ADEKU AYODELE v. THE STATE
(2018)LCN/11435(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2018
CA/EK/48C/2016
RATIO
PROVING DEATH BEYOND REASONABLE DOUBT
It is submitted that where the issue of whether a person died or not is in issue, it is incumbent on the prosecution to prove the death of the deceased beyond reasonable doubt per AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
ADEKU AYODELE Appellant(s)
AND
THE STATE Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment)
This appeal is from the decision of the Ekiti State High Court, contained in the Judgment of Honourable Justice J. O. Adeyeye delivered on the 27th day of November, 2014 in Suit No. HAD/6C/2010.
The Appellant was jointly charge with two other accused persons for the offences of conspiracy and murder. The prosecution called two witnesses, PW1 and PW2, to prove the guilt of the three accused persons and tendered exhibits. The three accused persons testified and called three other witnesses, and tendered exhibits. The Appellant testified as DW3.
At the end of the trial all the three accused persons were discharged and acquitted of the offence of conspiracy on the ground that the prosecution did not have proper evidence in support of the charge of conspiracy. The learned trial Judge, however, held that the prosecution had proved the offence of murder against all the accused persons, convicted and sentenced them to death by hanging.
?It is against that judgment that the appellant has, ex debited justitiae, brought this appeal upon an Amended Notice of Appeal, filed by the leave of this Court on the 20th day of March, 2017, containing three (3) grounds of appeal namely:-
GROUNDS
1. The decision of the lower Court is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.
2. The Lower Court erred when it convicted the Appellant as charged whereas the totality of evidence adduced by the prosecution did not establish all the essential elements or ingredients of the offences charged.
PARTICULARS OF ERROR
a. The evidence adduced by the prosecution did not establish the three essential ingredients of the offence of murder.
b. That the evidence of PW1 and Exhibits ?B? and ?E? relied upon by the learned trial Judge as proof that the deceased died are not reliable and of no evidential value.
c. That Exhibit ?E? which the learned trial Judge relied upon as a proof that the act of the Appellant caused the death of the deceased is not admissible in law and has no evidential value.
3. The learned trial Judge erred in law when it convicted the Appellant as charged whereas the evidence adduced by the prosecution did not prove beyond reasonable doubt, that the Appellant committed the offence of murder he was convicted of.
PARTICULARS OF ERROR
a. It is the duty of the prosecution to proof the guilt of an accuse person beyond reasonable doubt.
b. That the evidence of PW1 is full of exaggeration and contradictions and therefore lacks probative value.
c. The prosecution was not able to proof all the essential ingredients of the offence of murder against the Appellant.
d. The evidence of PW2 did not prove that the Appellant was armed with dangerous weapon and killed the deceased.
e. Exhibit ?B? relied upon to convict the Appellant has no evidential value.
f. The evidence of Prosecution witnesses did not prove that the Appellant committed the offence for which he was convicted of.
g. The learned trial Judge misapplied the principle of law laid down in cases of EDOHO VS. THE STATE (2010) ALL F.W.L.R. (PT. 530) 1262 and AUDU VS THE STATE (2003) F.W.L.R. (PT. 153) 325 to the detriment of the Appellant.
h. The learned trial Judge relied upon the inconsistences in the evidence of PW1 and PW2 and Exhibit ?B? as proof that the Appellant is guilty of the offence of murder.
i. The learned trial Judge relied on the inadmissible and unreliable Exhibit ?E? as a proof that it was the fight between the Appellant and other co-accused persons that led to the death of the deceased.
j. The learned trial Judge resolved all the benefits of doubt in the prosecution case in favour of the prosecution instead of the Appellant.
k. There is no evidence on record to prove that the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
In compliance with the Rules of the Court, parties have filed and exchanged brief of argument. In the Appellant?s Brief, settled by Adebowale A. Sobanjo Esq., a sole issue was formulated for determination, viz:
Whether from the totality of the evidence adduced at the trial, the prosecution proved the charge of murder preferred against the Appellant beyond reasonable doubt to warrant the learned trial Judge convicting him.”
In the Respondent?s Brief, settled by Gbemiga Adaramola Esq., the learned Director of Public Prosecutions (DPP), Ministry of Justice, Ekiti State, a sole issue was also identified as calling for determination in this appeal, namely:
?Whether the lower Court was not right in deciding that upon the totality of evidence adduced by the prosecution, the case of murder against the Appellant was proved beyond reasonable doubt.”
The two issues are one and the same, they were only crafted in different styles. I will, however, tailor my judgment preferring the issue as identified by the learned counsel for the Appellant.
It is submitted, for the Appellant, that in a criminal case, it is the legal duty of the prosecution to prove the case against an accused person beyond reasonable doubt. Reliance is placed on MBANG V. STATE (2013) ALL FWLR (PT. 674) 102; NJOKWU V. STATE (2016) ALL FWLR (PT. 842) 1688.
It is submitted that from the totality of the evidence adduced and the exhibits tendered and relied upon at the trial Court, the prosecution failed woefully to prove the case of murder against the Appellant beyond reasonable doubt. It is submitted that for the prosecution to succeed in a case of murder against an accused person under Section 319 of the Criminal Code, Cap 30 Vol. II, Law of Ondo State, 1978 as applicable in Ekiti State, certain ingredients must be proved beyond reasonable doubt, namely:
1. That there was killing;
2. That the killing was unlawful as prohibited by Section 316 of the Criminal Code;
3. That it was the act or omission of the accused person that caused the death of the deceased; and
4. That the accused intended the death of the deceased.
It is also submitted that all the ingredients listed above, to the exclusion of none, must be proved beyond reasonable doubt, citing AKINFE V. STATE [1988] 3 NWLR (PT. 85) 729; OKORO V. STATE [1988] 5 NWLR (PT. 94) 255; AKPAN V. STATE [1994] 9 NWLR (PT.368) 347; ABOGEDE V. THE STATE (1996) 4 SCNJ 223; AHMED V. STATE (2001) FWLR (34) 438; and OJO V. FEDERAL REPUBLIC OF NIGERIA (2009) ALL FWLR (PT. 494) 1461.
It is the submission of the learned counsel for the Appellant that throughout the trial, the prosecution was unable to prove any of the ingredients of the offence of murder against the Appellant. He submits further that an accused person is presumed innocent until the contrary is proved and he is not required, in law, to prove his innocent since the burden of proving his guilt rests on the prosecution. It is submitted that notwithstanding of the paucity of evidence on record, the learned trial Judge held that the prosecution had proved all the ingredients of the offence of murder against the Appellant, convicting him based on the evidence of PW1 and Exhibit B, at pages 158 to 159 of the record of appeal. It is submitted that the evidence of PW1 on pages 53-62 of the record and Exhibit is are not cogent enough to prove beyond reasonable doubt that the alleged deceased, Alausa Yusuf died. It is submitted that apart from the evidence of PW1 that he took Alausa Yusuf to the Hospital where he was confirmed dead and was advised to take him to the Mortuary, there is no other admissible evidence that Alausa Yusuf actually died. The prosecution did not, through PW1, give the name of the doctor who confirmed Alausa dead. Azeen with who the PW1 said he took the corpse of Yususf Alausa to the Mortuary was not called as a witness. The negatives and alleged deceased pictures taken at the Mortuary by the Police were simply tendered for identification purposes and were marked as 1DI -1D III and ID IV ? ID VI respectively and not as exhibits. It is submitted that to prove that a person died is not a matter of option as stated by the learned trial Judge on page 159 of the record, but a decision that must be based on cogent evidence preferred by the prosecution witnesses. It is submitted that Exhibit B, the content of which the learned trial Judge quoted at page 160 of the record, did not show that the medical report has anything to do with Yususf Alausa. There is no evidence on record that the person who purportedly identified the supposed body of Yusuf Alausa to the Doctor who purportedly performed the post-mortem examination on the body knew him before his alleged death.
It is submitted that where the issue of whether a person died or not is in issue, it is incumbent on the prosecution to prove the death of the deceased beyond reasonable doubt, citing IDEMUDIA V. STATE [1999] 7 NWLR (PT. 610) 202 and DAMINA V. STATE [1995] 8 NWLR (PT. 415) 513 @ 537, particularly paragraphs B – D on the effect of failure to identify deceased?s body in murder trial. It is submitted that there is nothing in Exhibit ?B? that indicated that the autopsy was performed on Yusuf Alausa just as there is no evidence before the learned trial Judge that the person whose name was written in Exhibit B knew Yusuf Alausa when he was alive. It is the submission of the learned counsel that failure to call one Okegbemi Elijah who purportedly identified the alleged corpse of Yusuf Alausa to the Medical Doctor for the purpose of post-mortem cast doubt on the autopsy purportedly conducted and on the fact that the corpse was identified at all. Reliance is placed on ENEWOH V. THE STATE [1990] 3 N.S.C.C.I @ 5, lines 31-38. It is contended that, in this case, there is no evidence of the where about of Okegbemi Elijah. His name is only stated in Exhibit B which itself is in doubt.
It is stated that, unlike ENEWOH (Supra), the Medical Doctor who purportedly performed the autopsy was not called and Exhibit B was also not signed by him. It is submitted that instead of the learned trial Judge to hold that the prosecution failed to prove that the alleged deceased had died; his Lordship shifted the burden of proving that Yusuf Alausa did not die to the Appellant. Reference is made to page 159, lines 11 to 16 of the record of appeal. It is submitted that there is no admissible evidence on record to support the evidence of PW1 that the body of the alleged deceased was deposited at the Mortuary as claimed by him and the learned trial Judge should have resolve the doubt created about the death of Yusuf Alausa in favour of the Appellant.
As to the cause of death, it is submitted that it is the duty of the prosecution to prove the cause of death beyond reasonable doubt where death does not occur on the spot, citing WILLIAMS V. THE STATE (1992) 10 SCNJ 74. It is also submitted that the prosecution is under a duty to prove beyond reasonable doubt that it was the act of the Appellant that caused the death.
Reference is made to PRINCEWILL V. THE STATE (1994) 7-8 SCNJ (PT. II) 226; and LIMAN V. THE STATE (1976) 7 SC. 6 and evidence of PW1 at pages 58 to 63 of the record of appeal. It is submitted that from the totality of the evidence adduced by both PW1 and PW2, there is no direct or indirect evidence that the Appellant caused the death of the alleged deceased. It is contended that there is no evidence of a registered medical practitioner establishing the cause of death of the person alleged to have been murdered by the Appellant as found and held by the learned trial Judge, as held by the Supreme Court in STATE V. OKPALA (2012) ALL FWLR (PT. 617) 670. Attention is drawn to page 160, paragraph 3 of the record where the learned trial Judge reproduced the contents of the medical report (Exhibit B) and reached a conclusion on the cause of death at the last paragraph of page 160 to lines 1-9 of page 161. It is contended that the learned trial Judge relied heavily on Exhibit B in arriving at the cause of death of the alleged deceased when Exhibit B was not tendered by its maker and on which the signature of the doctor who purportedly performed the autopsy on the body of the alleged decease did not appear.
It is submitted that Exhibit B was admitted in evidence contrary to the decision of this Court in AUDU V. STATE (2003) FWLR (PT. 153) 325 @ 356, and varied the evidence on record to justify the admissibility of the exhibit notwithstanding his having delivered a ruling during the trial on the objection of the Appellant?s counsel to the admissibility of the exhibit. The learned trial Judge in his judgment held that counsel for the Appellant did not object to the admissibility of Exhibit B when tendered in evidence. See Page 161 of the record. Reference is made to page 83, lines 8- 19 and lines 1 -7 of page 84 of the record of appeal. It is submitted that the learned trial Judge was wrong to have accorded any probative value to Exhibit B having not been tendered through the maker and when there was objection to its admissibility. It is submitted that the learned trial Judge took it upon himself to interpret the con of Exhibit B and made a conclusion as to the cause of death, contrary to the decision of the Supreme Court in DAMINA V. STATE [1995] 8 NWLR (PT. 415) 513 @ 533; and OFORLETE V. STATE (2000) ALL FWLR (PT. 12) 2081 @ 2105.
It is submitted that there is no evidence before the lower Court that established that the medical terms contained in Exhibit B indicates that the alleged deceased died as a result of loss of blood as found by the learned trial Judge. It is submitted further that in the absence of any evidence that the Appellant held any dangerous weapon or injured the alleged decease on the day of the fracas, the learned trial Judge should have believed the evidence of the Appellant as contained at page 116 -118 of the record, which evidence was corroborated by the evidence given by DW5 at page 125 of the record. This Court is urged to hold that the conclusion of the learned trial Judge on the cause of death of the alleged decease is wrong and that the cause of death was not proved beyond reasonable doubt. It is submitted that the prosecution also failed to prove beyond reasonable doubt that the act of the Appellant was done with intention to cause death or grievous bodily harm.
It is submitted that the Appellant having been jointly charged along with two other accused persons at the lower Court, it is the legal responsibility of the prosecution to establish common intention for joint criminal act and the individuality of liability of each accused person. The Appellant, it is submitted, was found guilty and convicted of murder by the learned trial Judge without evidence specifically establishing his culpability as held by the Supreme Court in STATE V. AZEEZ (2008) ALL FWLR (PT.424) 1423 @ 1461 ? 1462. It is contended that there is no evidence before the lower Court to show that all the three accused persons had that common intention to cause the death of the alleged deceased or to injure him, and, therefore, the finding by the learned trial Judge at lines 2 ? 7 of page 161 of the record is not maintainable in law.
The Court is finally urged to discharged and acquit the Appellant, the prosecution having failed to prove beyond reasonable doubt the charge of murder against the Appellant.
For the Respondent, the learned Director of Public Prosecutions (DPP), Gbemiga Adaramola Esq., submits that there are three ingredients the prosecution has to prove contemporaneously namely:
1. That the deceased had died;
2. That the death of the deceased was caused by the accused; and
3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
In support of this submission, the learned DPP cites NWAEZE V. THE STATE [1996] 2 NWLR (PT. 428) 375; UGURU V. STATE [1992] 2 NWLR (PT. 22) 164; and ADEKUNLE V. STATE (2006) ALL FWLR (PT. 332) 1452 (The underlining by me because the citation does not seem to be correct).
It is submitted that the argument of the Appellant that there is no cogent or admissible evidence conclusively establishing the death of Yususf Alausa beyond reasonable doubt is unsustainable in law as the death has been conclusively proved and as it is in evidence before this Court by the PW1 and the PW2 that they saw the corpse of the deceased in the Mortuary. It is submitted that it is trite that the guilt of an accused person can be proved by the confessional statement of the accused person; circumstantial evidence; and evidence of eye-witness of the commission of the alleged crime, citing in support SUNDAY V. STATE (2013) LPELR ? 20196. Reliance is placed on the evidence of PW1 at page 60 of the record of appeal. He also relies on the evidence of PW2 that he saw the corpse at the Mortuary of the Ekiti State University Teaching Hospital together with the team of Police Investigators, and that the evidence of PW2 as to the kind of injury he saw on the deceased was not impeached during the cross-explanation by the Appellant. It is submitted that it is not a legal requirement to mention the name of the Doctor who confirmed a person dead. What the law says, according to the learned DPP for the Respondent, is that the death of the deceased must be established and this has been done in the instant case. It is also submitted that it is not mandatory for a Medical Officer who performed an autopsy on a deceased to be present in Court in order to give evidence during trial, the production of a certificate signed by the medical officer is sufficient evidence of the facts, citing EDOHO V. STATE (2010) VOL. 40 WRN 1 @ 6; and ISIEKWE V. STATE [1999] 6 NWLR (PT. 617) 43 @ 51. It is submitted that apart from the medical report, Exhibit B which vividly painted the cause of death, the visual identification of the PW1 and PW2 of the various degrees of injuries inflicted on the deceased which are contained in the record were never impeached by the Appellant during cross-examination. Relying on ADEYEMI V. STATE [1991] 1 NWLR (PT. 170) 679 @ 694, it is submitted that It is a settled principle of law that where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence.
With regard to the second and third ingredients of the offence of murder, the learned counsel for the Respondent relies on the Appellant?s extra-Judicial statement to the Police, ID VIII which he quotes in extenso in his brief of argument. It is submitted that all these are circumstantial evidence that conclusively established that the death of the deceased was caused by the Appellant. It is submitted that the injury found on the deceased could not have been self-inflected injury and the analysed evidence point to no other direction but that it was the Appellant and his co-accused that killed the deceased. He cites OZAKI V. STATE [1990] 6 NWLR (PT.124) 92; CHUKWU V. STATE (2007) ALL FWLR (PT. 389) 1224; and OGIDI V. STATE (2005) ALL FWLR (PT.251) 202. It is submitted that where direct testimony of an eye witness is not available, the Court is permitted by law to infer from the facts to prove the existence of other facts that may be logically inferred. Reliance is placed on IHUEBEKA V. STATE (2000) FWLR (PT. 11) 1827 @ 1847. It is submitted that in CHUKWU V. STATE (Supra) at 1229 ? 1230, it was held that circumstantial evidence must be indisputable, cogent, positive, compelling and conclusively point to no other person but the accused as the culprit in the commission of the offence charged, citing AHMED V. STATE [2001] 18 NWLR (PT. 746) 622 @ 628. It is submitted that from the evidence adduced, the Appellant was one of those seen fought the deceased and inflicted that injury which prompted the PW1 to rush him to the hospital where he was confirmed dead. He relies on KALU V. STATE [1993] 6 NWLR (PT. 300) 385 @ 397 -398.
With regard to Exhibit G, it is submitted that the function of evaluation of evidence is essentially that of a trial Judge and where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appeal Court to interfere, and to substitute its own views for the view of the trial Court, citing the following authorities: OKOROJI V. STATE (2001) FWLR (PT. 77) 871; IGAGO V. STATE (2001) 2 ACLR 104; RASHEED V. STATE (2014) 16 WRN 127; and BOLANLE V. STATE (2010) VOL. 4 WRN 26 @ 34.
In this case, the prosecution?s case has left many questions unanswered. I start with the evidence of the alleged eye witness, Waheed Bello, PW1 who arrived at the scene of crime and saw the boys beating Yusuf Alausa, the deceased. Some of the boys were carrying machetes while others were carrying sticks. When the boys discovered that Yusuf had fallen down and was unconscious, they abandoned him and ran away. With this scenario, no boy was specifically identified as carrying either the machetes or the sticks and none of them was particularly identified to have hit or slapped Yusuf with any of the weapons mentioned by the PW1.
?Another aspect of the evidence of this eye witness is that he ?called motorcyclist and carried Yusuf to State Hospital, Ado-Ekiti, but he died before the Doctor attended to him?. In another version, ?the Doctor confirmed him dead and advised that we take the body to the Mortuary?. There was no evidence that Yusuf died before he was carried on a motorcycle or at what point in time he actually died. This constituted an intervening period. The name of the Doctor who confirmed Yusuf dead is shrouded in mystery and he was not called as a witness.
Then the Medical Report Exhibit B. Exhibit B states that one Okegbemi Elijah identify the corpse to the Doctor who performed the autopsy. No explanation is given as to the relationship between the Okegbemi Elijah and Yusuf Alausa. He was not called as a witness. The same thing acted out for one ?Azeez? who PW1 alleged accompanied him to deposit the corpse of Yusuf at the morgue. He was not called as a witness.
The Doctor who allegedly carried out the autopsy was not the person who signed the Medical Report. The Doctor who purportedly performed the autopsy and the person who signed the Report (Exhibit B) for him were not called as witnesses.
?Objection was taken to the admissibility of Exhibit B on the ground that it was signed by a person other than the Doctor who was alleged to have performed the post mortem examination. It was admitted on the ground of relevancy and on the ground that the important thing was the weight to be attached to it. The learned trial Judge in the course of writing his judgment stated that learned counsel for the Appellant did not object to its admissibility.
All the issues raised here above call for explanation by the prosecution but none was forthcoming, yet, the learned trial Judge found the Appellant guilty of the offence of murder.
In the light of the foregoing, I hold that there is not cogent evidence upon which to hold the Appellant liable for the death of Yusuf Alausa, if at all Yusuf Alausa truly and actually died.
The verdict of guilty entered by the learned trial Judge against the Appellant has no basis.
This appeal succeeds and it is hereby allowed.
I do hereby set aside the decision of the lower Court and return a verdict of not guilty for the Appellant.
The Appellant, ADEKU AYODELE, is hereby acquitted and discharged.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances
Adeboye A. Sobanjo, Esq.For Appellant
AND
Gbemiga Adaramola, Esq. with him, Moshood Abiola, Esq. and O.Y. Bashiru, Esq.For Respondent
