OGEGE EBGERETAMU v. THE STATE (2014)

OGEGE EBGERETAMU v. THE STATE

(2014)LCN/6966(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/B/359C/2012

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

OGEGE EBGERETAMUAppellant(s)

AND

THE STATERespondent(s)

RATIO

THE DEFENCE OF THE PLEA OF ALIBI

The Supreme Court in Isong Akpan Udoebre v. State (2001) 12 NWLR (Pt. 728) Pg. 617 held on vague plea of alibi that:
“Where the accused states that either ‘he was not in town on that day’ or that ‘he travelled to a neighboring town or village-Awka’ and nothing more, no reasonable person would think that a serious plea of alibi has been made out”.
The Supreme Court in Balogun v. Attorney-General of Ogun State (2002) 2 SC (Pt. II) Pg. 89 at 101 held that:
“Alibi cannot be raised at large”

Upon a proper plea of alibi being raised by the accused, the burden falls on the prosecution to disprove the accused’s alibi and fix the accused at the scene of crime.
In the instant case, the Police could not, and did not investigate the alibi raised by the appellant at the time it was raised, which was during the trial. Thus, the Court was left with no other option than to believe the evidence on oath of the persons at the scene of crime to fix the accused person at the scene of the crime at the material time. The Supreme Court in Ndukwe v. State (2009) 7 NWLR (Pt. 1139) Pg. 43 at held as follows:
“It is now settled that even though it is the duty of the prosecution, to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and or invariable way of doing this. If the prosecution adduces sufficient and accepted evidence to fix a person at the scene of the crime at the material time, his alibi, is thereby logically and physically, demolished and that would be enough to render such plea, ineffective as a defence.”
See also Adedeji v. State (1971) ALL NLR 75; Eze v. State (1976) 1 SC 125 and Njovens v. State (Supra); Bello v. Police (1959) WRNLR 124; Yanor v. State (1965) NMLR 337. OGUNWUMIJU, J.C.A.

WHETHER OR NOT IT IS SAFE O CONVICT AN ACCDED PERSON BASED ON SPECULATIVE FINDINGS

It is settled law that it is unsafe to convict an accused based on speculative finding or suspicion. For a conviction to stand, it must be based on credible or reasonable inference. See Amadi v. State (1993) 8 NWLR (Pt. 314) Pg, 644; State v. Ogbunjo (2001) 2 ACLR 527 at 538 – 540. PER OGUNWUMIJU, J.C.A.

WHETHER OR NOT FAILURE OF THE PROSECUTION TO CALL A VITAL WITNESS IS FATAL TO ITS CASE

I agree with the learned appellant’s counsel that failure of the prosecution to call a vital witness is fatal to its case. See Ochiba v. State (2011) NSCQR 1 and State v. Nnolim (1994) 5 NWLR (Pt. 345) Pg. 394, Ogudo v. State (2011). However, the prosecution has unfettered discretion as to how to conduct its case and it cannot be compelled to call any particular or number of witness(es). See Ochibe v. State (supra). Who then is a vital witness? Adekeye, J.S.C. in Ochiba v. State (Supra) on who a vital witness stated as follows:
“A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”
See also Imhanria v. Nigerian Army (2007) 14 NWLR (Pt. 1053). PER OGUNWUMIJU, J.C.A.

MEANING OF A DEMOLISHED PLEA OF ALIBI

INGREDIENTS OF THE OFFENCE OF MURDER

Let us now look into the ingredients of the offence of murder as provided by Section 319 of the Criminal Code Cap. 48, Vol. II, laws of Bendel State 1976 as applicable to Delta State as follows:
“(1) That the death of a human being has actually taken place;
(2) That such death was caused by the accused
(3) That the act of the accused caused the death of the human being was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.”
See also Adava v. State (2006) ALL FWLR (Pt. 377) Pg. 1777 at 1785; Dibie v. State (2004) 14 NWLR (Pt. 893); Adekunle v. State (2006) 14 NWLR (Pt. 1000) Pg. 717 at 736. PER OGUNWUMIJU, J.C.A.

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the High Court of Delta State delivered by Hon. Justice M. Umukoro on 10/10/2006 wherein the learned trial judge sentenced the Appellant to death by hanging. Below are the undisputed facts that led to this appeal:

The Appellant and the deceased, one Miss Oghenekome Obogho were apparently lovers and as at December 2000 were in Taraba State where they lived as a couple.

In 2003, the deceased and the Appellant relocated from Taraba to Igbide Town. The “couple” stayed with the deceased’s father for some days before packing to the appellant’s father’s house in Ekpo.

There is evidence of the Appellant battering the deceased on several occasions upon suspicion of infidelity. The deceased then moved in with one Samuel who was her former lover and a staff of Oleh Local Government. Upon discovery of this fact, the appellant visited the said Samuel’s house, met the deceased there and threatened to take their lives if she did not return to him.

The deceased in November, 2003 moved in with her female friend – Enakome Evivie in her house opposite Odio-Ologbo Palace in Oleh. The Appellant visited and threatened the deceased and the said Enakome several times and on one occasion hit them both with a motorcycle.

The evidence on record is that on 10/11/03, the deceased was playing ludo with her friend in their abode when the appellant visited again, discussed with the deceased and left.

Evidence on record is that at about 10:00 p.m. of the same day, Enakome was sleeping when the deceased left the room and went outside to empty her bowels. Enakome then related that she heard the deceased scream her name from outside and said “Enakome come to rescue me, Ogege (the Appellant) is killing me”. Enakome rushed outside the house to find the deceased with deep cuts in her head and beside her ear and in a pool of her own blood. Enakome also reported that she heard the sound of a motorcycle being ridden away from her house through the bush as she shouted to get people to help her carry the deceased. The deceased was rushed to the General Hospital, Oleh where she gave up the ghost. Enakome then reported the incident at Oleh Police Station that same night at about 11:30 p.m.

The Oleh Police visited the scene of the crime and authorized autopsy to be carried out on the deceased’s corpse. The Police also questioned Enakome – the deceased’s friend, Solomon and Mr. Dennis – the deceased’s father who all made statements to the Police. However, the Appellant could not be found in Oleh. The Appellant was arrested five months later in April 2004, in Makurdi and was taken to Asaba.

The Appellant was arraigned before the High Court of Delta State Holden at Oleh on 1/06/2005 on a one-count charge of the murder of the deceased.

The prosecution presented five witnesses who were:
(1) Enakome Evivie, who resided at Ibiegbe Street, Opposite Odio-Ologbo Palace, Oleh – friend to the deceased.
(2) Dennis Oboghor – father of the deceased
(3) Dr. Benedict Oboghor – uncle to the deceased. He identified the corpse for autopsy.
(4) Dr. Godwin Bardi – Doctor at General Hospital, Oleh. He performed the post mortem examination on the corpse.
(5) Isiah Emetonchor – Police Inspector and the Investigating Police Officer.

It was only the appellant who testified on oath to defend the charge.

On 10/10/2006, Hon. Justice Umukoro of the Delta State High Court, Holden at Oleh convicted the appellant of murder and sentenced him to death by hanging.

The appellant filed a notice of appeal on 31/10/2012 and filed brief of argument on 19/12/2012. The respondent’s brief was filed on 22/1/2013. Appellant filed a list of additional authorities on 24/9/2013.

The Appellant in the brief settled by Ayo Asala of counsel distilled only one issue for determination as follows:

Whether the circumstantial evidence adduced in this case proved the guilt of the Appellant beyond reasonable doubt before he was convicted for murder and sentenced to death.

The Respondent, in the brief settled by Edema E.H. DPP Delta State, raised two issues for determination as follows:

1. Whether the learned trial Judge was right in law when he held that the prosecution proved its case against the accused person beyond reasonable doubt.
2. Whether the learned trial Judge properly considered the defence of alibi raised by the appellant.

I am satisfied that the issues as formulated by respondent’s counsel address the complaints articulated in the notice of appeal. Since they are similar to the one couched by the appellant, I will adopt both issues for the determination of this appeal but shall couch them as follows:

1. Whether the learned trial Judge properly considered the defence of alibi raised by the Appellant.
2. Whether the circumstantial evidence adduced in this case proved the guilt of the Appellant beyond reasonable doubt as to justify the conviction of the appellant.

ISSUE 1
Whether the learned trial Judge properly considered the defence of alibi raised by the Appellant.

Learned counsel for the appellant, Ayo Asala Esq. on this issue argued that the appellant promptly raised the defence of alibi to the effect that the appellant was in Taraba State the day the deceased was murdered. Counsel in citing Omotola v. State (2009) 8 ACLR 29 Pg. 163-164 argued that the learned trial Judge merely reviewed the alibi of the appellant without evaluating it. Counsel further submitted that the learned trial judge erred by considering the plea of alibi raised by the appellant before the prosecution had proved its case beyond reasonable doubt as this amounted to placing the onus on the accused to prove his innocence. Counsel cited Nwachukwu v. State (2000) 12 NWLR (Pt. 680) pg. 128 at 143.

Edema E.H respondent’s counsel, on this issue, argued that the plea of alibi places the responsibility on the accused to state where he was at the time the crime was committed and persons who can testify to his being there at that material time. Counsel further argued that the appellant’s alibi that – “On 10/11/2003 I was not in Oleh, I was in Taraba State” was too porous, vague, scanty and completely devoid of material facts worthy of investigation by the Police. Counsel cited Ogoala v. State (1991) 2 NWLR (Pt. 175) Pg.521. Counsel submitted that the said alibi will amount to the Police going on a wild goose chase in investigating it. Counsel cited Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) Pg.367 at 423 – 424.

Learned counsel for the respondent further argued that the defence of alibi raised by the Appellant was rebutted by PW1 who saw the appellant in the afternoon of the day the deceased was murdered and also heard the deceased call the name of the Appellant that the Appellant was killing her. Counsel in submitting that the trial judge properly considered the defence of alibi cited Njovens v. State (1973) 5 SC (Pt. 12) Pg.47 and Ochemaje v. State (2008) All FWLR (Pt. 435) Pg. 1661.

His Lordship at page 61 of the record held on this point as follows:

“The accused pleaded alibi. That on 10’9711’9703 he was not in Oleh. That he was in Taraba State. I take judicial notice that Taraba State is one of the 35 states that make up the country of Nigeria. I take judicial notice that the land area of Taraba State is 2’bd times that of Delta State. The issue for the accused is to say where he was on 10’9711’9703, who was with him; what he was doing on 10’9711’9703. Simply to plead I was in Taraba State is rather vague, uncertain, unspecific and tantamount to a wild goose chase for the Police to investigate.
A defence of alibi must be timeously brought to the attention of the Police by an accused person preferably in his statement to the Police at the earliest opportunity. See Gachi v. State (1965) NMLR 333.”

Let me remind us that the Blacks Law Dictionary 7th Edition by Bryan A. Garner et al at page 72 defines alibi as:
(1) A defence based on physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time.
(2) The fact or state of having been elsewhere when an offence was committed.
Thus, an accused person when raising a defence of alibi does so with a view to convince the Court that he was not at the scene of the crime at the material time of commission of the crime and that he was elsewhere. A successful plea of alibi results in the acquittal of the accused. Alibi is a radical, sweeping and far-reaching defence which, where proved, serves to completely exculpate an accused from the offence charged.

For the defence to exculpate the accused, it must be raised in accordance with certain rules. For the defence of alibi to be properly raised, it must be raised at the earliest opportunity when an accused person is confronted by the police with the commission of an offence so that the Police will be in a position to check the alibi. See also Bashaya v. State (1998) 5 NWLR (Pt. 550) Pg. 354, Afolalu v. State (2010) 16 NWLR (Pt. 1220) Pg. 584.

The law is that for an accused to rely on the plea of alibi, he needs to state that he was not at the place of the commission of the crime at the material time, he must also state with precision where exactly he was at that time, who he was with and what he was doing. It is important also that the Police must have put certain pertinent questions to the accused to which he had answered and raised the defence of alibi. It is upon the statement of these facts that the Police can proceed to investigate the alibi raised. A mere statement that he was not at the scene of the crime at the material time will amount to sending the Police on a wild goose-chase.

In the instant case, the appellant on 30/04/2004 in his statement made to the Police, merely informed the Police that he heard of the deceased’s death in December, 2003 but he did not reveal where he was particularly at the material time the crime was committed which was about 10:00 p.m. on 10/11/2003. Since he was not arrested immediately the deceased died, he must have been told when he was arrested the reason for his arrest. That was the point to raise the defence of alibi.

The appellant raised the defence of alibi for the first time on the 17/03/2006 during his testimony on oath before the trial Court at page 45 of the record as follows:

“I was not in Oleh on 10/11/03. I was in Taraba on 10/11/03.”

Ogbuagbu, JSC in Ebenehi v. State (2009) 5 NWLR (Pt. 1138) Pg. 431 held as follows:

“I note that the defence of alibi, was raised by the appellants during their evidence at the trial and not in their respective statements to the Police. It is now settled that an accused person, must set up the defence, at the first opportunity to enable the Police investigate same, otherwise, it may be disregarded”

See also, R v. Littleboy (1934) 24 CAR 192, Gachi v. State (1965) NMLR 337, Ntam v. State (1968) NMLR 86.

On this point, I am of the humble view that the defence of alibi of the appellant was not raised timeously. I disagree with the learned appellant’s counsel that the plea was raised at the earliest opportunity. To say that the plea of alibi is raised promptly will be to raise it first upon challenge by the Police for the commission of the crime, which was not the position in this case. The appellant had ample time during Police investigation to raise the defence so that it can be investigated but he chose not to. Raising the defence before the court during trial only amounts to an afterthought.

I agree with the learned respondent’s counsel that the alibi raised by the appellant was too porous, vague, scanty and unreliable for the court to believe. The Appellant merely stated that he was in Taraba State on the material date. We are left to conjecture where he was precisely in Taraba State on 10/11/2003.

PW1 in her testimony on oath before the court stated emphatically that the accused was in her residence to see the deceased around 3:00 p.m. on the said 10/11/2003. Her evidence at page 35 of the record is as follows:

“On 10/11/2003, I and my friend now late were playing ludo game in front of my house. It was in the afternoon. The accused came to see us. My late friend was girlfriend of the accused.”

PW1 further stated in page 36 of the record that:

“The accused met me and the deceased playing ludo game in my house in company of one Solomon.”

This evidence on oath was not controverted under cross-examination or other means by the defence.

The appellant himself in Exhibit A at page 59 of the record stated that:

“In the month of November, 2003 the deceased disappeared from my house to live in Oleh town with another boy called Samuel a staff of Local Government Council Oleh.”

There is no doubt that the onus is on the accused to proffer evidence of alibi and having done so, the onus is on the prosecution to disprove the defence of alibi. See Agbanyi v. The State (1995) 1 NWLR (Pt. 369) Pg. 1 at Pg. 56.

The law is that the mere putting forward of an alibi is not enough for the court to ipso facto believe same where the prosecution have been able to adduce cogent evidence that fixes the accused to the scene of the crime.

The law is that the plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the material time. See Onuchukwu & Ors. v. The State (1998) 4 SCNJ 36; Bushaya v. The State (1998) 4 SCNJ 202; John Peter v. The State (1997) 3 SCNJ 148.
Of course, the trial judge rightly disbelieved his evidence on oath that he saw the deceased last in 2002 and had no quarrel with her union with Samuel. I am of the humble view that the plea of alibi had been demolished as the prosecution at the lower Court adduced sufficient evidence particularly that of PW1, fixing the appellant at Oleh on the day the crime was committed. It is obvious that given the fact that the alibi pleaded by the appellant was not raised promptly and it was deficient of the material facts required for a valid plea of alibi, I am of the humble view that the defence of alibi cannot avail the appellant. This issue is resolved against the appellant.

ISSUE 2
Whether the circumstantial evidence adduced in this case proved the guilt of the Appellant beyond reasonable doubt as to justify the death sentence passed on the Appellant.

Appellant’s counsel on this issue argued that the circumstantial evidence adduced by the lower court fell far short of the standard required to prove the charge of murder. Counsel stated the ingredients of the offence of murder and cited State v. Ogunbanjo (2001) 2 NWLR (Pt. 698) Pg. 576 at 586 and Millar v. State (2005) 8 NWLR (Pt. 927) Pg. 236 at 252. Counsel further argued that before the prosecution can rely on circumstantial evidence to ground conviction in a criminal trial, such evidence must be cogent, complete and unequivocal. Counsel cited Ogidi v. State (2005) NWLR (Pt. 918) Pg. 286 at 319.

Counsel argued strenuously that though it was settled that the deceased was dead, the second and third ingredients of the offence of murder were strongly disputed. Counsel contended that there was no eyewitness testimony and that while PW1 was sleeping when the deceased was attacked, PW2 only identified the corpse for autopsy and that PW3’s testimony was hearsay. Counsel contended further that PW4 performed post mortem while PW5 was the Investigating Police Officer. Counsel submitted that the findings of the trial court were not borne out by the record and that the prosecution had failed to establish beyond reasonable doubt that the act of the appellant caused the death of the deceased.

Counsel further submitted that the only evidence that attempted to link the appellant with the crime was the testimony of PW1. Counsel argued that such evidence cannot be taken seriously, and stated that it was impossible for a sleeping person to hear a shouting person and submitted that the evidence of PW1 was an afterthought. Counsel further argued that even though there was strong suspicion that due to the strained relationship between the appellant and the deceased, and it could be reasonably suspected that it was the appellant who re-visited the deceased at 10p.m. and murdered her, suspicion alone was not enough to ground conviction.

Learned counsel for the appellant further posited that it was the duty of the trial judge to evaluate the circumstantial evidence of the prosecution especially the evidence of PW 1 to determine whether they are sufficient to ground conviction but that the trial judge failed to do so. Counsel submitted that instances of previous squabbles between the deceased and the appellant was not credible enough to enable the court to hold that the appellant murdered the deceased since there was no eye-witness testimony and that the fact of the squabbles would at best only amount to suspicion. Counsel cited Momodu v. The State (2008) All FWLR (Pt. 447) Pg. 67 at 125, State v. Ogunbunjo (Supra), Millar v. State (2005) 8 NWLR (Pt. 927) Pg. 236 at 264, Ahmed v. State (2001) 12 NWLR (Pt. 726) Pg. 622 at 650.

Learned appellant’s counsel in further trying to puncture the decision of the trial court posited that the failure of the prosecution to call Solomon, the other person reported to be playing ludo with the deceased in the afternoon of the fateful day was fatal to the prosecution’s case. Counsel argued that even though PW1, PW3 and PW5 all mentioned the Solomon in their testimonies, the prosecution failed to call him. Counsel submitted that although the prosecution does not need to call a host of witnesses to prove his case, where there is a vital point in issue and there is a witness to prove its case, whose evidence will settle the issue, the witness ought to be called and cited Millar v. The State (Supra), Opayemi v. State (1985) 2 NWLR (Pt. 5) Pg. 101. Counsel further argued that the failure of the prosecution to call Solomon raises doubt on the testimony of PW1.

Counsel in trying to discredit the evidence of PW1 stated that PW1 being a friend of the deceased, had a purpose to serve and was a tainted witness. Counsel cited Moses v. State (2003) FWLR (Pt. 141) Pg. 1969 at 1988. Counsel submitted that since the death of the deceased occurred at PW1’s house, she obviously had a purpose to serve to wit exculpating herself from the crime and implicating the appellant. Counsel cited Omotola v. State (supra), State v. Okolo (1974) 2 SC 73, Ishola v. State (1978) 9 – 10 SC.

Edema E.H., counsel for the respondent on this issue submitted that the standard of proof required in criminal prosecution is proof beyond reasonable doubt and not proof beyond all manner of doubt. Counsel cited Section 138 (1) of Evidence Act 2011. Counsel in listing the ingredients of the offence of murder cited Dibie v. State (2004) 14 NWLR (Pt. 893), Adekunle v. State (2006) 14 NWLR (Pt. 1000) Pg. 717 at 736, Adava v. State (2006) 9 NWLR (Pt. 984) Pg. 152 at 167.

On the first ingredient of murder, respondent’s counsel submitted that it was established that the deceased was dead and quoted part of the testimonies of PW3, PW2 and PW4.

On whether it was the appellant that killed the deceased, counsel referred to parts of the testimonies of PW1, PW3, PW5 and exhibit A and submitted that the evidence on record reveals overwhelming circumstantial evidence that linked the appellant with the murder of the accused. Counsel further argued that the totality of the evidence were cogent, compelling, unequivocal and that all accusing fingers points to the guilt of the accused since there was no possibility that any person other than the appellant went to the house at 10:00 p.m. to murder the deceased. Counsel cited Onah v. State (1985) 3 NWLR (Pt. 12) Pg. 236, Adio v. State (1986) 2 NWLR (Pt. 24) Pg. 581 at 593, Nasiru v. State (1999) 2 NWLR (Pt. 589) Pg. 87 at 98.

Can Solomon be regarded as a vital witness in this case? Was he an eye-witness to the murder of the deceased? Was he privy to any special fact that could lead to the apprehension of the murderer? What significant thing could Solomon be said to know that he could and did not reveal to the Police during investigation which might be revealed to the appellant’s advantage on oath? All these questions are answered in the negative in the light of the evidence before the trial Court. I am of the humble view that Solomon was not a vital witness and the failure of the Prosecution to call him as a witness was not in any way fatal to the prosecution’s case.

I disagree with the learned appellant’s counsel’s contention that PW1 being a friend of the deceased was a tainted witness. The mere fact that a witness has a relationship with the deceased or a party to litigation does not conclusively make that witness a tainted witness.

I think that the mere kinship, friendship or filial affinity to either the victim or the accused cannot turn a witness to the crime “a tainted witness”. See Peter Orisakwe v. The State (2004) 5 SCNJ 256. A tainted witness is a witness who though not an accomplice is a witness who may have his own purpose to serve. Thus a trial judge should in prudence warn himself before accepting without some corroboration the evidence of such witness. See State v. Okolo (1974) 2 SC 73; Jimoh Ishola v. The State (1973) 9-10 SC; Nbenu & Anor. v. The State (1988) 7 SCNJ (Pt. 11) Pg. 211 at 220. A tainted witness like an accomplice must be a person who has his own purpose to serve. That purpose must be one that transcends merely being a witness at a trial. A co-suspect for example may have a special interest to serve or protect. An accessory before or after the fact may be a tainted witness. A hostile witness may be a tainted witness in the sense of having some hidden reason not to come and give evidence. In spite of all of the above, even if the witness were believed to be tainted, all the trial judge need do is to warn himself and look for some corroboration of the evidence of such a witness.
The Supreme Court in Adelumola v. State (1988) NWLR (Pt. 73) Pg. 683 held that:
“The credibility of a witness may also depend upon his knowledge of the facts to which he/she testifies. Here no one can successfully challenge the evidence of PW1. She knew the facts to which she testified. Other factors to be considered before believing a witness are his disinterestedness, his integrity, his integrity, his veracity and his being bound by his oath to speak the truth. But these are matters to be considered and taken into account by a trial Court.”

In the instant case, the appellant only alleged that PW1 was a tainted witness. The allegation was not supported with grounded and solid facts and evidence. There was nothing in all the evidence adduced by both parties to indicate, in the least, that PW1 had any other purpose to serve other than to be a witness at the trial of the appellant. The fact that the murder of the deceased occurred in her house was immaterial. It could have happened anywhere. I am of the view that PW1 was not a tainted witness.

This appeal arose from a criminal trial and the burden of proof rested throughout on the prosecution. The standard of proof must be beyond reasonable doubt. However, beyond reasonable doubt does not mean beyond all manner of doubt. See Sec. 138 of the Evidence Act 2011.

In the instant case, all through the trial and according to the testimonies of witnesses, there was no eye-witness to the crime and as such direct evidence as to the person that murdered the deceased was impossible. Circumstantial evidence was the only resort of the prosecution.

Circumstantial evidence is evidence of surrounding circumstance which by undesigned coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction.
Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground conviction, but when put together can constitute a good solid case for the prosecution.

Let us look at the pieces of circumstantial evidence.

There is no contention between the parties that Oghenekome Oboghor is dead. This is settled by the testimonies of PW1, PW2, PW3, PW4, PW5 and the appellant himself. Thus, the question on the first ingredient of the offence of murder is answered in the affirmative.

There is no doubt from the testimony of PW1 and PW2 and as corroborated by the appellant himself that there was no love lost between the appellant and the deceased. There was a lot of bad blood between them. The deceased was bitter about the frequent battering she got from the appellant to the extent of changing residence to avoid him. The appellant on the other hand, was bitter that the deceased had refused to stay in the relationship with him and instead went back to her former lover, Samuel. Let us first look at the mens rea for the offence of murder. Did the accused have the requisite mens rea to have murdered the deceased? There is no doubt as to the bad blood between the parties since the accused himself testified to how bitter he was with the deceased. He stated thus in Exhibit A at page 70 – 71 0f the record:

“It is true that I was not happy with the deceased and Samuel and that I had in different occasion threatened the life of the deceased and Samuel to see if both of them can separate themselves but no way…All the times I had gone to threaten the life of the deceased and Samuel, Solomon did not carry me there. I have my personal motorcycle which I used for movement. It is true that Solomon Diamond Enyike showed me where the deceased was residing at Oleh before her demise. It was true that I had spent a lot of money on the deceased before she decided to go away to marry Samuel”

PW1 in her testimony on oath at page 36 – 35 of the record stated that:

“There was a problem between the deceased and the accused. The deceased and the accused once lived together but the accused always beat up the deceased because of the suspicion that she goes out with other men even if these men were her relations.”

PW3 in his testimony on oath at page 37 of the record stated that:

“The accused beat up my daughter. As a result I asked my daughter to leave the accused. The deceased admitted that the accused incessantly beat her up. They went back to Taraba in 2002.”

On recent events, PW3 said at Page 38 of the record that:

“On 3-10-03, Solomon Diamond who first saw my daughter showed the deceased to the accused. In the evening of that day the accused, my daughter, the PW1 and Solomon Diamond came to my house. Accused and Solomon Diamond left while the deceased slept till 4-10-03. On 4-10-03 I saw my daughter’s bruise. It was caused by the accused.”

The appellant had, being an adult of sound mind and knowing the import of his words severally threatened the lives of the deceased, PW1 and the said Samuel. The Appellant had made do his promise once by hitting the deceased and PW1 with his motorcycle deliberately. This is contained in Exhibit A by his own admission. He admitted in Exhibit A that he has previously threatened to kill the deceased, PW1 and one Samuel whom she had chosen over him. Let us not forget the uncontradicted evidence of PW1 and PW3 as to the several beatings and battering to which the appellant subjected the deceased.

On whether it was the accused that caused the death of the deceased, PW1 on oath at page 35 of the record stated as follows:

“On 10/11/2003, I and my friend now late were playing ludo game in front of my house. It was in the afternoon. The accused came to see us. My late friend was girlfriend of the accused. In the evening of that day at about 10:00 p.m. I was inside my room asleep. My late friend was still outside. Suddenly I heard my late friend shouting my name- ‘Onakome, come to rescue me, the accused is killing me’. I ran out and saw my late friend. She was in a pool of blood. I started shouting. People ran to the scene. She was rushed to the hospital – General Hospital, Oleh. While being treated, I ran to the Police Station, Oleh. I made a complaint to the Police. Oghenekome Obogho died…”

As earlier stated, the prosecution had to resort to circumstantial evidence due to the paucity of any direct evidence pointing to the guilt of the accused. The learned trial Judge in a well-considered judgment relied on pointed circumstantial evidence in convicting the appellant.

Circumstantial evidence in this case was properly received because of its usefulness and necessity. This is because it enables a judge to raise a presumption of inference of a fact from other facts proved by direct evidence in the absence of direct evidence in proof of a fact. It is conceded that there is a need for the court to narrowly consider the evidence relied upon before raising the inference. In this case, ample circumstantial evidence narrowly considered were relied upon by the trial Judge. See Chima v. State (2001) 4 SCNJ 230.

There were also other incidents of prior quarrels between the appellant and the deceased which the learned trial judge took into overall consideration. The learned trial judge could not have ignored such evidence of previous bad blood between the appellant and the deceased. It goes to show motive and mens rea. See Ishola v. State (Supra).

It must be noted that the learned trial judge did not rely solely on the evidence of previous quarrels but on the other hand pointed circumstantial evidence-presence of the appellant at the scene of the crime prior to the time the crime was committed. I cannot but state that the circumstantial evidence against the appellant is overwhelming and leads me to no other conclusion that indeed he murdered the deceased.

There is no doubt and I am in complete agreement with the learned trial judge that the prosecution proved its case beyond reasonable doubt.

The judgment of Hon. Justice M. Umukoro in Charge No. HCO/4C/2005 delivered on 10th of October, 2005 is hereby affirmed. The conviction for murder and sentence to death by hanging of the appellant is hereby also affirmed. Appeal dismissed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. In my considered view his lordship has dealt incisively with the issues that call for determination in the appeal and I am in complete agreement with the reasoning and conclusions thereon. I wholeheartedly adopt the lead Judgment as mine as any attempt on my part to take up any of the issues dealt with in the lead judgment will only amount to a rehash of his lordship’s reasoning and conclusions.

In the circumstances, I find the appeal to be unmeritorious and dismiss the same. Accordingly, the judgment of the lower court delivered on 10/10/2006 in Charge No. HCO/4C/2005 convicting the Appellant for the offence of murder and sentencing him to death by hanging is affirmed.

TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment rendered and just delivered by the Hon. Justice H. M. OGUNWUMIJU, J.C.A., was graciously made available to me and I read it before now.

I am in complete agreement with the reasoning and conclusion contained therein. I have nothing more useful to add to it. I, too dismiss the appeal as lacking in merits.

The judgment of Umukoro, J., which convicted and consequently sentenced the appellant to death for murdering Miss Oghenekome Obogho is hereby affirmed by me, accordingly.

Appearances

Ayo Asala with A. E. AlagunFor Appellant

AND

M. A. Omakor ADPP Delta StateFor Respondent