KUNLE SHONUBI v. PEOPLE OF LAGOS STATE (2015)

KUNLE SHONUBI v. PEOPLE OF LAGOS STATE

(2015)LCN/7909(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of June, 2015

CA/L/509/2011

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHEN CAN THE DEFENCE OF ALIBI AVAIL AN ACCUSED PERSON AND THE BURDEN OF PROVING ALIBI

A plea of alibi postulates the physical impossibility of the presence of the accused at the scene of crime because of his presence at another place.
It has been defined as a combined defence of lack of actus reus and mens rea i.e. he was not at the scene of the crime and therefore neither in a position to have committed the offence alleged or participated in the commission or even had the intention of committing the crime. Therefore being a matter or facts peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of facts of Alibi, even though the primary or general burden of proof of guilt throughout is on the prosecution and does not shift. See GACHI v. STATE [1956] NMLR 333 AT 335.

The law requires that for a defence of alibi to avail one and succeed in raising doubt in his favour he ought to do certain things. More importantly, he ought to raise the defence at the earliest opportunity.
He ought to in his statement give such details and particulars of his where about so that the police can investigate it. This is the evidential burden on him in his defence of alibi. See ODUDIKAN v. STATE (1977) 2 SC. 21; ESSIEN VICTOR v. STATE (2013) LPELR-20749; ESANGBEDO v. STATE (1989) NWLR (Pt. 113) 87; AKPAN v. STATE (1991) 3 NWLR (Pt. 182) 646; ABUDU v. STATE (1985) 1 NWLR (Pt. 1) 55; OGALA v. STATE (1991) 2 NWLR (Pt. 175) 509. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHEN DOES THE DEFENCE OF ALIBI NEUTRALIZED

In SALE DAGAYYA v. THE STATE [2006] 25 NSCQR 775 @ 800-801 Tobi, JSC held:
“The defence of alibi crumbles the moment the prosecution gives superior evidence, that is more believable evidence than that of the accused by fixing permanently the accused person not only at the scene of crime but also in the commission of the crime, in a way that if a photograph was taken at the time, or point of the actus reus of the accused, it will clearly show or depict him in ‘romance’ with the crime he is charged with. The matter is as exact as that.”
In MOHAMMED v. STATE (2014) 12 NWLR (Pt. 1421) 387@ 419-420 the Supreme Court held also:
“In spite of the accused giving details of his whereabouts at the time of the commission of crime and who could confirm that if what is on ground from the prosecution fixes the accused at the scene of crime at the relevant time, the alibi is naturally neutralized or demolished”.
See also; BALOGUN v. A-G OGUN STATE (2002) 6 NWLR (Pt. 763) 512; ONUCHUKWU v. STATE (2002) 6 NWLR (Pt. 763) 517; SOWEMIMO v. STATE (2004) 11 NWLR (Pt. 885) 515; UKUNNENYI v. STATE (1989) 4 NWLR (Pt. 114) 131; BASHAYA v. STATE (1998) 5 NWLR (Pt. 550) 351. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: EXPERT OPINION; THE PROVISION OF THE EVIDENCE ACT ON EXPERT OPINION AND THE ADMISSION OF WRITTEN STATEMENTS OF INVESTIGATING POLICE OFFICER
Section 68 of Evidence Act 2011 states thus;
“1 When the court has to form an opinion upon a foreign law, custom law or custom or of Science or Art, or as to identify handwriting or finger impression the opinion upon that point of persons specially skilled in such foreign law, custom law or custom or science or art, or in question is to identity of handwriting or finger impressions, are admissible.
2. Person so specially skilled as mentioned in subsection (1) of this section are called experts.” (Underlining mine).
Section 37 defines hearsay thus:
“(a) Oral or written made otherwise than by a witness in a proceedings; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
Section 39 states:
“Statements by persons who cannot be called as witness. Statements, whether written or oral of facts in issue or relevant facts made by a person;
(a) Who is dead;
(b) Who cannot be found;
(c) Who has become incapable of giving evidence; or
(d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under Section 40 to 50.”
Section 49 –
“Admission of written statements of investigating police officer in certain cases.
Notwithstanding anything contained in this Act or any other law but subject to this section, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the court if –
a. The defence does not object to the statement being admitted; and
b. The court consents to the admission of the statement.”
In this case Appellant did not object to the admissibility of the report and the court consented to the Exhibit by used. See JOHN v. STATE; IGU v. STATE (Supra). On the other hand to stretch the arguments of the Appellant that the evidence is not admissible as it (assuming the PW6 did not participate in the analysis). A combined reading of Sections 68, 39(d), 42 of the Evidence Act allows this evidence and cures any defect therein if any.
In the book ‘Introduction to Scientific Crime Detection by H. J Walls on forensic science has this to say:
“…the British expert used to spend much of its time in the witness box than his counterparts elsewhere did. He used to have to appear in person, sometimes at least twice in every contested case, where in most European countries agreed expert evidence can be accepted by the courts without the expert appearing in person and in the USA the defence frequently stipulates that it accepts the experts report and does not insist that he be called.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: PROOF IN A MURDER CASE; THE FACTS THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT IN A CASE OF MURDER

In NASIRU v. STATE (1992) 2 NWLR (Pt. 589) 87 the court held per Uwais, JSC that:
“Section 149 of Evidence Act enables a court to accept the proof of death by circumstantial evidence. This has been made so because in criminal cases the possibility of always proving the offence charged by direct and positive testimony of eye witness is rare. It is therefore permitted to infer, from the facts proved, other facts necessary to complete the elements of guilt or establish innocence.”
See also OKORO v. STATE (2012) LPELR-1979 3 (CA) the court held that for the offence of murder to be proved, the prosecution must adduce clear evidence of the following facts:-
1. Death of the Deceased.
2. Act or Omission of accused which caused the death of the deceased.
3. That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence Section 316 of Criminal Code.
Proof of intent could be either direct or inferred from the surrounding circumstances. The onus is on the prosecution to prove intent. It may rely on the presumption that a man intends the natural consequence of his act, but in that case it is also open to the accused to show that the death which occurred is purely accidental and that he had not intended to kill or cause harm.
On the standard of proof there are ways of proving the guilt of an accused beyond reasonable doubt. The law is that the prosecution can prove the guilt of an accused beyond reasonable doubt in three different ways. There can be proof by the evidence of an eye witness, proof by conclusive circumstantial evidence and proof by the evidence of admissible extra judicial confession statements made by the accused person. See BASSEY DAN UDO EYO v. THE STATE (2012) LPELR-20210 (CA); NWOKEARU v. STATE (2013) LPELR-20642 (SC); AJIKAWO v. ANASANDO (NIG.) Ltd (1991) 2 NWLR (Pt. 173) 359. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; WHETHER IT IS EVERY CONTRADICTION INCONSISTENCIES IN EVIDENCE THAT IS FATAL TO THE CASE

In ATAHAD FRIDAY v. STATE 42 NSCQR 550 AT 572 the court held:
“It is not every trifling inconsistence in the evidence of the prosecutions witness that is fatal to the case it is only when such contradictions inconsistencies, conflicting or substantial crucial and fundamental to the main issues in question in the mind of the trial judge an accused may be entitled to benefit…”
In the same vein, in AFOLABI v. STATE 43 NSCQR VOL 43 227-264-265 Adekeye, JSC held that:
“Such contradictions must be substantial or fundamental to the main issue in question before the trial court and therefore necessary create some doubt in the mind of the court…” This evidence is not conflicting or inconsistent as to cast a doubt upon the guilt of the accused. The circumstantial evidence added up and coupled with the forensic result points to the Appellant and no other in this case, Appellant has not disputed that he was not present and most importantly he testified at the trial that he could not say where he was at that time. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

KUNLE SHONUBI Appellant(s)

AND

PEOPLE OF LAGOS STATE Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Oluwayemi, J. of the High Court of Lagos delivered on the 3rd December, 2010, wherein the Appellant was found guilty of murder under Section 316 of the Criminal Code Law of Lagos State 2003 Cap C17 Vol. 2 and was sentenced to death by hanging.

The Appellant being dissatisfied with the judgment appealed to this court via a Notice of Appeal dated 2nd March, 2011.

The facts of the case was that on 4th January, 2007 one Wilma Steen came back from shopping with her friend and found her daughter Miss Annuimeke Steen in her bath with tap running and the bath full of water. She raised an alarm which attracted a call for help of security men on ground, including Policemen attached to Shell Nigeria Exploration Petroleum Company and Medical team around who confirm the girl dead.

Due to cause of her death, the environment was cordoned and (9) nine suspects were arrested; but only the Appellant was arraigned as a result of the outcome or forensic analysis carried out both in Nigeria and United Kingdom.

Upon the information filed on 20th November, 2008, the Respondent called 13 witnesses while Appellant testified and called (3) three other witnesses. At the end of the trial, the court found from the scientific evidence, Prosecution Witnesses as well as the surrounding circumstances that the Appellant was guilty of the alleged crime. The trial Judge therefore convicted him to death by hanging.

Appellant filed 12 grounds of appeal and argued same in the brief of argument dated and filed 14th February, 2014. It was settled by Sikiru Akinrele of S. F. Akinrele & Co., while Respondents brief is dated and filed on 13th October, 2014 but deemed on 23/10/14. Same was settled by Ade Ipaye Esq., Honourable Attorney General and Commissioner for Justice Lagos State; E. I. Alakija (Mrs.) (D. DPP); Adebayo Haruna Esq. and E. R. Agu (Mrs.).
The Appellant also filed a reply on points of law dated and filed on 6/2/15.

The Appellant formulated (11) eleven issues for determination thus:

(i) Whether exhibit D, the forensic analysis carried out by some 38 scientist, none of whom was called as witness but tendered by a 3rd party who was not a member of the team and did not participate in the research does not amount to documentary hearsay evidence and thus admissible – Ground One.

(ii) Whether from the Record of the court, the Appellant did not give clear evidence of the movement throughout the day of the incident – Ground Two

(iii) Whether the evidence of the Appellant that he went to flat 503 to use hot water to take his bath was refuted and made him guilty of the charges for murder – Ground Three

(iv) Whether the evidence of PW11 that she saw the Appellant on her corridor while she was in front of flat 302 opposite 303 coming up and going upstairs was so unequivocal and amounts to entering or coming out of flat 303 where the alleged murder was committed – Ground four

(v) Whether the trial judge was right in that the Appellant left the premises immediately after the incident without permission and thereby liable for the charge of murder -Ground Five

(vi) Whether the fact that the Appellant wore multiple clothing on a chilly January day and the evidence of PW5 that the CCTV machine did not work between 31st of January, 2006 (sic) and 4th January 2007 when the Appellant was on duty, without more, amount to the guilty of the Appellant convincingly with the charge of murder alleged – Ground Six

(vii) Whether there was a cogent evidence of crime of theft of N1.5m on record against the Appellant which thereby linked the appellant convincingly with the charge of murder alleged – Ground Seven.

(viii) Whether the learned trial judge could rely on the evidence of PW6 on the basis of Exhibit “D” which he was not part of the makers and also believe and rely on the evidence of PW7 to disbelieve the Appellant and DW4 on his movement from Ikoyi to Oyingbo to repair the Appellant’s car – Ground Eight.

(ix) Whether the trial judge was right when she held that the PW7, the Investigating Police Officer did his duty creditably well and that he thoroughly investigated the Appellant’s alibi and the where about of his car – Ground 9 & 10.

(x) Whether the disparities in the written statement of PW11 made to the police on 23/3/2007 and her oral statement made in court on 26th June, 2009 are not material contradictions and her evidence remains equivocal. – Ground Eleven.

(xi) Whether a trial court has the duty to properly consider/appraise all the facts and legal arguments placed before the Court. – Ground Twelve.

The Respondent formulated two issues as follows:

(a) Whether the defence of alibi as raised by the Appellant could avail him in the circumstances of this case?

(b) Whether, considering the totality of the evidence before the court, the prosecution was able to prove beyond reasonable doubt the guilt of the Appellant for the murder of Miss Anniemeke Steen.

I shall highlight the argument on the issues formulated by the parties separately for purpose of clarity and narrow down the issues for determination later in the judgment.

On Issue One, Counsel submitted that the trial judge based his conclusion of guilt of the Appellant on Exhibit D, the DNA analysis document which was made in UK and Exhibit E, the Opinion of PW6 that from the evidence of PW6; he was not a member of the team that made Exhibit D and never held himself out to be one that made it; that Exhibit D was made in UK by 38 scientist with listed names at page 196 Vol. 2 of the Record and none of them who signed the list was called as a witness and no reason was adduced for the Respondent’s failure to call them as witnesses.

He submitted that Exhibit D is based on Hearsay documentary evidence. He relied on ONUOHA v. STATE (2010) 16 NWLR (Pt. 1219) 364 @ 400 para C-E; ALAO v. AKANO (2005) 5 NWLR (Pt. 264) 799; JUNAIDU v. ABDULLAHI CA/J/09/2009 of 13 July, 2011; ABADOM v. STATE (1997) 1 NWLR (Pt. 479) 1 @ 24 to the effect that the contents cannot be relied upon. He relied on OKUARBO v. AIGBE (2002) 9 NWLR (771) 29; AGBEYIN v. STATE (1967) NMLR – to the effect that they had not seen the report as it was tendered during the examination in chief of PW 6 without prior notice or for knowledge of it, for the Appellant to be able to cross examine on it. He asked the court to find in favour of the Appellant.

On Issues 2 & 3, he submitted that Appellant gave clear evidence of his movement throughout the day of the incident – 4th January, 2007 and same was not faulted and PW3 evidence attested to the movement of the Appellant but the court refused to consider them though the evidence were not controverted. Appellant said he went to flat 503 to take his bath and later went with his mechanic to Oyingbo, the Mechanic testified and confirmed same as PW 4. He relied on N.S.I.T.F.M.R. v. KLIFCO (NIG) LTD (2010) 13 NWLR (Pt. 1211) 307, to submit that the failure to consider same will amount to injustice. He also referred to GABRIEL v. STATE (2010) 6 NWLR (Pt. 1190) 250.

On whether his evidence of alibi was refuted and made him guilty of the charge, he stated that this evidence is contained in page 246 lines 36, 189, & 190 of the record and the court did not consider them nor did the prosecution rebut the evidence. He submitted that it should be regarded as established. He relied on OLATEJU v. L & H KWARA STATE (2010) 14 NWLR (PT. 1213) 297 @ 321 para A. Counsel further submitted that the trial court held “that on investigation, no bath soap or sponge was found in room 503” but that the police did not testify that they carried out investigation that the fact of 503 nor was the accused asked whether he took his sponge and bathing soap to flat 503.

He submitted that the effect is that the court created a new case for the prosecution. He relied on VICTINO FIXED ODDS LTD v. OJO (2010) 8 NWLR (Pt. 1197) 486. He urged the court to find in favour of the Appellant.

On Issue four, he submitted that the evidence of PW11 that she saw the Appellant on her corridor while she was in front of flat 302 opposite flat 303 coming up and going down stairs was not equivocal and did not amount to entering or coming out of flat 303 where the alleged murdered was committed and that PW11 was doubtful on the person she saw. He submitted that the conclusion of the trial judge that PW11 saw the Appellant amounts to substituting her own supposition for the testimony of PW11. He relied on ADELENWA v. STATE (1972) 10 SC 13 @ 19; ANKWA v. STATE (1969) 1 ANLR 133 at 136; GABRIEL v. STATE (2003) 6 NWLR (Pt. 1190) 280 at 320 Para G; QUEEN v. OBASA (1962) 1 All NLR 651 @ 656 and urged the court to further find in favour of the Appellant.

On issue five, counsel submitted that Caldwell Manager to whom the Appellant had the duty of reporting to was not in the premises when the Appellant went out with his mechanic and he had informed his co-staff Mr. Collins (The Tiller) that he was going out and PW3 testified that he had told him to tell Mr. Onesimus, the facility Manager that he went out to repair his car, and that in spite of this, the court held that the Appellant went out without informing anyone amounted to creating a case where there was none.

He relied on IWARA v. ITAM (2009) 17 NWLR (Pt. 1170) 337 at 375-376 paras. H-A that the court should find for the Appellant.
On issue six, Appellant counsel submitted that to wear multiple clothings on a chilly day January does not indicate the commission of a crime on the part of the Appellant, that there were undisputed facts upon the Appellant’s testimony that he did not know how to operate the CCTV Cameras and he could not have informed the manager about the condition of CCTV cameras when he did not know how to operate it or know whether it was recording or not; that the security men and not the Appellant had the duty of monitoring movement on the monitors vide the CCTV Camera. He said there was no evidence in court to confirm that the CCTV recorder did not work and the prosecutor did not call the professionals who handled the CCTV – Mr. Itiola Gbadebo & Engr. Edun whose names were listed and were not called but their statements were tendered. He submitted further that Appellant cannot be guilty for the duty of another or negligence of same. He referred to ADESUNLOYE v. FRN (2002) 9 NWLR (PT. 773) 600 @ 674-675; MOBIL PRODUCING NIG. UNLIMITED v. UMENWEKE (2002) 9 NWLR (Pt. 773) 561 paragraph D-F.

He submitted that PW 5 & 7 attempted to link the Appellant with the crime, that when the CCTV was played – it did not record the event of 31st December, 2006 – 4th January, 2007; that PW12 referred to a theft of N1.5m that occurred in 2006 when Appellant was on duty; when the CCTV was also tampered with during the period. He said he only read the report which he said was never brought to court. He submitted that this was hearsay evidence that throughout the trial Mr. Itiola Gbadebo & Engineer. Edun was not called to testify on what the IPO & PW 7 stated neither did they call the CCTV experts who resides within Lagos and whose address is known to the prosecution that these were material witness who could explain the workings of the CCTV.

He relied TEGWONOR v. STATE (2008) 1 NWLR (Pt. 1069) 630 @ 664 paras B-D.; STATE v. NNOLIM (1994) 5 NWLR (Pt. 354) @ 406 paragraph C-D. He submitted that failure to call material vital witnesses vitiates the case of the prosecutor.

On issue seven, Appellant counsel submitted that there is no cogent evidence linking an accused person with a past allegation of crime and that inference of guilt of that crime cannot be a basis for conviction for a subsequent crime.

Appellant counsel stated that there was nothing on record which implicated the Appellant of the theft of N1.5m or any sum of money or property at all. That there was no link between the theft of N1.5m and the death of the deceased and no proof on same either. He submitted that at most it was a case of suspicion, which does not amount to prima facie evidence. He relied on OLADOTUN v. STATE (2010) 15 NWLR (Pt. 1217) 490 @ 521 paras D-E.

On issue eight, he submitted that the trial court relied on the analysis by PW6 which was carried out by 38 scientists in the United Kingdom and PW6 was not one of them, that none of them was called as a witness and the opinion was based on the DNA analysis. He said the IPO’s evidence in chief is to the effect that he told the Appellant to enter into the police vehicle and take him to the mechanic shop at Oyingbo but refused. That on another day, the IPO said he took the Appellant to Oyingbo and he stayed in the car while Appellant got down and later came to tell him that the mechanic was no longer there that the IPO did not ask questions from other people but allowed the Appellant who spoke Yoruba to someone, that evidence of IPO should be taken with a pinch of salt. He relied on STATE v. AZEEZ (2008) 14 NWLR (Pt. 1108) 439 @ 465 paragraph D-F; OLAIYO v. STATE (2010) 3 NWLR (Pt. 1181).

He referred to evidence of Mr. David Dosu the mechanic who confirmed that he went to repair the car with the Appellant. And that nobody looked for him at Oyingbo concerning the Appellant.
He submitted that from PW3, PW5, PW7 & PW12 the Appellant validly raised the defence of alibi and proved same while prosecutor failed to disapprove same.

On issue nine, the Appellant counsel submitted that the evidence before the court did not give evidence to the IPO (PW7) that he did not know that the appellant’s car was in the premises for days before it was moved to Olateju Street Mushin, PW7 did not produce the officers. PW7 did not show that the materials collected from the Appellant were not tampered with or could not have been tampered with or not. That PW7 did not produce the CCTV experts and that PW7 held himself out as a corrupt officer. That the IPO did not do his duty creditably well, and he did not investigate the Appellants alibi or the car contrary to the trial judge’s findings.

On issue ten, he submitted that the contradictions in the evidence of a prosecution witness must of necessity be resolved in favour of the accused person. He relied on AKOSILE v STATE (1972) 5 SC 322; OLABOGU v. STATE (1974) 9 SC 1, 23-24; OJO v. F.R.N. (2008) 11 NWLR (Pt. 1099) 467; OLADOTUN v. STATE (2010) 15 NWLR (Pt. 1217) 490 @ 517.

On issue eleven as to whether a trial court has the duty to properly consider/appraise all the facts and legal arguments placed before the court, he submitted that the court failed in this respect and it amounted to perversion of justice. He referred to ONUOHA v. STATE (supra); MORKA v. STATE (1998) 2 NWLR (Pt. 537) 249; IFEJIKIRA v. STATE (1999) 3 NWLR (Pt. 593) 59; EMEKA v. STATE (1998) 2 NWLR (Pt. 101) 23 @ 25; CHEDI v. A-G FEDERAL (2006) 13 NWLR (Pt. 997) 308 @ 325 paras. E-G; BOMS v. STATE (1971) 1 All NLR 334 @ 337.

He contended that One Musa Muhammed had the back doors keys to the apartment and he was not interrogated and there was no sign of forceful entry in the house and that the court did not consider these evidence. He relied on AKOSILE v. STATE (1972) 5 SC 332 and also submitted that the court failed to consider or evaluate other vital facts and evidence.

On the Scientific evidence, Appellant Counsel submitted same can be of great assistance to solve crime. He referred to Forensic Science in Criminal Investigation and Trials (4th Edition) by Dr. B. R. Sharma to submit that where the officer who collects clue materials used in scientific investigation lacks the proper credentials, he will not be able to collect clue materials or real evidence and there will be doubt as to the proprietary and genuineness of the material or real evidence. He referred to guides as to how these evidence are to be collected and preserved in pages 35-37 of the .

Counsel further submitted that in this case the procedure by which the clothing of the Appellant were collected as clue materials fell short of the laid down procedure and that this calls for questioning of the authenticity and integrity of materials used for DNA analysis.
Counsel submitted that in the instant case, a security staff of Shell PW5 took the Appellants clothes from him for safe custody and returned same after checking it and collected them after 3 days before it got to the forensic department and then the stain surfaced and that it was Shell (the complainant) that even facilitated the forensic report and that PW6 stated that there might be possible direct contact between the Appellant and the deceased which could have accounted for the findings and there could be a possibility that the clothing was used to contact the corpse so as to implicate him. He cited STATE of RALASTHAN v. RAM AIR 1980 cri LJ 929; ISHOLA v. STATE (1969) NMLR 259.

He referred to finger prints taken at the scene of the crime including that of the accused and also from the body of the deceased and that the prosecutor failed to tender same and this amounted to withholding of evidence pursuant to Section 167 of Evidence Act.
On the whole he urged the court to acquit him and discharge him.
As earlier stated, the Respondent formulated two issues. I shall analyse the argument in respect forthwith.

On issue one, whether the defence of alibi as raised by the Appellant could avail him in the circumstance of this case? Counsel submitted that there was uncontroverted evidence that Appellant was within the premises and had proximity to the crime scene between 9am and 10am when the deceased was killed; he was also seen by PW11 at the corridor outside flat 303 about 8:45am till 9:00am. Nine suspects were thoroughly interrogated with blood and tissue samples collected from them and their possessions for forensic analysis done both locally and abroad. The resulting report unequivocally narrowed down the group of the suspects to the Appellant alone. This evidence stood unchallenged. He cited SAMUEL ATTAH v. STATE (2010) 10 NWLR (Pt. 1201) 190; EKE v. STATE (2011) 5 NWLR 589 and defined alibi to mean:

“that he was not at the scene of the crime”

He submitted that Appellant had testified that he left the premises at 10:00am with his mechanic DW4 to fix his car at Oyingbo and did not come back till 1:00 pm but that the defence was shaken up badly, the witness of the defence, DW4 later stated that he left the premises with Appellant at 8:45am and further stated that Appellant was lying when he said they both left the premises by 10am; that PW 11 had confirmed she saw Appellant around the scene at 8:45am- 9:15am which the Appellant confirmed. On these he submitted that evidential burden to establish the defence of alibi as raised by the Appellant rest on him. It is a matter peculiarly within his knowledge; it was his duty to establish that he was somewhere else when the crime was committed. He referred to RAPHEAL NWABUEZE & Ors v. STATE (1988) 7 SC 157 and Section 140 of Evidence Act 2011.

He submitted that the defence of alibi failed to find support or sustenance, considering the inconclusive and even contradictory evidence purportedly led by Appellants and his witnesses in proof of same.

On issue two, whether considering the totality of evidence before the court, the prosecution was able to prove beyond reasonable doubt the guilt of the Appellant for the murder of Miss Anniemeke Steen; Appellant submitted that learned trial judge considered the evidence put forward by the prosecution and the defendant before coming to the conclusion that the Appellant was guilty of the one count charge of murder, and that the court did not only rely on the oral evidence of the prosecution witness but also on forensic report contained in Exhibits D & E as held in KASA v. STATE (1991) 5 NWLR (Pt. 344) 269.

He submitted that the forensic examination carried out repeatedly pointed to the Appellant as the profile of the deceased was found on the shirt of the Appellant, so also was the profile of the Appellant found on the nail clippings of the deceased and this was the most objective and conclusive evidence that can possibly be adduced in the circumstances as it was not only convincing but overwhelming and unchallenged by the Appellant and heavily supported by KASA v. STATE (supra)

Counsel submitted that proof is beyond reasonable doubt and not proof beyond a shadow of doubt but should at least mean proof to the satisfaction of the judge. He referred to MILLER v. MINISTER OF PENSION cited in the case of OMORHIHI v. ENATEVWERE (1988) 1 NWLR (Pt. 73) 746. He referred to different ways of proof as stated in ADIO v. STATE (1986) 2 NWLR (Pt. 24) 581; EMEKA v. STATE (2001) 32 WRN 21 @ 45; ESANGBEDO v. STATE (1989) 4 NWLR (Pt. 113) 57. He submitted that the prosecution had proved its case and it was left to the defendant to shake it.

On the issue of circumstantial evidence, Respondent Counsel stated that it must be cogent, complete, unequivocal, compelling and lead to the irresistible conclusion that the prisoner and no one else is the murder. It must not leave room for reasonable doubt. It must be mathematically accurate. He referred to STATE v. OMISORE (2005) Q.C.C.R. Vol. 1, 1-26, pg. 199 at 202; PETER v. STATE (1997) 12 NWLR (Pt. 531).

He submitted that this precondition has been satisfied. He referred to evidence of prosecution on the record and the case of MOHAMMED v. STATE (2007) 11 NWLR (PT. 1045) 303 @ 327; IKOMI v. STATE (1986) 3 NWLR (Pt. 28) 340.

Respondent counsel in response to the Appellants submission, in faulting the procedure with which clothings was collected and custody of same, stated that where evidence is admissible and relevant in law, issue of proper custody is irrelevant to the issue of its admissibility. The ultimate objective of the material collection and forensic examination process is to establish the truth of the event unless serious mistake or omission, the outcome has to be given due weight. He said all samples from (9) nine suspects were taken and that there were blood samples that was found to have matched that of the appellant and uncontroverted evidence that the finger nail clipping of the deceased also matched the DNA of the Appellant.

He urged the court to safe guard the integrity of the process given that forensic examination is not legally established principles in Nigeria.

Respondent counsel further stated that the objection of the Appellant on Exhibits D & E is belated and that they certified the documentary hearsay. He relied on DANJUMA RABE v. FRN (2013) LPELR-20163 (CA); JOHN v. STATE (2011) 18 NWLR (Pt. 1278) 353; OSENI v. STATE [2012] 5 NWLR (Pt. 1293) 351; IGRI v. STATE (2012) 16 NWLR (Pt. 1327) 522.

Counsel further submitted that PW6 who relied on and tendered the forensic report gave his educational background at page 230 and stated that some of the items were taken to London because the facilities for carrying out the examination were not available in Nigeria and that PW6 confirmed that he was indeed part of the team that carried out the analysis in London and that this has knocked out the argument of the Appellant. He relied on LAWRENCE OGUNO & ORS v. STATE (2013) LPELR-20623 (SC); BUHARI v. OBASANJO (2005) 19 NWLR (Pt. 59) 44; ADEGBOYEGA IBIKUNLE v. STATE (2007) 2 NWLR (Pt. 1019) 546 @ 572.
Counsel submitted that the Appellant’s brief was made of submissions on facts which ought to have been evidence before the court and that the Appellant had opportunity to subpoena Musa Mohammed but failed to do so.

On contradiction, he relied on JIMOH SALAWU v. STATE (2011) LPELR-9351 SC to submit that if not substantial it goes to no issue. He relied on IGBI v STATE (2003) NWLR (Pt. 648) 169.
Appellant on reply on points of law submitted that there was no record of when a suspect was interrogated with blood and tissue samples which narrowed down to the Appellant. He cited AJE PRINTING (NIG) LTD v. EKITI L.G.A. (2009) NWLR (Pt. 1141) 512 @ 530 paras E-F.

On time conflict in the evidence of PW3 security men and the mechanic DW4, he submitted that Appellant was under intense pressure from security officers at the time of the statement and such cannot stand. He referred to AJOSE v. F.R.N. (2011) 6 NWLR (Pt. 1244) 465; OWIE v. IGHIWI (2005) 5 NWLR (Pt. 917) 184; OGUN v. AKINYELU (2004) 18 NWLR (Pt. 905) 362; IKOLI v. AGBER CA/MK/139/2011 at page 14.

He submitted that the prosecution simply tailored the exhibits tendered as they had been clearly tampered with to indict the Appellant. He submitted that in criminal trials, it is the duty of prosecution throughout the trial to prove its case. He relied on RASAKI v. STATE (2011) 16 NWLR (Pt. 1273) 251; Section 36 of Constitution of the Federal Republic of Nigeria, 1999 and Section 138 of Evidence Act. He stated that the law relating to circumstantial evidence is aptly explained in OMOREGIE v. STATE (2009) 10 NWLR (Pt. 1150) 493 at 503.

Appellant counsel submitted that a party can challenge inadmissible documentary evidence on appeal or final address as contained in the submission of counsel. He referred to HARUNA v. K.S.H.A. (2010) 7 NWLR (Pt. 1194) 604 @ 626-637; ETIM v. EKPE (1983) 1 SCNLR 120; OSENI v. DAWODU (1994) 4 NWLR (Pt. 339) 390; ALAO v. AKANO (2005) 11 NWLR (Pt. 935) 160; ONOCHIE v. ODOGWU (2006) 6 NWLR (Pt. 975) 65.

He referred to the list of scientist on page 196 vol. I and that the same PW6 is not contained therein. He stated that the court is being misled. He emphasised that PW6 did not bring the result from United Kingdom and the Appellant did not get a chance to ask questions. He submitted that nothing was on record that shows that Musa was eliminated and that failure of the prosecution to bring Musa or erode any doubt that it was not Musa is fatal to prosecution’s case. On the whole he submitted that prosecution failed to prove its case and the court should discharge and acquit the Appellant under the circumstance.

I must state clearly that the essence of grounds of Appeal is to avail the opposite party the notice of the appellant’s complaint in clear and precise terms while the particulars of errors highlight the complaint against the judgment appealed against. See DIAMOND BANK LTD v. PLC LTD (2009) 18 NWLR (Pt. 1141) 67.

Appellant duplicated and multiplied argument in its brief of argument and introduced evidence that ought to have been adduced at the trial. The Respondent issues fit properly into the grounds of appeal filed by the Appellant and arise therefrom the grounds.

The way the issues are formulated and the grounds of appeal as presented before the court made the determination of the appeal cumbersome and tedious as well as time consuming. The issues and the evidence upon which trial are based overlap and are interwoven to the extent that they are best merged together and issues formulated thereon to get a better grip of the complaint of the Appellant. See PORT & CARGO HOLDING v. MIGFOR (2012) 18 NWLR (Pt. 1333) @ 533-577 Galadima, JSC.

To this extent, I am of the firm view that the issues that arise for determination are:

(a) Whether the alibi offered by the Appellant was sufficient to absorb time of possibility of committing the crime – Issues 2, 5, & 8 of the Appellant and 1 of Respondent.

(b) Whether the prosecution has proved from circumstantial and scientific evidence adduced that the Appellant and no one else is liable for the murder. Issues 1, 3, 6, 4, & 9 of Appellant & 2 of Respondent.

(c) Whether the evidence of previous character of a suspected theft of N1.5m against the Appellant was admissible under the circumstance in proof of the murder.

(d) Whether there was a material conflict in the evidence of PW10 and PW11 that manifestly affected the judgement.

ISSUE 1

This issue deals with whether the alibi offered by the Appellant was sufficient to absorb him of the possibility of committing the crime. This is an amalgamation of issues 2, 5, 8 of the Appellant’s & issue 1 of Respondent.

In the case at hand, Appellant stated during investigation and in his statement, evidence in court – that he was at the entrance of flat 303 between 9:00am-9:30am to change bulb but he had no job card on it, which was required in a duty of that nature. From evidence of PW5 – ACP Onyejekwe, he denied being around the flat 10 times until he admitted that he was confronted by PW11’s evidence that he was seen around there.

PW7 – investigated the alibi that he went to his mechanic at 10am and returned at 1:00pm. The mechanic could not be found at the place Appellant took his car to Oyingbo. He was said to have moved after the scene, he took them to the house he did not say the car was in front of the Cadwell Estate, he said it had been moved from the house, he did not give particulars of the location of the car he himself drove to the office.

The said mechanic who testified as D4 said he came to Cadwell Estate at 8:00am but left with the Appellant at 8:45am. Meanwhile, Appellant was confirmed seen by PW11, Mrs. Ellan, and Security between 9:00-9:30am and 10:00am respectively. The Appellant however said he left at 10am. Therefore the Mechanic could not be telling the truth, he could not have left the premises at that time. PW5 stated that he said he took his bath at flat 503, but his soap dish and sponge was at the quarters where he usually took his bath and it was not the practise for staff to bath at such location. Appellant also said he did not know anything about the CCTV but evidence was led that his office was at the CCTV room, he had access to it, he could put it off and that his training and profession made it possible to operate the CCTV. PW3 the Manager testified that it was unprofessional for employees to leave the office for more than 30mintues to eat but that the Appellant left for over four hours (4hrs) and could not explain his where about in spite of his schedule to oversee the generator, epileptic lift, electrical faults and CCTV. PW1 stated (security) did not see him go out between 6:00am-10:00am.

From the above, it is apparent that the Appellant’s alibi does not hold any water. He provided insufficient facts particularly of his whereabouts. Most importantly he testified unequivocally that he could not explain where he was between 9:00am-9:30am. This knocked out his alibi; the security looked for him for 30 minutes (when his mechanic came between 9:00am-9:30am) within the premises. From the totality of evidence on record, the alibi has not been proved on facts peculiar with the knowledge of the Appellant. It had been investigated by prosecution and the possibility of him being at the crime scene proved in addition he admitted seen PW11 confirming beyond reasonable doubt that he was physically present at the time around the vicinity.

Appellant mentioned that Mohammed (General House Keeper) was not investigated; Mr Sloane an occupant of one of the flats stated that he was with Mohammed in his own flat which absolved Mohammed.

I resolve this issue against the Appellant.

ISSUE 2

This issue is drawn from issues 1, 3, 4, & 9 of the Appellant’s issues and issue 1 of the Respondent’s issue, basically whether the prosecution has proved from circumstantial and scientific evidence adduced that the Appellant and no one else is liable for the Murder.
The Appellant contended that the forensic report was a documentary hearsay and was inadmissible since PW6 who tendered it did not have his name included as one of the scientist that worked on it.

I have reproduced arguments of both parties on this particular issue. However, I must state that the use of forensic analysis has not really taken firm ground in Nigeria especially in proof of murder cases , except for drug and fingerprints in fraud and election malpractices. The Illustrated Medical Dictionary 3rd edition page 238 defined “Forensic Medicine” thus;
“Forensic Medicine” is a branch of medicine concerned with law, especially criminal law. The forensic pathologist is a doctor who specializes in the examination of bodies when circumstances suggest death was unnatural. Forensic Scientist use laboratory methods to study body fluids (such as blood and semen) found on or near the victim and compare them with those from suspects. They are also trained in ballistics and identification of fibers from clothing. In addition, forensic scientist may advice on blood groups and genetics fingerprinting in legal investigation.”
In Forensic Science, Introduction to Scientific Crime Detection – by H. J. Walls 2nd edition page 228 the author posited thus:
“What courts requires of the expert maybe summed up as: impartial, reliability, clarity, relevance forensic science service which is to command credence and respect must obviously be and be known to be completely objective and impartial”.

Therefore against this background the evidence on record is that it was tendered by PW6 who said he is an Assistant Superintendent of Police from the Police Forensic Laboratory and that he received two letters together with the exhibits from Deputy Commissioner of Police, Panti, Lagos to Commissioner of Police, FCID Alagbon. He itemised the exhibits as; 1. Finger Prints 2. Mug shots 3. Bio-data Oral swoop and the second group: Samples of hair of nine suspects.

PW6 testified and gave his credentials as BSc, MSc, Biochemistry, MSc Pharmaceutics, MSc International Laws and Diplomacy, a student Doctor of Philosophy (Phd) Phamatanoc at Unilag. He has undertaken training in different Schools of Forensic British Metropolitan City Laboratory, with the French Technical Police and has worked in the Forensic Laboratory in Lagos since 1993. He testified that he carried out preliminary test; in Nigeria for some parts while he sent the second group to London including the Appellant’s shirt, CCTV and DNA of the deceased, finger nail clippings, because the equipments for the analysis were not here in Nigeria. He wrote a report Exhibit E upon the London analysis being sent to him. From pages 286 of Vol. 1, it can be seen that the analysis was sent from the Nigerian police to London Forensic Homicide Service London Police U.K. (Metropolitan Police). Pages 98, 101, 141-142 of vol. 2 shows some analysis of items sent were belt swobs, shirt of Shonubi Mohammed’s sample.
Therefore against this background, is the presence of the 39 Scientists in UK who worked on various aspects necessary?
In BLESSING v. FRN [2012] LPELR- 9838 (CA); [2013] 12 WRN 36, the Court of Appeal held that:
“It is not necessary for forensic expert who analysed the drug and issued the report Exh. 4 to come to court, in person to tender the document for it to be admitted. What governs admissibility is relevance necessary for forensic expert pleaded and is properly tendered in the form and by the person it should be produced and if not opposed and consented by the court such a party cannot object on appeal.”
See also OSENI v. STATE [2012] NWLR (Pt. 1193) 31; LPELR-7833 (SC).
The PW6 said he sent the samples to London with the exhibit and he received the report used in the analysis to mismatch the one done in Nigeria to get the result and each time he did it, same result was reached. I have perused the report it is largely in forensic language and only a Forensic Scientist can interpret same which in this case is PW6. He is the proper person in law to tender same. He authorised the report sent and followed up and also received same. More importantly, it was sent to a police department in London Metropolitan Police. In my view an apt analogy is a doctor sending samples to another specialist laboratory for analysis for the purpose of diagnosis in respect of a patient and the result is sent to him, do we then ask the laboratory scientist to come and present the report. The doctor who acted on it can tender what was done upon that result.
In my view there was no need for PW6 to be physically present with the London team. He is a qualified Forensic Officer and the report does not qualify as documentary hearsay evidence, unlike if he did not have anything to do with it and merely sent the whole thing to London. The scenario is different. The Nigeria team had ascertained the truth of who they suspected of committing it from the exhibits and sent the exhibits to London for more scientific and technical analysis upon a conclusive test could be done. He could have been asked on the processes related to making of the report but no question was asked. He wrote a report based on Exhibit D.
Section 68 of Evidence Act 2011 states thus;
“1 When the court has to form an opinion upon a foreign law, custom law or custom or of Science or Art, or as to identify handwriting or finger impression the opinion upon that point of persons specially skilled in such foreign law, custom law or custom or science or art, or in question is to identity of handwriting or finger impressions, are admissible.
2. Person so specially skilled as mentioned in subsection (1) of this section are called experts.” (Underlining mine).
Section 37 defines hearsay thus:
“(a) Oral or written made otherwise than by a witness in a proceedings; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
Section 39 states:
“Statements by persons who cannot be called as witness. Statements, whether written or oral of facts in issue or relevant facts made by a person;
(a) Who is dead;
(b) Who cannot be found;
(c) Who has become incapable of giving evidence; or
(d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under Section 40 to 50.”
Section 49 –
“Admission of written statements of investigating police officer in certain cases.
Notwithstanding anything contained in this Act or any other law but subject to this section, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the court if –
a. The defence does not object to the statement being admitted; and
b. The court consents to the admission of the statement.”
In this case Appellant did not object to the admissibility of the report and the court consented to the Exhibit by used. See JOHN v. STATE; IGU v. STATE (Supra). On the other hand to stretch the arguments of the Appellant that the evidence is not admissible as it (assuming the PW6 did not participate in the analysis). A combined reading of Sections 68, 39(d), 42 of the Evidence Act allows this evidence and cures any defect therein if any.
In the book ‘Introduction to Scientific Crime Detection by H. J Walls on forensic science has this to say:
“…the British expert used to spend much of its time in the witness box than his counterparts elsewhere did. He used to have to appear in person, sometimes at least twice in every contested case, where in most European countries agreed expert evidence can be accepted by the courts without the expert appearing in person and in the USA the defence frequently stipulates that it accepts the experts report and does not insist that he be called.”
On the relevancy of the report, at Vol. 2 page 196 is a list of Test/DNA Unit, 39 Scientists who worked on it in London. At page 197 of Vol. 2 is an email saying that the result pack will be sent to London for a report to be issued the letter from the unit at Wetherby – U.K Police. Page 205 – 206 of Vol. 1 is a report on the shirt belonging to Appellant and 2nd paragraph shows that it matches Shonubi’s (Appellant’s) blood with each showing that each analysis matched gave the same result. Additional analysis of victims finger nails and the belt – to determine if any of the deceased’s DNA may be present in 9 samples of the suspects sent was also done.
It is thus beyond doubt not only a Police Officer but also an expert in Forensic Science.
PW6 was a trained forensic officer he testified that preliminary test was done – he participated in this, he classified it and the result matched only Kunle Shonubi – i.e. Double transfer – two objects in the finger nails clipping of the deceased and DNA of the defendant. He testified on the stain on the shirt which is the blood stain matched that of the deceased.
The procedure he explained that he did some stages here and sent the exhibits to London for the other part and the result was sent to the police Forensic Services in UK who interpreted it, compared it with what was done in Nigeria and found that the result came back with Kunle Shonubi’s name out of Nine Suspects, the result was consistent.
His evidence is thus at page 231 Vol. 1
“We subject the totality of the exhibit to preliminary examination, carried out scientific tests. Thus we do not have equipment to do”
I packaged them and took them to London to do.
The CCTV, DNA Analysis, the result of London was sent to me with the profile.
He stated further – I now combined DNA of the deceased on the checkered shirt. The finger nail clip was found on the finger nail person of the deceased. This gave us what we know forensic science as double transfer specific finger nail of decease. It comes from violent trouble; it must have resulted from the assault on the deceased. It is in my report, struggle that must allocate the death of the deceased.”
Forensic report of PW6, Exhibit E was tendered. He stated that of the 3 questions in forensic analysis, 2 were answered in Nigeria while the final question was sent to London. He said there was a stain on the shirt of the defendant, it was subjected to 3 stages of test he said;
i. Was the stain blood?
ii. Does this blood belong to a human being?
iii. Does the human blood belong to the deceased?
And it was this question 1 & 2 that were answered in Nigeria and that the answer sent confirmed that the stain on the shirt was blood which matched that of the deceased. He said Exhibit E was based on Exhibit E7 – partly Exhibit D is based on Exhibit E. This is found on page 233-234 of vol. 1.
Therefore, I agree with the Respondent that the PW6 was a member of the police forensic investigation, his evidence at cross examination was not shaken.
Another contention of the Appellant was that they did not have time to cross examine the PW6 as they were taken by surprise. I find that this is not exactly correct as evidence in chief was on 8/4/2009 and the court adjourned for cross examination which was adjourned to 6/5/2006 and further to 8/05/2009. He had ample time to apply for a copy and study.
In fact his cross examination was very lengthy on 8/5/2006. He therefore cannot complain that he did not have time to study the document.
See SHARON PROPERTY LTD v. PAUL B. NIG PLC [2014] LPELR-23728(CA); AKINDURO v. ALAYA (2007) ALL FWLR (Pt. 381) 1653 AT 1672-1673, Tobi, JSC said
“I have said in the past and I will not say it again that the duty of the court is to create the environment for fair hearing and it is the decision of a party to take advantage of the environment created. A party cannot blame the court if he fails to take advantage of the environment created by the court.”
From the record as it relates to the cross examination of the PW6 reiterated he did 2 out of the test which proved that Kunle was involved and he stated he was in contact with London Police and gave directions on the Low DNA and Low copy DNA.
BILL CONSTRUCTION CO. LTD v. IM JSC held that
“Where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilized same, he cannot later be heard to complain that his right to fair hearing has been breached.”
The forensic report in my view was rightly admitted by the trial court. Another contention of Appellant is how the exhibits were collected and preserved? I have reproduced part of the evidence of PW5 and PW6 i.e. APC Onyejekwe and Agbo who testified on the exhibits – Onyejekwe heads the Shell Police Security and was at the scene of the crime together with officers from State CID Panti; they combed the area and the rooms, brought photographers and shared gloves to be worn on both hands while picking up exhibits that were packed and sealed. He took the Appellant’s clothes, turned them and later collected them sealed it and since he had facilities for keeping such, he kept it till he handed it over to Panti Commissioner of Police who handed it to DCP Police Alagbon, who together with 2 letters and sealed exhibits handed them to him. He took samples from the nine suspects for the DNA analysis which he said was done professionally. His evidence was not shaken. All the steps were stated procedurally in such a way that the exhibits could not have contacted the body of the deceased again; they were kept separately from the evidence of Prof. Obafunwa, Agbo and Onyejekwe AC. There is nothing in the evidence suggesting breach of procedure.

On the third aspect whether the issue has been proved, from exhibits D, D1 & E, the Appellant had more than close contact with the deceased. PW1-Prof. Obafunwa of the Department of Pathology and Forensic Medicine of the Lagos State University Teaching Hospital, wrote the post-mortem report. His evidence at page 223 is to the effect that the deceased was strangled and that a broad width item was used; that the victim struggled; that was the reason for the bruises and that he advised that the stained belt be taken for DNA analysis so that when this is put side by side with PW6 report that the fingernails clippings had the DNA of the Appellant, thereby making it reasonable to conclude that during the violent struggle the deceased picked up some tissue of the Appellant which remained on her at death. After all, the DNA of 9 suspects was analysed and sent and it only that of the Appellant that is a match. Again, the stain on the Appellant’s shirt also matched the DNA of the Appellant. The totality of these reports indicts the Appellant beyond reasonable doubt.

There are two volumes of records of proceedings in this appeal. Vol.1 contains the proceedings of the trial court while Vol. II contains the exhibits tendered at the lower court – mostly Exhibit D.

In examining the circumstantial evidence of the prosecutions, particularly the evidence of PW11, PW5 named as DW5 ACP Uche Onyekwere, it is apparent the spy police deployed to Shell on the investigation found that the Appellant was sighted at 9-9.30am in front of the flat 303, a fact which he initially denied but when confronted with this, he admitted that he was absent from his duty post for about 30mins but that he had gone to have an ‘unusual’ bath at flat 504 (without soap and sponge and towel which were downstairs). There facts showing that he deputizes for the manager and had access to the CCTV which was in the mangers room and that he left at 10a.m. to repair his car when he was to finish his shift. He said he fixed a bulb at the entrance of 303 without a job card. He had qualifications in Electronic Electrical training, he left when he was in charge of lights generators, lifts CCTV. Suddenly for about 4 hours all these pierced side by side when his collapsed alibi like a pack of cards point to him and no one else at that time.

However, I must state that the court is bound by the record of appeal. See ONWUKA v. ONONUJU [2009] 11 NWLR (Pt. 1151) 174. What exactly is the evidence of proof in a murder case?

Before I dive fully into the matter I shall reproduce the charge.

“Statement of Offence
Murder contrary to Section 319 (1) of Criminal Code Cap 17 Vol. 2 Laws of Lagos State 2003.

Particulars of Offence
Kunle Shonubi (M) on or about 4th day of January, 2007 at flat 303, 5 Temple Road, Ikoyi in the Lagos Judicial Division Murdered Annemieke Steen.”

The defendant pleaded not guilty to the one count on the information on 23rd February, 2009 prosecution called 13 witnesses and tendered 18 Exhibits. Accused testified and called three other witnesses and tendered one Exhibit E & O.

The Police evidence on the gathering of scientific materials for the analysis is from PW4, PW5 and PW6. PW4 is Prof Obafunwa who wrote an autopsy report and stated that cause of death is strangulation with bruises seen indicating violent struggle and use of a broad width band used on the neck.

PW5-ACP Onyejekwe – a Spy Police stated he had gloves and professionally gathered evidence at the scene, stated the room was scattered, received cloths, Appellant word, Red coloured T. Shirt and under cloth, packed same professionally took custody of belt, phones CCTV parcel Exhibits were handled by him and were properly sealed.

The Appellant has cited a number of cases and appears to be confusing a medical report for a Scientific Forensic Investigation Report. The medical report is on the cause of death while Forensic evidence is the scientific proof of the blood, liquid, finger print on substances such as pieces of items found at the scene or on clothings with blood or samples of suspects. This is purely scientific see KASA v. STATE (supra) where the Supreme Court held that whether any evidence against a defendant in a homicide trial is a blood stain such evidence would secure his conviction. It must be forensic evidence which will show that such blood is human blood and further that such blood falls into the same blood group with the deceased.

PW6 testified that he took nail clippings of deceased and a white blood stained belt found at the scene together with the clothing of the Appellant which had blood stain, he first did preliminary investigation and sent it to London Forensic Scientist in this case police scientist who received it as seen in Exhibit D, documented and sent result to him.

Further the schedule of the Appellant was such that an absence of over 30mins would be noticed and crucial to the management of the estate if something should go wrong I have reproduced substantial evidence on this, he left at 10 – almost after the incident and his alibi was investigated and found not to be correct therefore the implied inference is that he fled the scene after the commission of the alleged crime.

The alibi fell like a pack of cards. Even the mechanic who testified denied anybody looking for him he also put the time at 8:45 is arrival on the premises contrary to Appellants time of 10am. The difference is clear it’s either the mechanic is not telling the truth. It is trite that where there are conflicts in material evidence of a witness it ought not to be believed. See STATE v. AZEEZ (2008) 14 NWLR (Pt. 1108) 439 @ 465 PARAS D-F; ADIO v. STATE (1979) F12 NSCC 51; NWOSU v. STATE (1986) NWLR (Pt. 35) 348; AGBONIFO v. AINERE OBA & ANR (1988) NWLR (Pt. 70) 325; MODUPE v. STATE (1988) NWLR (Pt. 87) 130.
“It is settled that conflicting presumptions neutralize each other and leave the case at large to be determined solely on the evidence given.”

The court rightly discountenanced the evidence of alibi movement from Ikoyi to Oyingbo to repair the Appellant’s car which was not shown to the investigator and disappeared without force. Evidence of PW4 – the pathologist in forensic medicine testified that upon visit to the scene and from the result of the autopsy, that there is a scar on the muscle of the neck and that the victim died due to strangulation with an item broadly wrapped round the neck, a process where the victim would struggle the burses could occur, this tallies with the findings of the forensic report that the victim struggled with the object the contact there was same sample under their finger nails which necessitated the analysis carried out on it.

In this report the Exhibit E & D cannot be faulted as to how stain and DNA contact of the Appellant got on the finger nails of the Appellant and not any of the other suspects. On this, I resolve issues 2, 5, & 8 in favour of the Respondent.

ISSUE 3

Whether there is evidence of previous character evidence of a suspected theft of N1.5M against the Appellant thereby held the Appellant of the crime. In LAWAN v. YAMA (2004) where it is necessary to prove a connection of a criminal offence the same may be proved by mere production of a certificate of conviction containing the substance and effect of the connection only purported to be signed by the registrar or other officers of the court in whose custody the documents are.
Section 82 Evidence Act.
“1. Except as provided in this section, evidence of the fact that a defendant is of bad character is inadmissible in criminal proceedings.
2. The fact that a defendant is of bad character is admissible (a) whether bad character of the defendant is a fact in issue or (b) when the defendant has given evidence of his character.”

In this instant the evidence was from PW12 Ekuru to backup the allegation that CCTV Machine had not worked for some time and no report by the appellant whose duty it was in explaining that when the appellant is on duty that the CCTV does not usually work (when the defendant was on duty around this time) and that there is a usual commission of an offence such as the stealing of N1.5M in 2007. Apart from the review of evidence at page 297 on why the death of the deceased could not be filmed or seen on CCTV, the judge found thus;

“According to Mr. Ekure the CCTV machine does not usually wok while the Defendant is on duty and there is usually omission of offence like tha issue of N1.5 Million in the year 2007, I adopt the submission of the prosecution.”

Moreover, it is not an evidence of previous conviction but the accused has insisted that he does not know how to operate the CCTV and this evidence showed that there was a possibility that accused had tampered with the CCTV before and it was a possibility that he could have done same on this occasion but that’s where it ends. I resolve it against the Appellant.

ISSUE 4

Whether there is a material conflict in the evidence of PW10 and PW11 that manifestly affected the judgement. This issue is pulled from issues 9 & 10. The PW11 (MRS. YAP AH FONG) made written statement and gave oral testimony in court. In her statement Exhibit K she described the dressing of the Appellant and said immediately she is not certain that it was the Appellant she saw until Madam Elmna (Michael’s wife) told her that she also saw the Appellant downstairs and described the same dressing she saw then she was convinced he was the same person, it was a distance of two yards; it is directly opposite my own flat- at page 12 line 11-29 of Vol. 1 while at trial she said she saw the Appellant on the corridor of the same flat “I think it was kunle, I saw him face to face that it was Kunle.” This was merely a witness stating the after confirmation that who she saw was correct.

The PW10 had described the apartment of PW11 and the flat 303 as almost opposite each other. It is therefore a proximity wherein she described the clothing he wore accurately and time of observation it was the same clothing found on him from the evidence of ACP Onyejekwe spy police is instructive at page 67 of vol 1 and 67. It is not contradictory as the point in the two statement are the same but said in another way she greeted him and he did not answer but when Mrs. Elna told her, her seemingly confusion cleared. I disagree that there are material contradiction as the crux of the matter is whether Kunle Shonubi was ever in that vicinity at a time proximate to the time of murder and both PW11 and MRS Elna points out that indeed he was there initially denied same but later admitted only getting to the entrance gate to change the bulb – this was the same as a sighting at the corridor of 303 at a time proximate to the time of the commission of the crime. This issue is neither here nor there in that the appellant admitted seeing PW11 and said he greeted her, he also finally admitted changing bulb in front of flat 303.

This evidence is not conflicting or inconsistent as to cast a doubt upon the guilt of the accused. The circumstantial evidence added up and coupled with the forensic result points to the Appellant and no other in this case, Appellant has not disputed that he was not present and most importantly he testified at the trial that he could not say where he was at that time.

The mechanic rather contradicted the issue which showed him up as trying to pull wool over the eyes of the court, this to my mind knocks off the alibi of the accused that he could not have been present at the time of the crime because of his presence at another place. See ADEPETU v. STATE (1998) 9 NWLR (Pt. 563) 185; IGHO v. THE STATE [1978] 3 S.C. 87; LORI & ANR v. STATE (1980) 8-11 SC 8. The court held that circumstantial evidence must be cogent, complete and unequivocally but compelling and lead to the justifiable conclusion that the accused and no one else is the murder. It must leave no ground for raising doubt.
In UWE IDIGHI ESAI & ORS v. THE STATE [1976] 11 SC 39; ONAH v. STATE [1985] 3 NWLR (PT. 12) 236; ARICHE v. STATE [1993] 6 NWLR (Pt. 302) 752 where the Court held thus
“It is settled that in a charge of murder the fact of death is provable by circumstantial evidence where neither the body of the victim or any trace of it for that matter has been found, even if the person suspected has made no confession of any participation in committing the crime…”
The trial judge scrutinized the evidence fully and seriously commended the totality of the evidence proffered by all parties before ascribing value to each and came to a just conclusion that the Appellant was liable for the murder.

I resolve the issue 4 against the Appellant

On the whole, I resolved the four issues against the Appellant, the appeal fails. This appeal is hereby dismissed. I uphold the judgment of Oluwayemi, J. of High Court of Lagos State delivered on 3rd December, 2010.

SIDI DAUDA BAGE, J.C.A.: My learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, has graciously accorded me the privilege of having a copy of the judgment in draft, prepared and just delivered by her. Having read, before now, the briefs of argument of the learned counsel to the respective parties vis-‘a-vis the record of appeal, as a whole, I cannot but concur with the reasoning and conclusion ably reached in the said judgment, to the effect that the court held that circumstantial evidence must be cogent, complete and unequivocally but compelling and lead to the justifiable conclusion that the accused and no one else is the murder.

Most instructively, in the case of UWE IDIGHI ESAI & ORS. v. THE STATE (1976) 11 SC 39; ONAH v. STATE (1985) 3 NWLR (Pt. 12) 236; ARICHE v. STATE (1993) 6 NWLR (Pt. 302) 752 where the Court held thus:
“It is settled that in a charge of murder the fact of death is provable by circumstantial evidence where neither the body of the victim or any trace of it for that matter has been found, even if the person suspected has made no confession of any participation in committing the crime…

In my considered view, the trial judge scrutinize the evidence fully and seriously commended the totality of the evidence proffered by all parties before ascribing value to each and came to a just conclusion that the Appellant was liable for the murder.

On the whole, I too join my learned brother in holding that issue 4 is resolved against the Appellant. Hence, the four issues is resolved against the Appellant, the instant appeal fails, the judgment of Oluwayemi, J. of the High Court of Lagos State delivered on 3rd December, 2010 is upheld.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was privileged to read in draft the thorough judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., with which I agree and adopt as my judgment with these comments, by way of emphasis.

A few words on forensic evidence. PW6 gave evidence on it. Exhibit E bearing the forensic report was admitted through the witness. Section 68 of the Evidence Act, 2011, dealing inter alia with the evidence of an expert in science inclusive of identity of finger impression and DNA analysis of blood of a human being accommodates the evidence of the PW6 and the forensic reports in Exhibits D and E. The forensic report from London in connection with the case is also accommodated by Section 149 of the Evidence Act which provides –

“When any document is produced before any court purporting to be a document which by the law in force for the time being in any country other than Nigeria would be admissible in proof of any particular in any court of justice in that country, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the court shall presume –
(a) that such seal, stamp or signature, is genuine; and

(b) that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in the country where the document is produced.” (My emphasis).

The evidence of the PW6 and the forensic reports corroborated by the evidence for the respondent dislodging the alibi of the appellant are of probative value and were not shown to be prejudicial to the appellant which fixed the appellant with the commission of the offence charged.
For in the apt English case of R. v. Buckley (1999) 13 JP 561 cited by the learned writer, S.T. Hon, SAN, in S.T. Hon’s Law of Evidence in Nigeria (vol. 1) page 570, it was held per Rose, L.J., inter alia that fingerprint evidence, like any other evidence, is admissible as a matter of law if it tends to prove the guilt of the defendant.

In addition, the evidence of the PW6 to the effect that the DNA analysis of the blood stain found on the checkered shirt of the appellant matched that of the appellant was positive identification of the appellant’s culpability as the person that caused the death of the deceased.

It is on account of these few words and the elaborate discussion contained in the Judgment of my learned brother, Obaseki-Adejumo, J.C.A., that I too find no substance in the appeal and hereby dismiss it and affirm the conviction and sentence of the appellant by the court below.

Appearances

No appearance for AppellantFor Appellant

AND

Ade Ipaye (A-G Lagos State) with Akinsete O. (Mrs.) (SCS)For Respondent