ADEREMI OMOTAYO V. THE STATE
(2012)LCN/5571(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/B/144C2/2007
RATIO
EVIDENCE: REQUIREMENTS FOR A CONVICTION TO BE BASED ON CIRCUMSTANTIAL EVIDENCE
The law is that for a conviction to be based on circumstantial evidence, the circumstantial evidence must point to only one rational conclusion namely that the offence had been committed and that it was committed by the accused. In other words the circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused person. Nasiru v. State (1999) 2 NWLR (Pt. 589) 87. Further in order to draw the inference of the accused person’s guilt from circumstantial evidence, there must not be any other co-existing circumstances which would weaken or destroy the inference. The facts must be such that they cannot be accounted for on any other rational hypothesis, other than the guilt of the accused. State v. Edobor (1975) 0 – 11 SC 69; Eze v. State (1976) 1 SC 125; Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186. PER CHINWE EUGENIA IYIZOBA, J.C.A.
WORDS AND PHRASES: MEANING OF CIRCUMSTANTIAL EVIDENCE
In Akinmoju v. State (1995) 7 NWLR (Pt.406) 204, it was observed referring to some English authority that circumstantial evidence is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING THE GUILT OF THE ACCUSED PERSONS
The burden of proving the guilt of the accused persons remained throughout on the prosecution and cannot shift. This includes the burden of leading evidence to disprove any defence set up by the accused or likely to arise in the case. The prosecution cannot be said to have discharged the onus of proof beyond reasonable doubt that the appellant herein and his co-accused killed the deceased when they did not lead evidence to eliminate the possibility that the deceased may have committed suicide. See Idowu v. State (2000) 12 NWLR (Pt 680) 48 @ 80 – 81 H – A; Alonge v. I.G.P. (1959) SCNLR 516; R v. Abengowe 3 WACA 85; R v. Oledinma & Ors 6 WACA 202. PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: SITUATION WHERE CIRCUMSTANTIAL EVIDENCE MAY BE RELIED ON
Where there is no direct eyewitness evidence as to the commission of a crime such as murder, the prosecution may rely on circumstantial evidence to prove its case. See: Mohammed vs. The State (2007) 11 NWLR (1045) 303 @ 327 C – D; 329 D – E; 331 C-F; Adeniji v. The State (2001) 12 NWLR (730) 375 @ 397 E-F; Ikomi v. The State (1986) 5 SC 313 @ 359. The circumstantial evidence relied upon must be cogent and compelling and must lead to only one conclusion: that the accused person committed the offence. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ADEREMI OMOTAYO Appellant(s)
AND
THE STATE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The appellant Aderemi Omotayo was arraigned as 2nd accused before Fagbe J. of the High Court of Ondo State sitting at Akure on the 29th day of July, 2003 along with two other co-accused persons, Feyisayo Olatise 1st accused and Fredrick Akintade 3rd accused on a two count charge of conspiracy and murder contrary to Sections 324 and 319 of the Criminal Code, Cap. 30 Volume II Laws of Ondo State of Nigeria, 1978 (now Cap 37 Volume 1 Revised Laws of Ondo State).
The prosecution’s case is that the deceased, Joseph Olatunde was on the 20th day of September 1996 shot and killed in the sitting room of the 1st accused at his residence at Ubi Camp Idanre by the 1st accused who conspired with the appellant herein and the 3rd accused to carry out the unlawful act. It was alleged that the 1st accused had deposited two bags of Indian hemp in the farm of the deceased. The deceased found the bags in his farm and raised an alarm which led to their disposal. The 1st accused on two separate occasions 12th and 19th of September, 1996 sought to see the deceased without success. On the 20th of September, the 1st accused sent his wife to the house of the deceased to fetch him. The wife of the deceased who at the trial testified as PW1 in her evidence said that she followed her husband to the house of the 1st accused carrying her baby. There, they met the 1st accused, the appellant herein, the 3rd accused and others. PW1 testified that the 1st accused confronted the deceased as to why he raised alarm over the Indian hemp he (the deceased) found in his farm. At this stage PW1 said that her baby started crying and the 1st accused advised her to take her baby home for attention. She then left. While she was away attending to her baby, she heard the sound of a gun shot and returned to the house of the 1st accused to find her husband lying dead in the sitting room of the 1st accused. She claimed that she saw a gun later identified as belonging to the 1st accused on top of a table in the sitting room.
The three accused in their defence told a different story. They claimed that the 1st accused and the deceased were engaged in an argument over missing cocoa beans belonging to the 1st accused which the 1st accused alleged were stolen by the deceased. In the scuffle that followed, a crowd gathered. The deceased then walked into the house of the 1st accused and what followed was the sound of a gun shot. When the 1st accused rushed to see what happened, he found the doors locked from within. When the people around peeped from the window of the house, they found the deceased lying down, having shot himself. The Police later broke into the house to gain access to the corpse of the deceased. The appellant had made three statements to the Police: Exhibit 1 made on 21/9/96; Exhibit J made on 21/9/96 and Exhibit D1 made on 24/9/96. Exhibit J is in line with the oral evidence of the appellant in court and the case of the defence as set out above. Exhibits 1 and D1 differed as to the cause of the dispute between the 1st accused and the deceased. They both confirm the case of the prosecution that the cause of the dispute was the Indian hemp found in the farm of the deceased but maintained that the deceased shot himself in the living room of the 1st accused.
At the trial of the case, the prosecution called five witnesses.
The appellant and the other accused persons testified on their own behalf and called no other witness. Learned counsel for the parties filed written addresses which were duly adopted. The learned trial Judge found the Appellant and the other two accused guilty as charged on Count 1 of conspiracy and sentenced them to 14 years imprisonment. On count 2, the learned trial judge found them guilty of murder and sentenced them to death by hanging.
By an amended notice of appeal dated 19th April 2010, the appellant herein filed a separate appeal containing three grounds of appeal. The grounds of appeal without their particulars are as follows:
1. GROUND ONE
That the learned trial Judge committed a grave error in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death when the prosecution failed to prove any direct or positive act or omission of the appellant that resulted in the death of the deceased and thereby failed to prove his guilt beyond reasonable doubt.
2. GROUND TWO
That the learned trial Judge erred in law and in fact in convicting the appellant of the offences of conspiracy and murder and sentencing him to death in the light of the material contradictions in the evidence of the prosecution witnesses which were never resolved.
3. GROUND THREE
That the learned trial Judge erred in law when he called on the appellant to prove his innocence contrary to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and thereby occasioned a grave miscarriage of justice.
Out of the three grounds of appeal, the appellant distilled two issues for determination. The issues are:
1. Whether the learned trial Judge was right in holding that the prosecution proved a case of murder against the appellant beyond reasonable doubt particularly in the light of evidence adduced?
2. Whether the defence put up by the appellant was considered?
In his brief of argument, learned counsel for the respondent adopted the above issues. Both Counsels argued the two issues together.
Learned Counsel for the appellant Olakunle Agbebi Esq. after setting out the law on burden of proof in murder trials and what the prosecution must prove to secure a conviction for murder submitted relying on the case of R. v. Nwokocha (1949) WACA 453 that the prosecution failed abysmally to prove that the act of the appellant caused the death of the deceased and that the appellant knew that death or grievous bodily harm would be the probable consequences of his act. Counsel submitted that the evidence adduced by the prosecution as regards the events and circumstances that led to the death of the deceased did not allude or point to any direct or indirect act of the appellant that caused the death of the deceased. Counsel further submitted that a perusal of the record of appeal shows also that there is no evidence on record by any of the prosecution witnesses of anything said, done or omitted to be done by the appellant that can be linked to the death of the deceased or as to be the probable cause of his death. Counsel consequently submitted that the learned trial Judge was wrong to have held that the prosecution proved a case of conspiracy and murder against the appellant.
Mrs. A. O. Adeyemi-Tuki DPP Ministry of Justice, Ondo State for the respondent in her brief of argument relying on the case of Adeniji v. State (2001) 13 NWLR (Pt 730) 375 @ 397 E-F submitted that the learned trial Judge correctly relied on circumstantial evidence in view of the absence of direct eye witness account of the shooting. Learned counsel argued that the evidence of the witnesses called by the prosecution coupled with other circumstantial facts proved at the trial connected perfectly in an unbroken chain of events leading to the murder of the deceased. I have set out just the crux of the arguments of both Counsels. Further details of their submissions will be considered as the need arises in the course of the judgment.
As succinctly put by Mr. Olakunle Agbebi for the appellant, the presumption in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 that an accused person is innocent until proven guilty places a very heavy burden on the prosecution. The prosecution must not only prove the guilt of the accused, proof must be beyond reasonable doubt: Section 138(1) of the Evidence Act. The burden rests throughout on the prosecution and does not shift. There must be no doubt in the mind of any person reading the facts of the case that the accused is indeed guilty of the offence charged. Where there is doubt or where the prosecution’s case is shaky, the accused would be entitled to have the benefit of such doubt resolved in his favour. See Alonge v. IGP (1959) SCNLR 516; Okogbue v. C.O.P. (1965) NMLR 232; Umeh v State (1973) 2 SC 9; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686.
The appellant herein was convicted along with two others of conspiracy and murder. To secure a conviction for murder, the prosecution must prove:
1. That the deceased died;
2. That the death of the deceased was a result of the act or omission of the appellant; and
3. That the act of the appellant was intentional knowing that death or grievous bodily harm would be the probable consequence of the act.
This appeal concerns only the appellant who was convicted as the 2nd accused person. I shall consequently concern myself in this judgment primarily with evidence led in respect of the appellant. Of the five witnesses called by the prosecution, none was an eye witness to the events leading to the death of the deceased. A careful perusal of the evidence led by each of the five prosecution witnesses revealed that the appellant played no role whatever in the events leading to the death of the deceased, other than the fact that he was present in the house of the 1st accused at the material time. PW1, the wife of the deceased under cross-examination at page 22 of the record of appeal said:
“The second accused was present when my husband was killed. The second accused knows about the death of my husband”.
At page 23 of the record, PW2 Funke Babatunde the daughter of the deceased under cross-examination said she knew it was the 1st accused who killed her father and that the 2nd and 3rd accused persons were present when the 1st accused killed her father. PW2 was not present during the incident and merely retold what she claimed she was told by her mother PW1 who also was not present. Given that the appellant was employed as a labourer by the 1st accused and the fact that he lives in his house, his presence in the house can not by itself alone lead to the conclusion that he participated in the murder or that he was part of a conspiracy to murder the deceased. The other three prosecution witnesses PW3, PW4 and PW5 led no evidence whatsoever against the appellant. There is consequently no direct evidence linking the appellant to the murder of the deceased and no direct evidence of conspiracy by the appellant and his co-accused.
Mrs. Adeyemi-Tuki for the respondent in her brief conceded that none of the prosecution witnesses was a direct eye witness of the shooting. She however argued that their evidence coupled with other circumstantial facts proved at the trial connected perfectly in unbroken events leading to the murder of the deceased. She set out the facts which the lower court relied upon in coming to the conclusion that there is an unbroken chain of events culminating in circumstantial evidence sufficient to justify the conviction. These facts are at pages 91 and 92 of the record of appeal.
The law is that for a conviction to be based on circumstantial evidence, the circumstantial evidence must point to only one rational conclusion namely that the offence had been committed and that it was committed by the accused. In other words the circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused person. Nasiru v. State (1999) 2 NWLR (Pt. 589) 87. Further in order to draw the inference of the accused person’s guilt from circumstantial evidence, there must not be any other co-existing circumstances which would weaken or destroy the inference. The facts must be such that they cannot be accounted for on any other rational hypothesis, other than the guilt of the accused. State v. Edobor (1975) 0 – 11 SC 69; Eze v. State (1976) 1 SC 125; Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186.
The facts which the lower court deemed circumstantial evidence sufficient to convict the appellant and his co-accused are as follows:
1. That the three accused persons and the deceased are all dwellers of Ubi camp in Idanre.
2. That the 1st accused is the master of the 2nd accused and the two of them live in the same house while the 3rd accused is a friend of the 1st accused. The deceased was also a friend of the 1st accused.
3. That the deceased discovered some bags of Indian hemp in his cocoa farm and raised an alarm. After this the 1st accused started to look for the deceased.
4. That on 20/9/96, the 1st accused succeeded in getting the deceased when he invited the deceased to his house. The 1st accused had already assembled the 2nd and 3rd accused and one Ojo still at large in his house.
5. That the 1st accused confronted the deceased with the Indian hemp issue and demanded to know what had happened to it.
6. That while they were still arguing the 1st accused told the wife of the deceased to leave the scene in order to attend to her baby who was then crying. The woman complied.
7. That after leaving the scene there was a gun shot in the direction of where the accused and the deceased were and when the wife of the deceased got back to the scene as a result of the gun shots she heard, she met her husband dead in the sitting room of the 1st accused and saw a gun on top of a table where the deceased’s lifeless body was.
8. That the accused persons were the people who last saw the deceased alive because he was in their company.
As far as the appellant herein is concerned, I have no doubt in my mind that the facts above fall gravely short of the standard required to secure a conviction against him based on circumstantial evidence.
The only facts concerning the appellant therein are that the 1st accused is his master and that he lives in his house; that he was one of those who last saw the deceased alive. The fact of the 1st accused having already assembled the 2nd and 3rd accused persons in his house on 20/9/96 as evidence of conspiracy does not arise as the 1st accused is the master of the appellant and the appellant lives in the house of the 1st accused. This explains convincingly his presence in the scene of the alleged crime and punctures any inference of a preconceived plan or conspiracy to commit the offence. With respect to the allegation that the deceased was last seen alive in the company of the appellant and the two other accused persons, Mrs. Adeyemi-Tuki referred to it as an important circumstantial fact correctly relied on by the lower court. She was of the opinion that on that point the facts of this case are similar to the cases of Mohammed v. State (supra) and Peter Igho v. The State (1978) 3 SC 87. With all due respect to learned counsel I do not agree with her view. In the two cases mentioned the relevance of the deceased being last seen alive in the company of the accused persons arose because the deceased persons were in the first instance declared missing. That is not the case here. The deceased was not found missing. Therefore the question of being seen last with the appellant and the other two accused persons is of no relevance.
There is consequently no evidence, direct or circumstantial on which to base the conviction of the appellant herein.
At page 14 of her brief of argument Mrs. Adeyemi-Tuki observed:
“In the instant case, the evidence of conspiracy which the court believed was offered by the PW1 on page 20 of the records. The relevant aspects of it are:
“In the farm we saw about four bags containing Indian hemp. When we saw the bags my husband cried out and alerted other camp dwellers and said the person who brought the Indian hemp to his farm should come and remove it. One Ojo now at large met the deceased and told him that he and the 1st accused were the people who put the Indian hemp there.”
When PW1 and the deceased arrived at the house of 1st accused on 20/9/96, the said Ojo along with the appellant and the other accused were met waiting for the deceased. Appellant then confronted him with the question of Indian hemp. Now while PW1 was away to attend to (sic) his child on the insistence of the 1st accused, (sic) he heard a gun shot and the deceased was killed. It is submitted that it is logical and reasonable to draw the inference that they all conspired to kill the deceased. A look at all the statements (which are exhibits in this case) made by the appellant and the 2nd and 3rd accused persons before the police would show they were contradictory and they also gave conflicting oral evidence in court. The exhibits more than anything shows the involvement of the three accused persons in the Indian hemp deal which is the motive for the killing.
The question may be asked who actually fired the fatal shot since there is no direct evidence on this. The court has held in Mohammed v. State (2007) 13 NWLR (Pt. 1050) 187 @ 207 Para C-D, that it is immaterial that the prosecution could not prove who between the appellants actually killed the deceased. What matters is that the appellants actually killed the deceased in the prosecution of their common intention or design.”
What then is the common intention or design of the accused persons in this case to justify the inference of a conspiracy? In Mohammed v. The State (supra) referred to above by learned counsel, the undisputed evidence was that the appellants formed a common intention to use a human head for money making ritual and in pursuance of same they lured the deceased to the house of the 1st appellant and into the waiting hands of the 2nd appellant who used a charm on the deceased and his neck and head were amputated from his body. The headless body was buried in a shallow grave from where it was later exhumed. There is no such evidence direct or circumstantial of any common intention by the appellant herein and his co-accused. Even if it is assumed that the motive for the killing of the deceased had to do with the Indian hemp found in the farm of the deceased, the mere fact that when the deceased and his wife got to the house of the 1st accused, they saw the appellant and the 3rd accused is not evidence of a common intention to carry out an unlawful purpose because the presence of the appellant could be explained on the basis that he is an employee of the 1st accused and lives with him. There is no doubt that the conflicts in the three statements made by the appellant leave one with suspicions as to what actually happened. But suspicions no matter how strong can never found a conviction in the absence of cogent and compelling evidence. In Akinmoju v. State (1995) 7 NWLR (Pt.406) 204, it was observed referring to some English authority that circumstantial evidence is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. The evidence led in this case by the five witnesses called by the prosecution was simply inadequate to discharge the burden on the prosecution to prove the case beyond reasonable doubt. For example as submitted by Mr. Agbebi for the appellant, the prosecution failed to resolve the contradiction in the evidence relating to the position of the gun that caused the death of the deceased. The lower court accepted the evidence of PW1 that the gun from which the fatal shot was fired was on a table beside the deceased while PW3 testified that he saw the gun by the side of the deceased. PW4, P.C. Ogunmade to whom the case was transferred to from Owena Division Idanre was not the police officer that carried out the initial investigation. He could not give evidence of the exact location of the gun when the body was taken away by the police. The learned trial Judge was therefore in error to have accepted the testimony of PW1 over that of PW3 when the contradiction remained unresolved and no explanation was given as to why he preferred the evidence of PW1 to that of PW3. In other words the evidence was not properly evaluated. In Morka v. State (1998) 2 NWLR (Pt.537) 294 referred to by learned counsel for the appellant, the court of appeal Benin division per Rowland J.C.A. stated that in such circumstances, to properly evaluate the evidence, the trial judge ought to take into consideration the knowledge of facts to which the witnesses testify, their disinterestedness, their integrity, their veracity and whether their evidence was contradictory or contradicted by surrounding circumstances. PW1 clearly is an interested witness. She is interested in having the accused persons convicted for her husband’s death notwithstanding that she was not present when the shooting occurred. The learned trial Judge was wrong to have placed so much reliance on her evidence. The prosecution clearly did a shoddy job in the investigation of the case. Worst of all, the Investigating Police Officer (IPO) was not called to give evidence. Efforts to get him to come to court and testify proved abortive. This in my view was fatal to the case of the prosecution. His evidence could have resolved some of the knotty issues such as the condition and position of the body of the deceased after the fatal shot; whether indeed the room wherein the deceased died was locked from the inside or not; the exact position of the gun and the angle in which it was lying in other to determine whether the deceased could have pulled the trigger. Failure to resolve these issues have created doubts in the case of the prosecution which ought to be resolved in favour of the appellant. See Morka v. State (Supra).
The trial Judge in my view tried to bridge the yawning gaps in the case of the prosecution by drawing unjustified inferences from the facts available and accepting hook, line and sinker the evidence of PW1 without proper evaluation and notwithstanding that she is an interested party.
The main issue here is that the appellant and the other accused persons strongly relied on the defence that the deceased committed suicide while the prosecution claims he was killed by the 1st accused in collaboration with the appellant herein and the 3rd accused. The prosecution is consequently duty bound to lead evidence to eliminate the possibility that the deceased committed suicide. This, the prosecution failed to do. It is surprising that the prosecution failed to call as witnesses any of the numerous persons said to have been at the scene in the house of the 1st accused when the deceased was alleged to have rushed into the living room of the 1st accused and shot himself. Under cross-examination at page 21 of the record, PW1 said she met some other people other than the accused persons in the house of the 1st accused. Why were those others not called as witnesses? At page 26 of the record, PW4 Police constable John Ogunmade while testifying said:
“I interrogated the complainant after which I took down her statement. In the statement of the complainant she mentioned the names of some people in connection with the case. I also interrogated the people and obtained their statements. I also interrogated the accused persons one by one after which I took down their statements after I had cautioned them.”
From the above testimony, it seems PW4 interrogated only the persons mentioned by the complainant PW1. If those persons are the witnesses called by the prosecution, none of them was an eye witness to the events culminating in the death of the deceased. In the statements of the accused persons, several individuals were mentioned as eyewitnesses to the events. For example in exhibit H, the second statement of the 1st accused made on 21/9/96, he said:
“….And the following people who were around advise us not to fight until the master of Lekiti (deceased) return (1) Segun Adiyate (2) Mr. Semowa (3) Mr. Bricolo and (4) one Israel (5) Baba Blessing (6) Orisher Kejor….and Femi with many others advise us not to fight. I did not know that this man Lekiti has (sic) hide his gun inside my room. In the presence of the people I mention above he entered my house (sic) living us outside and all of us of a sudden we heard a gun shot, and we both try to enter inside and we discovered that he has locked the door. And we pass through the (sic) windo were we see that he has (sic) kill himself.”
The question is why did the prosecution not call any of these eye witnesses mentioned by the 1st accused to give evidence? No explanation whatever was given for the failure to call any of them. There was no evidence in the record of appeal that attempt to secure their attendance was unsuccessful. In short no effort whatever was made to call any of them. On this issue the Supreme Court case of Onah v. State (1985) 3 NWLR (Pt.12) 236 is quite illuminating. The appellant was convicted of murder and sentenced to death by the Anambra State High Court. She was alleged to have killed one Edengwu Ogwa, a relation of her husband, by inflicting matchet cuts on her. The evidence against the accused was mainly circumstantial. The corpse of the deceased was found close to her compound. Blood stains were found on her wrapper. A blood stained matchet was also found in her room which she shared with her husband. Matchet cuts were found on the deceased. There was however no positive evidence linking the accused with the actual killing of the deceased. The prosecution during the trial failed to call as a witness, one Eke Agbo, who seemed to know more than anybody else the circumstances surrounding the killing and whose evidence could have helped in deciding the case one way or the other. Nonetheless, the learned trial Judge convicted the accused as charged, and this was confirmed by the court of appeal. The Supreme Court set aside the conviction holding that although in criminal cases the prosecution has the discretion to call whichever witness it considers necessary to prove the offence charged its failure to call very vital witnesses whose evidence may determine the case one way or the other will be fatal to the case. At page 241 of the judgment, Uwais J.S.C. (as he then was) observed:
“There is no doubt that this appeal is well grounded on the argument that the circumstantial evidence adduced by the prosecution is not so irresistible that the appellant could have been found guilty of murder by the trial court. If is not in dispute that there was no eye witness to the killing of the deceased. The evidence which positively indicated that the appellant was responsible for the murder of the deceased was the evidence of PW4 whose testimony was based on the ipse dixit of Eke Agbo.
Eke Agbo was not called as a witness by the prosecution. She is a vital witness in the case, as the inference to be drawn from the prosecution’s evidence is that either she was an eyewitness to the appellant committing the offence or that the appellant confessed to her that she (the appellant) killed the deceased. In the absence of her evidence the important question as to whether the appellant is guilty of the offence charged could not have been properly resolved by the learned trial judge. This is the more so since the evidence of P.W.4 that Eke Agbo told her that the appellant killed the deceased had been shown, under cross-examination of the witness to be inadmissible, as hearsay, because P.W.4 admitted that at the time Eke Agbo told her the story, the appellant was not present.
It was outside the house of P.W.4 that Eke Agbo narrated the story. Therefore the failure of the prosecution to call Eke Agbo as a witness was fatal to their case – see Opayemi v. The State, (1995) 2 NWLR 101 @ 108 and Abdulkafir Gusau v. Commissioner of Police (1968) NWLR 329.”
Just as in the above case, I think that the failure by the prosecution to call vital witnesses who were present at the time of the shooting is fatal to their case. The case of Mamuda Buba v. The State (1994) 7 NWLR 195 @ 203 cited by Mrs. Adeyemi-Tuki is clearly inapposite because in that case the witnesses not called were not necessary for the proof of the case of the prosecution. Here the witnesses are vital for the proof of the prosecution’s case. Indeed, the law is that where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that witness been called his evidence would have been unfavourable to the party who called him. Section 149(d) of the Evidence Act. How else does one explain the fact that so many persons were mentioned in the statement of the accused persons who were said to be eye witnesses to the event, yet the prosecution failed to call any of the witnesses but called witnesses who were not present and could only give hearsay evidence that the deceased was killed by the accused persons. The only rational explanation is that if those witnesses had been called, their evidence would have been unfavourable to the prosecution. I am of the view therefore that the failure of the prosecution to call any of the persons mentioned by the accused persons in their statements as having been there at the scene when the deceased rushed in and shot himself left the issue of suicide open. As far as the issue remains open the circumstantial evidence adduced by the prosecution is not so mathematically accurate as to point to only one irresistible conclusion that the deceased was killed by the 1st accused in collaboration with the appellant and the 3rd accused.
I agree with learned counsel for the appellant that the learned trial judge was wrong in his view that the burden rested on the accused persons to call as witnesses the people present when the deceased allegedly shot himself. The burden of proving the guilt of the accused persons remained throughout on the prosecution and cannot shift. This includes the burden of leading evidence to disprove any defence set up by the accused or likely to arise in the case. The prosecution cannot be said to have discharged the onus of proof beyond reasonable doubt that the appellant herein and his co-accused killed the deceased when they did not lead evidence to eliminate the possibility that the deceased may have committed suicide. See Idowu v. State (2000) 12 NWLR (Pt 680) 48 @ 80 – 81 H – A; Alonge v. I.G.P. (1959) SCNLR 516; R v. Abengowe 3 WACA 85; R v. Oledinma & Ors 6 WACA 202.
Mrs. Adeyemi-Tuki for the respondent in her brief cited the case of Uche v State (1973) ALL NLR 826 or (1973) 11 SC 223 or (1973) LPELR-SC 188/1973 and submitted that the case is on all fours with the case before us and urged us to uphold the conviction of the appellant as the Supreme Court did in Uche’s case. With all due respect the two cases are far from being on all fours. In Uche’s case there were three people in the living room the appellant, the deceased and PW1. The appellant and the deceased left PW1 in the living room and went into the bedroom. They were in the room for quite a while and PW1 almost dozed off in the living when he suddenly heard a gunshot. He went outside to check where it came from and saw nothing. He returned to the living room and shortly after the appellant carried the deceased out of the room and said he committed suicide. During the trial the appellant denied being in the bedroom with the deceased and claimed contrary to the evidence of PW1 that he was in the living room with PW1 when the deceased shot himself. Furthermore there was evidence before the court:
– That the entry point of the fatal bullet was about 4 inches behind the left ear.
– That the murder weapon even after death was held in the hand of the deceased loosely and clumsily instead of being tightly grasped.
– That the trail of the bullet through the brain was oblique.
– That there was total absence of singeing of the hair around the entry wound of the bullet.
– That the bullet remained lodged on the other side of the skull instead of coming clear of it.
The Supreme Court in affirming the judgment of the lower court convicting the appellant ruled out suicide as alleged by the appellant because from the evidence the only reasonable inference is that the deceased was shot at from behind and at a distance by the only other person with him in the room, the appellant. In the case before us no evidence at all was led to enable the court rule out the possibility of suicide. The prosecution made no effort to adduce the kind of evidence available to the court in Uche’s case. The two cases are certainly not on all fours. The Prosecution failed to prove beyond reasonable doubt that the appellant and his co-accused murdered the deceased by failing to adduce evidence to eliminate the possibility of suicide. The circumstantial evidence in the case was inconclusive leaving doubt as to the guilt of the appellant and the doubt must be resolved in his favour.
The two issues formulated in this appeal are resolved in favour of the appellant.
The learned trial Judge was wrong in convicting the appellant of conspiracy and murder. This appeal succeeds and is allowed. The conviction and sentence passed on the appellant Aderemi Omotayo is hereby set aside. In its place the appellant is discharged and acquitted.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, Chinwe E. Iyizoba, JCA just delivered. Where there is no direct eyewitness evidence as to the commission of a crime such as murder, the prosecution may rely on circumstantial evidence to prove its case. See: Mohammed vs. The State (2007) 11 NWLR (1045) 303 @ 327 C – D; 329 D – E; 331 C-F; Adeniji v. The State (2001) 12 NWLR (730) 375 @ 397 E-F; Ikomi v. The State (1986) 5 SC 313 @ 359. The circumstantial evidence relied upon must be cogent and compelling and must lead to only one conclusion: that the accused person committed the offence.
By virtue of Section 138 of the Evidence Act the prosecution must prove its case beyond reasonable doubt.
Having regard to the facts and circumstances of this case fully set out in the lead judgment, the prosecution failed woefully in this regard. The circumstantial evidence did not lead to the irresistible conclusion that the appellant played any part in the murder of the deceased. The prosecution also failed to rebut the doubt created by the assertion of the accused persons that the deceased committed suicide. Where the evidence shows that the deceased might have met his death in a manner otherwise than as alleged by the prosecution or that someone other than the accused person might have caused his death, such doubt must be resolved in favour of the accused, See: Aiguoreghian vs. The State (2004) 3 NWLR (860) 367 @ 429 A-D.
For these and the more detailed reasons comprehensively set out in the lead judgment, I also find merit in this appeal. Accordingly I allow the appeal and set aside the conviction and sentence of the appellant by the trial court. He is accordingly discharged and acquitted.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA. I agree entirely with the reasoning and conclusion of His Lordship that this appeal has merit. I also allow it and set aside the judgment of the trial court convicting and sentencing the appellant of the offences of conspiracy and murder.
The appellant is hereby discharged and acquitted of the said offences.
Appearances
OLAKUNLE AGBEBI ESQ.For Appellant
AND
A. O. ADEYEMI-TUKI (MRS.) DPP with TAIWO OLUBODUN ESQ. DDCL and ALABA OGUNYEMI ESQ. SLOFor Respondent
