EUNICE OBI V. THE STATE (2012)

EUNICE OBI V. THE STATE

(2012)LCN/5393(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of May, 2012

CA/L/222/09

RATIO

CRIMINAL LAW: WHETHER EVIDENCE OF A WITNESS CAN SECURE A CONVICTION

It is the law that a conviction can be secured, by the evidence of one witness, but where such evidence is fraught with doubt, it is fatal to the Prosecution. PER RITA NOSAKHARE PEMU, J.C.A

CRIMINAL LAW: WHETHER A CONVICTION FOR MURDER CAN STAND ON THE EVIDENCE OF A SINGLE WITNESS

By virtue of Section 178 of the Evidence Act, a conviction for murder can stand on the evidence of a single witness. Such a single witness must however be one that is credible and whose conduct does not give room for reasonable doubt. EMINE V. STATE 1991) 7 NWLR Pt. 204 at 480; ABOKOKUYANRO V. STATE (2012) 2 NWLR Pt. 1285. Page 530 at 558 e-g.

Thus an accused person can be convicted on the clear and unimpeachable evidence of a single witness, which evidence does not require any corroboration. PER RITA NOSAKHARE PEMU, J.C.A

WORDS AND PHRASES: DEFINITION OF A CONFESSION

A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime. (Section 21 (1) of the Evidence Act). PER RITA NOSAKHARE PEMU, J.C.A

APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH THE DECISION OF THE TRIAL COURT

Invariably, it is a trite fundamental doctrine, that a decision of a trial court is adjudged to be perverse when it ignores material facts adduced by parties before it, thus resulting in a miscarriage of justice to the affected party. Hence, as was rightly once held by this court –

An appellate court has a fundamental duty to interfere with and set aside the judgment in question.

See CHUKWU v. STATE (2007) 13 NWLR (Pt.1052) 430 at 458 paragraph A – B, per Saulawa, JCA; See also QUEEN v. OGADO (1961) 2 SCNLR 366; MOGAJI v. ODOFIN (1978) 4 SC 91. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

EUNICE OBI Appellant(s)

AND

THE STATE Respondent(s)

RITA NOSAKHARE PEMU, J.C.A: (Delivering the Leading Judgment):
This is an appeal against the judgment of Honourable Justice D.O. Oluwayemi, delivered on the 30th of April 2008 wherein he, sitting at the High Court of Justice Lagos, Ikeja Division, convicted the accused – Eunice Obi for murder, thereby sentencing her to the penalty of death.
The facts and circumstances leading to the filing of this Appeal may be briefly stated as follows;
The accused person, Eunice Obi is the wife of the deceased Kenneth Chinedu Obi. They are blessed with five children. They lived at No. 285B, Ojo Igbede Road, Ojo, Lagos.
According to the prosecution, on the 23rd day of December 2002, the deceased who was a motorcycle rider (popularly known as Okada driver), came back from his normal business, took his dinner with the Appellant and his children.
At about 10.00pm, the deceased together with the Appellant went outside their home to get some fresh air. This is because there was power blackout.
According to one Funke Adeyinka, who testified as PW2, she saw the Appellant pour petrol on the deceased on the fateful night and ignited him with a lit hurricane lamp. The said Funke Adeyinka was defecating nearby that night when she saw the incident. The deceased screamed and as a result, he was rushed to Polyran Hospital at Ajangbadi, where he was admitted, and later died on the 28th of December 2002.
The accused person made a statement to the police on the 31st of December 2002. She stated that on the 23rd of December, she received some disturbing information from Funke PW2, who is the daughter to their landlord. As a result of this, she confronted the deceased regarding the information, but he asked her: why she was questioning him.
On the 24th of December 2002, at about  9.30pm, the deceased came back from work and met her and the children eating. He joined them. After the children had finished eating, they left, leaving the deceased and herself outside the house. She felt cold and went inside the house. While there, she heard people shouting outside, and she immediately rushed outside to see what was amiss. There she was told that her husband was on fire and saw people trying to rescue him. He was immediately rushed to a private hospital at Ojo, Igbede Road where he was admitted. He died on the 28th of December 2002. She was taken to Ojo police Station where she made statement to the police. She was later transferred to State C.I.D. Panti, Yaba, where she made statement to the police.
She did not pour fuel on the deceased – pages 14-15 of the Record of Appeal.
In her statement of 21/1/2003, which is reflected at page 16 of the Record of Appeal, she said that she sent one Rabiu, to buy her four litres of petrol on the 23rd of December 2002, at about 5.30pm. She gave him the sum of N150.00. She used the petrol for the deceased generator, because there was no petrol in it. She did not use the petrol to burn her husband.
Herein is the charge against the Appellant at the lower court.
STATEMENT OF OFFENCE:  1ST COUNT
Murder contrary to Section 319(1) of the Criminal Code, Cap C17, Vol. 2, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
Eunice Obi (F) on or about the 2nd day of December 2002 at Ojo Igbede Road, Ajangbadi in Ikeja Judicial Division of Lagos State, murdered Mr. Kenneth Chinedu Obi.
In prosecuting the case, the prosecution called four witnesses  PW1, PW2, PW3 and PW4 respectively.
The Appellant testified as DW1 and called two witnesses – DW2 and DW3 respectively.
The learned trial Judge, after hearing the case for the respective parties and after perusing their respective addresses, in a Judgment dated the 30th of April 2008, found the Appellant guilty of murder, convicted her accordingly and sentenced her to death by hanging. Pages 53-81 of the record of appeal.
The Appellant is dissatisfied with this decision, and filed on the 18th of May 2008 a Notice of Appeal at the High Court. The record of appeal was transmitted to this Honourable Court on the 21st of May 2003.
There is an Amended Notice of Appeal deemed filed on the 8th of June 2010 by order of Court pursuant to a motion filed on 27/4/2010 encapsulating six Grounds of Appeal.
GROUND NO. 1
The learned trial judge erred in law by relying only on the evidence of the prosecution without considering the evidence of the Accused/Appellant which smocks of lack of fair hearing.
GROUND NO.2
The learned trial Judge erred in law by using the sole evidence of PWI to convict the Accused/Appellant
GROUND NO.3
The learned trial Judge erred in law by not recognizing the importance of the medical doctor that should testily as to the autopsy and no autopsy was produced before the court to state exactly the cause of death of the deceased.
GROUND NO.4
The learned trial judge erred in law by saying that the medical doctor’s evidence is not fatal to the prosecution’s case and that even the medical report or autopsy is not necessary in this case.
GROUND NO.5
The learned trial judge erred in law when she said that the prosecution has established the case of murder against the Accused/Appellant.
GROUND NO.6
The learned trial Judge erred in law by concluding that the appellant gave a confessional statement.
Learned counsel for the respective parties filed their briefs of argument.
The Appellant’s brief was filed on the 26th of April, 2010 but regularized by Court on the 11th of November 2011. It is settled by C.J. Jiakponna Esq.
The Respondent’s brief was filed on the 17th of June 2011 and same was settled by C.R. Odutola (Mrs) Assistant Chief State Counsel, Directorate of Public Prosecutions, Ministry of Justice, Lagos State.
On the 1st of March 2012, learned counsel for the respective parties adopted their briefs of argument.
The Appellant had sought leave of Court for extension of time to file the Amended Notice of Appeal of 27th April, 2010.
Learned counsel for the Appellant had queried why there was no autopsy report, even though the deceased was in hospital for five days before he died.
Adopting her brief of argument, Mrs. Odutola submits that the Respondent’s brief was filed on the 17th of June 2011, but same was regularized by order of Court on the 11th of November 2011. She submits that a Court can convict even without an autopsy report, but concedes that death was not instantaneous. She submits that the Appellant’s evidence was not corroborated.
In his brief of argument, the appellant had distilled six issues for determination. They are:
Issue No.1 Whether the learned trial judge was right in relying on the evidence of the prosecution without considering the evidence of the Accused/ Appellant in arriving at the Judgment
Issue No. 2 Whether or not the learned trial judge was right in treating PW2’s evidence as a reliable witness and acting on her evidence to convict the Appellant.
Issue No. 3 Whether the learned trial judge was right in concluding that failure to call a medical doctor or tender medical evidence is not fatal in light of the circumstances of the case
Issue No. 4 Whether or not the learned trial judge properly evaluated the totality of the evidence before the trial court before concluding that the case against the Accused/Appellant has been proved even to raising Suo Motu and retrying on the purchase of bag of rice as Grounds/motive for killing the deceased which was not established by evidence.
Issue No. 5 Whether the learned trial Judge was right in holding that the case of murder was established against the Accused/Appellant beyond reasonable doubt as required under the law having regard to the totality of the evidence before the lower court.
Issue No. 6 Whether the learned trial judge was right when it held that the Accused/Appellant gave a confessional statement.
The Respondent had in his brief of argument filed on the 17th of June 2011, also distilled preferred six issues for determination viz:-
Issue No.1 Whether the learned trial Judge was right in relying on the evidence of the prosecution without considering the evidence of the Accused/ Appellant in arriving at the judgment.
Issue No. 2 Whether or not the learned trial Judge was right in treating PW2’s evidence as a reliable witness and acting on her evidence to convict the Appellant.
Issue No, 3 Whether the learned trial judge was right in concluding that failure to call a medical doctor or tender medical evidence is not fatal in light of the circumstances of the case.
Issue No. 4 Whether or not the learned trial judge properly evaluated the totality of the evidence before the trial court before concluding that the case against the Accused/Appellant has been proved even to raising suo motu and retrying on the purchase of bag of rice as grounds for kitting the deceased which was not established by evidence.
Issue No. 5 Whether the learned trial Judge was right in holding that the case of murder was established against the Accused/Appellant beyond reasonable doubt as required under our law having regard to the totality of the evidence before the lower court.
Issue No. 6 Whether the learned trial judge was right when it held that the Accused/Appellant gave a confessional statement.
The Respondent had adopted all the six issues formulated, and articulated by the Appellant, as his. This appeal shall therefore be considered on the basis of those six issues for determination
In arguing Issue No. 1 which is;
Whether the learned trial judge was right in relying on the evidence of the prosecution without considering the evidence of the Accused/ Appellant in arriving at the judgment.
Learned counsel for the Accused/Appellant submits that where the Accused person pleads not guilty to the charge, it is for the prosecution to prove the charge against him beyond reasonable doubt.
He submits that the learned trial judge in this case, had accredited and accepted the evidence of the prosecution witness before considering the defence of the Appellant. He submits that there can be no question of considering the evidence led by both parties, if the learned trial Judge had believed and accepted the evidence of the Prosecution.
He argues that the evidence elicited from PW2 under cross-examination when she said that there was darkness on the night of the crime and at the particular time the incident happened. Therefore she could not identify the colour of the gallon or the substance used at the particular time.
That while PW2 in her statement said she was at the backyard where she watched the Appellant pouring fuel on the deceased, during cross examination PW2 said that the well where she went to defecate, before seeing the Appellant is he submits that the Appellant testified that the deceased and herself had been having problem with the landlord, who wanted to eject them from the house. How can the same landlord and his children testify, he queries?
From records, the prosecution called three witnesses and tendered five exhibits. Statement of the accused/appellant of 31/10/2002 and one dated 21/1/2003 – Exhibits A-A1. Photographs – Exhibits B-B1 and statement of Inspector Joseph Biramen dated 3/1/2002 – Exhibit C.
The accused pleaded not guilty to the charge (page 34 of the Record of Appeal).
At pages 58-60 of the Record of Appeal, the learned trial Judge considered the case of the Appellant, Also at pages 75-78, the learned trial Judge also exhaustively considered the evidence of the Accused/Appellant in arriving at the Judgment. It is therefore not true that he did not consider the evidence of the Accused/Appellant.
This issue is resolved in favour of the Respondent and against the Appellant.
Issue No. 2 which is;
Whether the learned trial judge was right in treating PW2’s evidence as a reliable witness and acting on her evidence to convict the Appellant.
Learned counsel had argued that PW2 contradicted herself. In one breath, she told court that she was at the backyard watching the Appellant commit the crime, but on cross-examination, she said she was toileting near the well. He argues that PW2, Funke Adeyinka had stated that on that fateful night, there was no light. He argues that she had testified that she had said it was because there was no light so i went near the well to ease myself. I could not get near the backyard because there was darkness.
Learned counsel, while referring to page 39 of the record – that PW2 had testified under cross-examination that the well is outside while the toilet is at the backyard.
Let me quickly add that the PW2 had said that she could not say the distance.
Learned counsel had argued that a person cannot be at two places at the same time. That pw2 did not tell court that she came out with any light to see her way. He queries if there was no light, how could PW2 have seen the colour of the gallon allegedly used by the Appellant? How could she have known that it was the Appellant who poured fuel on the head of the deceased, if ever that happened at all?
Urges Court to regard the evidence of PW2 as unreliable, impossible and improbable. Citing ONUOHA V. STATE (1989) 2 S.C. 115 at 124 where OPUTA J.S.C had this to say-
If trial judge chooses to believe on impossible or improbable story, an Appellate Court has the duty to reverse any decision based on such belief. cites OKEKE V. THE STATE (2002) 2 NWLR Pt. 697 at 397 at 441. That in Yusuf v. THE STATE (2007)1 NWLR Pt. 1070 Pg. 94 at 112, the Court held that an accused cannot be convicted on the evidence of a single witness unless evidence of such single witness is material enough to be used to convict the accused.
He contends that pW2 is a tainted witness, and her evidence cannot be relied upon. The evidence of the prosecution witness had a purpose of their own to serve and as a result the learned trial Judge should have warned herself of the danger of acting on the evidence of PW2 without corroborating.
That it is a fact that PW2’s father is the landlord of the deceased, who has been wanting to evict him.
There are certain features in this case that beats my imagination. First of all, PW2 narrated an incident that took place. The Court was not told at what time of the night the crime was allegedly committed. The Court was not told how dark it was, in other words, whether there was moonlight on that fateful day. The Court was not told the distance between where PW2 was toileting and the place where the deceased lay, when he was saturated with fuel. The Court was however told that there was no NEPA light that night.
It seems to me that where a crime is allegedly committed at night, the prosecution has a greater duty to prove the committing of the crime by the accused person.
In ONAGORUWA V. THE STATE (1993), 7 NWLR. Pt. 303 at 49 at 87-82, Tobi J.C.A (as he then was) observed thus:-
If there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence, with which he is charged, a Court of trial must as a matter of law discharge him and it has no business searching and scouting for evidence that is nowhere and therefore cannot be found.
That will not be consistent with our adversary system of administration of Justice.
It is the law that a conviction can be secured, by the evidence of one witness, but where such evidence is fraught with doubt, it is fatal to the Prosecution. Interestingly, nobody corroborated PW2’s story, s to how the incident took place. Could PW2 have been the only person on the scene that night? Where were other neighbours? Where exactly was she toileting? Infront of the home or at the backyard? There are glaring loopholes and material questions left unanswered.
It is apparent that the learned trial Judge erred in convicting the Appellant on the evidence of pW2 which lacked corroboration. There were many questions left unanswered. PW2 contradicted herself in material particulars in her evidence at the trial. For instance she had stated that she was at the backyard watching the Appellant, but under cross-examination, she admitted that she was toileting near the well. Where is the well? In front of the house or at the back? No one knows.
The learned trial Judge, in my view was grossly in error when she treated PW2 as a reliable witness, and acted on her evidence to convict the Appellant.
This issue is resolved in favour of the Appellant and against the Respondent.
On Issue No. 3 which is;
Whether the learned trial judge was right in concluding that failure to call a medical doctor or tender medical evidence is not fatal in tight of the circumstance of the case.
Learned counsel for the Appellant has argued that nowhere in the evidence of DW3 did he allude to the fact that no medical report issued, because the deceased body was decomposing, referring to page 50 of the Record of Appeal.
A cursory look at the evidence of DW3 at page 50 of the Record, his examination-in-chief and cross-examination shows no indication of this piece of evidence.
I therefore wonder how the learned trial Judge arrived at the conclusion he did in his Judgment at page 15 – paragraphs 3, lines 1-7 wherein he said –
The failure of the prosecution to call a doctor is not fatal to the prosecution case. Moreso, in the light that medical evidence is not necessary in all cases. In this case it is free that a linear coverage there was nobody to give medical evidence and the family were impatient according to DW3 to take the body of papa Emeka to be buried because having being burnt the body was decomposing firstly from 23rd day of December –  28th day of December 2003
The observation of the learned trial Judge is at page 15 of the Judgment, and not page 7 as alluded to by learned counsel.
It is trite that where death is instantaneous, medical report can be dispensed with. But, where the deceased did not die instantly, but was subject to medical check and treatment, there has to be medical report as to cause of death. To succeed in any criminal trial, the basic requirement that the prosecution must prove its case beyond reasonable doubt, is now too well entrenched in our criminal law, that it cannot be sidetracked – In RE: AMADI V. STATE (1993) SCNJ. 68.
The evidence of pw2, Funke Adeyinka who was 18 years old at the time of the incident, whereby she said she saw the Accused/Appellant pouring petrol on the deceased at night, needed to be corroborated by sufficient and probative corroborative evidence of PW2.
In law, to warrant the conviction of the Appellant for the offence of murder of her husband for which she stood trial, the evidence of PW2, being damming against the Appellant, there has to be corroborative evidence outside of that given by PW2, which renders it probable that it was the Appellant who truly inflicted the fatal injuries on the deceased, and that it was reasonably safe to act on it – R V. BASKERVILLE (1916) 2 K.B.D. 658 at 665; R. v. OMISADE & 17 ORS (1964) NMLR 67.
It is my view, that failure to call a medical doctor or tender medical evidence in this case, is fatal to the Prosecution case.
No doctor was called to testify as to the extent of the burnt wounds suffered by the deceased. How then do we know the cause of death?
This issue is resolved in favour of the Appellant and against the Respondent.
Issue Nos. 4 and 5 can safely, in my view be considered together. They are:
Issue No. 4: Whether or not the learned trial judge properly evaluated the totality of the evidence before concluding that the case against the Accused/Appellant has been proved even to raising Suo Motu, and relying on, the purchase of a bag of rice as ground/motive for killing the deceased which was not established by evidence.
and
Issue No.5: Whether the learned trial Judge was right in holding that the case of murder was established against the Accused/Appellant beyond reasonable doubt as required under the law having regard to the totality of the evidence before the lower court.
Where, in the totality of the evidence before the lower court was the issue of the purchasing of a bag of rice, the motive for killing of the deceased. None of the witness mentioned that issue. PW2 did not even mention it in her statement.
At page 21 of the Judgment (page 73 of the Record of Appeal) when the learned trial Judge observed thus:-
… There was no evidence as to whether there was any quarrel. From the evidence from all of them there was no quarrel. So it must have been what the Accused heard that Baba Emeka bought a bag of rice for Ijeoma. As a result of that she had a pre-meditated thought to kill him, to get rid of him so neither she nor the said Ijeoma the girl could have Baba Emeka, it is unfortunate that she said they all go to Deeper Life Bible Church (I will not bother myself about that)
How may I ask did the learned trial Judge arrive at this conclusion?
The Law has no place for conjecture guesswork or suspicious.
I agree entirely with argument proffered by learned counsel for the Appellant at page 21 of his brief of argument that the golden rule that runs through the conduit pipe of the criminal justice, and which also remains immutable, is that the prosecution must establish and prove by positive, credible and satisfactory evidence, the guilt of the Accused beyond reasonable doubt, because an accused person is presumed innocent until his guilt is established. In proving the prosecutor’s case beyond reasonable doubt, every ingredient which constitutes the totality of the offence must be established. And failure to prove one element of the offence would amount to the failure of the prosecution to prove its case beyond reasonable doubt.
NSOFOR V. THE STATE (2004) 18 NWLR pt. 905 pg. 292 at 310-311 SHANDE V. THE STATE (2005) 1 NWLR Pt. 907 at 278 at 239 Paragraphs d-g.
Where there is any doubt, same must be resolved in favour of the Accused.
OBILADE V. THE STATE (1970) 1 ANLR Page35.
ONAFOWOKAN V. THE STATE (1987) 3 NWLR Pt. 61 at 53.
In murder cases, the prosecution has the onus to establish the following:
(a) That the deceased died
(b) That the death of the deceased resulted in the act of the Accused.
(c) The kitting was unlawful
(d) The act of the Accused person was intentional with the knowledge that the death or grievous bodily harm is the probable consequence.
As earlier observed, the Prosecutor, with due respect had left many questions unanswered.
First and foremost, at page 39 of the Record of Appeal, PW2 did say thus inter alia under cross-examination
…… We have toilet and bathroom we have a functioning well. Yes I was sheeting near the well. It was because there was no tight and it is dark so I went near the well to ease myself. I could not get near the backyard because of the darkness. That was the 1st time of going to the toilet to sheet. We had lantern but we used it outside. The well is outside white the toilet is at the backyard I cannot say the distance ……
Now, this piece of evidence does not show that there was light on the fateful date. There is nothing to indicate whether there was moonlight or not. PW2 could not say the distance between where she was toileting to where the offence was committed. PW2 did not say what time of the night the incidence happened. She did not indicate whether she was the only one in the neighbourhood as at the time of the incident.
Moreso PW2 is a tainted witness as she and her family had a score to settle with the deceased and his family.
Now there is nothing from the prosecution to show if the deceased died.
There is nothing to show that the death of the deceased (if true) resulted in the action of the accused.
There is nothing to show that the killing (if true) was unlawful. There is nothing to show that the act of the accused person was intentional with the knowledge that the death, or grievous bodily harm is the probable consequence.
From records, the Accused/Appellant made no confessional statement, but blatantly and unequivocally denied the charge.
PW4, Inspector Sam Inocha did not see the corpse of the deceased, yet he was the Investigating Police Officer and same was referred to him on the 31st of December 2002. He did not go to the private hospital where the deceased was rushed to. He did say that autopsy was conducted at the private hospital. That no rubber was found as it was burnt with the deceased. He could not collect the acid. He had this to say inter alia-
…… No bench, nothing was found at the scene of crime.
… Autopsy has been done but no doctor to give the report – pages 43…of the Record of Appeal.
The police officer who referred the case to PW4 was never called to testify.
There was no explanation for this.
It is instructive that PW2 and PW3 (one Nofisatu Rabiu) did describe the keg which was used to buy fuel as blue in colour.
PW2 described it as a blue gallon white PW3 described it as a keg, PW2 said she did not see anybody around at the time of the incident.
By virtue of Section 178 of the Evidence Act, a conviction for murder can stand on the evidence of a single witness. Such a single witness must however be one that is credible and whose conduct does not give room for reasonable doubt. EMINE V. STATE 1991) 7 NWLR Pt. 204 at 480; ABOKOKUYANRO V. STATE (2012) 2 NWLR Pt. 1285. Page 530 at 558 e-g.
Thus an accused person can be convicted on the clear and unimpeachable evidence of a single witness, which evidence does not require any corroboration. In the instant appeal, the Prosecution called four witnesses. It was only PW2 who allegedly said she was an eye witness to the crime. PW1 and PW3 never witnessed anything. PW4 – An I.P.O was called but not the former I.P O who handed over to PW4.
PW2’s evidence, in my view leaves much to be desired.
Decidedly the phrase proof beyond reasonable doubt does not connote proof beyond all shadow of doubt, or beyond any iota of doubt. It is not attained by the number of witnesses called by the Prosecution; but it depends, on the quality of the evidence adduced by the Prosecutor. When the learned trial Judge said in his Judgment at page 21 (Pg.73 of the Record of Appeal) that
….. need not have an circumstantial evidence; It is based on direct, unequivocal, uncontroversial cogent evidence of the single eye witness and other corroborative evidence that is the evidence of PW2, Miss Funke Adeyinka who put on courage and came to court and gave evidence in Chief I saw Mama Emeko pouring fuel from a blue keg on Baba Emeka and she threw the local lantern on him and i shouted fire! Fire!. And everybody come out and Baba Emeka died.
He was grossly in error, in view of the many unanswered questions, which I had earlier on referred to in this Judgment. This is because, I find the evidence of this single eye witness fraught with doubts and uncertainty. It is not cogent enough. Even on the basis of circumstantial evidence, I do not find the evidence adduced as positive, compelling and with mathematical precision, pointing to the fault of the appellant. Because to achieve this, all the surrounding circumstances (which I find shady and uncertain) must be examined together for a logical inference that the a\ppellant committed the offence charged.
If the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt.
In the instant case, available evidence against the Appellant are not strong and cogent enough to establish her guilt. For example, the Police did not say that the Appellant, or her clothes which she wore on that day smelt of fuel, neither was any of her clothes in her home investigated for odour from fuel. So that, even on the basis of circumstantial evidence, the prosecution cannot secure a conviction against the Appellant.
From the notability of the evidence before the court, and from the lacuna caused by lack of evidence, which the prosecution should have elicited and/or provided, it is my view that the Prosecution has failed to establish the case against the Appellant according to law and so I hold. The result is that Issues No.4 and 5 are hereby resolved against the Respondent and favour of the Appellant.
Issue No. 5 which is
Whether the learned trial judge was right when it held that the Accused/Appellant gave a confessional statement.
A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime. (Section 21 (1) of the Evidence Act).  At page 2G of the Judgment of the lower Court (Page 78 of the Record of Appeal) the learned trial Judge had this to say.
… And the Rule in Nigeria is that whoever kills according to Section 319 of the Criminal Code, must be killed and so I hereby say the confessional statement…
From the Record of Appeal, there is nothing to show that the appellant made a confessional statement. Neither was she taken before a Superior Police Officer for attestation as required by law.
This view of the learned trial Judge is perverse. A judge cannot import into a case, any issue that is not therein.
This issue is resolved in favour of the Appellant and against the Respondent.
The result is that this Appeal succeeds and same is hereby allowed.
Accordingly, the Judgment of the learned trial Judge viz: Honourable justice D.O. Oluwayemi, delivered on the 30th day, of April, 2008, of the High Court of Justice, Lagos State convicting and sentencing the Appellant to death is hereby set aside, while the conviction of the Appellant is hereby quashed.

KUMAI BAYANG AKAAHS, J.C.A.: I was privileged to read in draft the judgement of my brother, Pemu, ICA, The facts are well set out and the issues raised in the appeal well treated. Upon a calm appraisal of the evidence adduced no reasonable tribunal could have convicted the Appellant for the offence of murder. The investigation was poorly done and the prosecution left many loose ends untied.
I share in toto the conclusion reached by my Lord, Pemu, JCA that the appeal has merit and should be allowed and the conviction and sentence of death passed on the Appellant are hereby set aside.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the judgment just delivered by my learned brother, the Hon. Justice R.N. Pemu, JCA. Having equally read the briefs of the learned counsel to the respective parties and the record of appeal, I cannot but concur with the reasoning and conclusion reached in the lead judgment, to the effect that the appeal is meritorious.
Instructively, by virtue of the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, every person who is charged with a criminal offence shall be presumed to be innocent unless and until he is proved guilty. And by virtue of the provision of section 138(1) of the Evidence Act, the standard of proof of a criminal offence is that of proof beyond reasonable doubt.
Thus, in view of the combined effect of the provisions of section 36(5) of the constitution (supra) and section 36(5) of the Evidence Act (supra), the prosecution has a fundamental obligation to prove its case beyond reasonable doubt against the accused (Appellant) otherwise the entire trial is vitiated, and the accused is entitled to be discharged and acquitted.
In the instant case, one of the reasons that informed the wisdom of the lower court to find the Appellant guilty of the murder of the deceased (her late husband), was the purported confessional statement of the Appellant (Exhibits AA1). At page 69 of the Record of appeal, the learned trial judge was recorded to have, inter alia, held thus:
From all evidence before me, PW1, PW2, PW3, DW4, from the exhibits A and A1 which is the confessional statement of the Accused person at Panti Police Station and also the confessional statement of the Accused person at Ojo Police Station where she stated that she too heard fire! fire!. On the 23rd of December 2002, there was fire! Fire! From where does the fire emanate?
Ironically, however, having appraised the record of appeal vis-a-vis the exhibits, especially exhibits AAL in question, lam unable to appreciate, let alone uphold the learned trial judge’s finding regarding the purported confessional statement of the Appellant. The truth of the matter is that the said exhibits AA1 cannot, by any stretch of imagination, qualify as confessional statement. The last line of exhibit A is to the effect thus:
I am not the one who pour (sic) fuel to my husband.
while in the additional statement (exhibit A1), the Appellant stated thus:
Further to my statement I made on the 31/2/02 (exhibit A) I now wish to say that I sent one Lofiston Rabiu to buy me 4 litres of petrol on 23/12/02 at about 6.30 Pm and I gave her the sum of N150.00 for the 4 litres petrol. I used the petrol for husband generator because there was no petrol in the generator. I did not use the petrol to burn my husband and it wasn’t me that burnt my husband.
Therefore, there is no doubt that the learned trial judge was in error in referring to the said exhibits A & A1 as confessional statements.
Undoubtedly, the circumstances surrounding the death of the deceased was pathetic and rather appalling. There is equally no doubt that in every civilized culture all over the world the crime of murder is shocking, nauseating and abominable. As we are told in the Holy scriptures, murder is the most heinous, unnatural crime that could be committed by man.
However, the fact still remains that by virtue of the combined effect of the provisions of section 36(5) of the 1999 constitution (supra) and section 138(1) of the Evidence Act (supra), the prosecution must prove its case beyond reasonable doubt against the accused (Appellant). Having thus failed to discharge that fundamental statutory duty, it behoves upon the court to discharge and acquit the Appellant.
Invariably, it is a trite fundamental doctrine, that a decision of a trial court is adjudged to be perverse when it ignores material facts adduced by parties before it, thus resulting in a miscarriage of justice to the affected party. Hence, as was rightly once held by this court –
An appellate court has a fundamental duty to interfere with and set aside the judgment in question.
See CHUKWU v. STATE (2007) 13 NWLR (Pt.1052) 430 at 458 paragraph A – B, per Saulawa, JCA; See also QUEEN v. OGADO (1961) 2 SCNLR 366; MOGAJI v. ODOFIN (1978) 4 SC 91.
Hence, I have no hesitation whatsoever in concurring with the reasoning and conclusion reached in the lead judgment in holding that the appeal is meritorious. The appeal is equally hereby allowed by me. I set aside the said judgment of the lower court, and accordingly discharge and acquit the Appellant.