the innocent even where the machinery of the state
fails to protect them as in this case. Clearly, My Lord, it is pertinent to highlight the lack of
concrete evidence connecting the actions of the accused to the cause of death. The defense could
argue that the statement made by the two accused alone is not sufficient to establish guilt beyond
a reasonable doubt, especially in the absence of conclusive evidence regarding the chief’s death.

18. Most Importantly My Lord, today, the accused are in the dock of this court praying and hoping
that Justice still prevails within the court halls and walls. They hope that will have an opportunity
at their dreams and aspirations for the future. We as their counsel, passionately urge this court to
see through the charade of persecution in this case. We pray this court to consider our
submissions above and consequently discharge and acquit the defendants on all charges

4.3 ISSUE THREE

WHETHER OR NOT THE CONFESSION OF AN ACCUSED CAN BE USED AGAINST HIS

CO-ACCUSED

1. With utmost respect my lord, it is the defendant’s submission that the confession of the 1 st
and 2nd defendants does not implicate the 3rd defendant and therefore cannot be used against
him as co-accused in this matter. My lord Section 28 of the evidence act defines confession
as;

“An admission made at any time by a person charged with a crime stating or suggesting the
inference that he committed that crime”.

It is a voluntary statement made by a person in admission of guilt and can be taken into
cognizance by the court upon its submission.

2. My lord in the instant case of OZAKI & ANOR V STATE (1990) ALL NLR 94 the
Supreme Court held that

“The Evidence Act provides that a confessional statement of a co-accused is no evidence

against an accused person unless the latter has adopted the statement either by words or by
conduct.”
 This can be seen in the provisions of section 29(4) of the Evidence Act

“Where more persons than one are charged jointly with an offence and a confession made By
one of such persons in the presence of one or more of the other persons so charged is given In
evidence, the court shall not take such statement into consideration as against any of such
other persons in whose presence it was made unless he adopted the said statement by words
or Conduct.”

The provisions of this section is clear for all intents and purposes that where an accused
person makes a voluntary confessional statement which is direct positive and properly proved
he makes such statement in his stead and his stead only, therefore the admission of guilt by a
co-accused is not an automatic inclusion of the other.

3. My lord it may be argued by my learned friend that the confessional statement of the 1 st and
2nd defendant puts the 3rd defendant in a precarious situation however this is not so because
the 1st defendant had vehemently refused and had even raised the defense of alibi to
corroborate that he had not been a part of the crime. However, my lord I would once again
seek to draw the mind of this court to the facts of the case, in the confessional statement the
1st and 2nd defendant made a confession admitting to dragging the alleged victim and
interrogating him in the stand-by bus and later on releasing him when they were unable to
elicit any vital information from him. My lord if the prosecution had taken its time to
evaluate this statement it is clear as day that there was absolutely no confession to the crime
of murder.

4. Again, My Lord it was held by the court of appeal in EZE V FEDERAL REPUBLIC OF
NIGERIA [2016] NGCA 47 that in a criminal trial the guilt of the accused person for the
commission of any crime can be proved through the following;
 The confessional statement of the accused person or
 Circumstantial evidence or
 Evidence of an eyewitness

My lord on the first element there is indeed a confessional statement which Is not in dispute
at all however my lord it is not a solid bed on which such an offence can lie, the confession of
the defendant’s was in regards to one thing and the prosecution had decided to change the
narrative to fit the charges which have been manufactured by them, my lord this court is well
aware of the weight which a confessional statement holds in a criminal trial it is in fact one of
 the best form of evidence against an accused person. MUSA V THE STATE (2019) 2
NWLR PT. 1655 AT 140 where it is voluntary and positive, however where the charge is as
misdirected as the one before this honorable court it should be wholly dismissed as it holds
no water.

5. Secondly the circumstantial evidence which must be inferred from the facts of the case is one
that is tentative at best especially in a matter such as this the facts relied upon must be
incompatible with any iota of innocence that may shroud an accused person and must be
incapable of any other reasonable explanation other than that of the guilt of the accused
person the evidence must be so compelling that from the entire circumstances of the case
none other than the accused person must have committed the offence. Thus my lord in the
case of CHIMA IJIOFFOR V THE STATE [2001] LLJR SC the learned AKINTOLA
OLUFEMI EJIWUNMI, J.S.C. further cemented the test for which circumstantial evidence
may be proved.

“It may also be noted that there is no yardstick by which any circumstantial evidence can be
measured before a conviction can be entered against an accused person charged with the
offence for which the circumstantial evidence is the only one available. Each case depends on
its own facts but the one test which such evidence must satisfy is that it should lead to the
guilt of the accused person and leave no degree of possibility or chance that other persons
could have been responsible for the commission of the offence.”

Did the defendant’s drag chief into the bus for questioning? Yes. Did they commit murder?
No. My lord it stands that there is no evidence whatsoever to support such an allegation, this
is a grown man my lord it is well and truly possible that he may very well be out and about
gallivanting around the place while we are here wasting the time of this honorable court
because there is nothing to establish a contrary position and it is preposterous for the
prosecution to lead this court on a wild goose chase looking for an offence, one as serious as
murder, where there is none.

6. My lord thirdly there was absolutely no eye witness account to corroborate any of the charges
laid by the prosecution, no one person who was present at the time chief was taken till when
he was released by the defendant’s after the interrogation, The defense contends that the
prosecution’s case is without solid foundation or footing and should be given a proper burial
as it has been well established in the law of evidence that the burden of proof in criminal case
lies on the prosecution and must be proven beyond reasonable doubt Section 135 of The
 Evidence Act additionally subsection (3) of that section provides that where the prosecution
has proved its case beyond reasonable doubt there is a preponderance of evidence on the
defendant to prove reasonable doubt whereas the prosecution is incapable of doing so, I
humbly ask this court, has the prosecution established it’s case beyond reasonable doubt?
Should the prosecution’s feeble attempt to establish it’s case properly be made to succeed
where there is a profound lack of evidence or propriety at all? No sir, I think not. Fīat jūstitia
ruat cælum, May justice be done on the defendant’s today my lord as the prosecution has
failed to prove his case within the standard in which the law has kept sacrosanct in the
adjudication of matters before it.

7. It is on this holistic consideration and in line with our previous submissions that we again
submit that the Prosecution has not discharged the burden on it and has attempted to abdicate
its duty and have the Defendants prove their innocence. Having not discharged its burden, we
submit that the Defendants cannot be required to prove their innocence and the presumption
of innocence in their favour has continued unscathed throughout this case.

We consequently urge this honorable court to discharge and acquit the 1st, 2nd and 3rd
defendant of all charges. Thank you, My Lord.

5.0 CONCLUSION
On the basis of the argument made in this written address, it is the defendants’ humble submission
that;
5.1 The prosecution has failed to adduce evidence in proof of the charge of murder before this
court.
5.2 More precisely, the prosecution has failed to prove that the CCTV capture can constitute
a murder
5.3 The prosecution has also failed in establishing the cause of death which is one the
elements of a murder
5.4 Furthermore, the prosecution has failed in establishing facts which aid the admissibility of
the CCTV which is an electronically generated evidence.
My Lord, it is therefore on the basis of the arguments in this address and the judicial authorities cited
herein, that we urge this honorable court to discharge and acquit the defendants on all the counts in the
charge.

We beg to so Urge

DATED THE 12TH OF JUNE, 2023

EJE

E. J. EKWERE ESQ.
P. N. ERIM ESQ.
H. E. NYEN ESQ

FOR SERVICE ON:

THE PROSECUTION COUNSELS

I.O AKEREDOLU ESQ.

C.E JOSEPH ESQ.

O. H VICTOR ESQ.

6.0 LIST OF AUTHORITIES

6.1 LIST OF STATUES
THE EVIDENCE ACT
THE CRIMINAL CODE
6.2 LIST OF CASES
UCHE NWODO V. THE STATE (2019) NWLR 229
AKINYEDE OLIAYA V. THE STATE (2018) 10 NWLR
ADAVA V. THE STATE (2006) 9 NWLR (PT. 1069) 630
ASUQUO V. STATE (2016) 14 NWLR (PT. 1532)
STATE V. EKUMA (2022) 18 NWLR 13,
FATOYINBO V. A.G WESTERN REGION (1966) WRNLR 4
ARCHIBONG V. THE STATE (2006) 14 NWLR (pt. 357).
STATE V. OKECHUKWU (1994) 9 NWLR (pt. 368) 273
OLUDE V. THE STATE (2018) 10 NWLR (pt. 1627) 292.
UBANI V. THE STATE (2003) 18 NWLR (pt. 229) pg. 244
JOSEPH LORI V. STATE (1980) 8-11 SC 52 at 61
ABOGEDE V. THE STATE (1996) LPELR-45
MUHAMMAD V. THE STATE LGC (13/4/ 2017) E
HARUNA V. THE ATTORNEY GENERAL OF THE FEDERATION (2012) 9
NWLR (pt.419),
FRANK UWAGBOE V THE STATE (2008) 12 NWLR (PT. 1102)621.
ANKPEGHER V STATE (2018) LPELR 43906 (SC)
R V HOPWOOD (1913) 8 (R. APP. R 143
HYAM V DPP (1974) 2 ALL ER 41
MADU V STATE (2012) 15 NWLR (PT 1324) 405, 443
DURLOODE V THE STATE (2000) 15 NWLR (PT. 691) 467.
ONYIA V THE STATE (2006)11 (PT. 991) 267.
KEHINDE OLUDE V THE STATE (2018) 1 PELR – 44070 (SC)
OZAKI & ANOR V STATE (1990) ALL NLR 94
EZE V FEDERAL REPUBLIC OF NIGERIA [2016] NGCA 47
MUSA V THE STATE (2019) 2 NWLR PT. 1655 AT 140
CHIMA IJIOFFOR V THE STATE [2001] LLJR SC