CHIAMAKA NNAJIOFOR v. PEOPLE OF LAGOS STATE (2015)

CHIAMAKA NNAJIOFOR v. PEOPLE OF LAGOS STATE

(2015)LCN/7833(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of March, 2015

CA/L/122/2014

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; WHAT THE PROSECUTOR CAN TO PROVE TO SECURE CONVICTION

In murder cases, the prosecutor can only secure conviction, if it proves the following:
1. that the deceased died
2. that the death of the deceased was caused by the accused.
3. that the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Shande vs State (2005) 1 NWLR Pt.907 pg 218, Igabele vs State (2004) 15 NWLR pt 896 pg 314, Ubani vs State (2003) 18 NWLR Pt.851 pg 224, Ugunu vs State (2002) 9 NWLR Pt.771 pg 90, Igabele vs State (2006) 6 NWLR Pt.975 pg 100, Adava vs State (2006) 9 NWLR Pt.984 pg 155. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

The evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court, which saw, heard and assessed the witnesses while they testified.
See Agbi-Ogbeh (2006) 11 NWLR Pt.996 pg 65, Bashaya vs State (1998) 5 NWLR pt 550 pg 351, Ojokolobo vs Alamu (1998) 9 NWLR pt 565 pg 226, Sha vs Kwan (2000) 5 SC pg 178, State vs Ajie (2000) 7SC Pt.1 pt 24.
It is only where it fails to evaluate the evidence properly or at all that an appellate court can intervene and re-evaluate such evidence, otherwise the appellate court has no business interfering with the finding of the trial court on such evidence. See Adebayo vs Aduseyi (2004) 4 NWLR Pt 862 pg 44. Having appraised and evaluated the evidence well in her words, she thereafter reached a wrong conclusion.
The Appellate court has no business in interfering with such evaluation except where the evaluation is not properly done and or the court reached a wrong conclusion. Adebayo vs Aduseyi (2004) 4 NWLR Pt 862 pg 44. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROOF IN A MURDER CHARGE

CRIMINAL LAW: THE OFFENCE OF MURDER; WHETHER IN EVERY CASE WHERE IT IS ALLEGE THAT DEATH HAS RESULTED FROM THE ACT OF A PERSON, A CAUSAL LINK BETWEEN THE DEATH AND THE ACT MUST BE ESTABLISHED AND PROVED BEYOND REASONABLE DOUBT
The courts have held that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence see Ofolete vs State (2000) 12 NWLR Pt.631 pg 415, Oche vs State (2007) 5 NWLR Pt.1027 pg 214. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL CASES

The burden of proof in criminal cases lies, throughout on the prosecution and never shifts. Failure to discharge this burden renders the benefit of the doubt in favour of the accused. Ani vs State (2003) 11 NWLR Pt.830 pg 142, Ifejirika vs State (1999) 3 NWR Pt.593 pg 59, Igabele vs State (supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: PROVING THE GUILT OF THE ACCUSED; WAYS OF PROVING THE GUILT OF THE ACCUSED

The guilt of the accused can be proved by:
a. The confessional statement of the accused person or
b. Circumstantial evidence or
c. Evidence of eye witness of the crime
The prosecution does not always need an eye witness account to convict an accused of murder, if the charge can otherwise be proved. Igabele vs State (supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: CONFESSION; WHETHER A TRUE AND VOLUNTARY CONFESSION, WHICH IS DIRECT AND POSITIVE AND PROPERLY PROVED IS SUFFICIENT TO SUSTAIN A CONVICTION WITHOUT ANY CORROBORATIVE EVIDENCE

The law is that a true and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the court is satisfied with its truth. There is, however, a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court. See Solola vs State (2005) 11 NWLR pt 937 pg 460, Nwaeze vs State (1996) 2 NWLR Pt.428 pg 1, Akinmoju vs The State (2000) 4 SC Pt.1 pg 64. Where there is no confessional statement, therefore, as in this case, the prosecution need to prove its case by another means i.e circumstantial evidence. Circumstantial evidence may ground a conviction only where the circumstances of the case points only to one direction. See Nwaeze vs States (Supra), Akinmoju vs The State (Supra), Durowode vs The State (2000) 12 SC pt 1 pg. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

CHIAMAKA NNAJIOFOR Appellant(s)

AND

PEOPLE OF LAGOS STATE Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State sitting in Ikeja. The Appellant, with one other, was charged on a one count charge of murder contrary to Section 319 (1) of the Criminal Code Law, Cap C 17 Vol.2 Laws of Lagos State 2005. They both pleaded “not guilty” to the charge. They also denied killing the deceased, one Olive Orakwe.

The State in proof of its case called three witnesses and tendered some exhibits. In defence of the charge, the Appellant, 2nd defendant and one other testified as DW1, DW2 and DW3. At the end of the trial, the learned trial Judge delivered its considered judgment discharged and acquitted the 2nd defendant on grounds that there was insufficient evidence to convict him. The Appellant was, however, convicted and sentenced to ten (10) years imprisonment for the offence of Manslaughter.

Being dissatisfied, the Appellant filed a notice of Appeal with five (5) grounds. The Appellant also filed her Appellant’s brief on 25th of May, 2014. In it, the Appellant articulated five (5) issues for determination. They are as follows:-

1. Whether the prosecution proved its case beyond reasonable doubt that the appellant actually caused the death of the deceased;

2. Whether there was enough material evidence before the court linking the appellant with the death of the deceased;

3. Whether the circumstantial evidence upon which the learned trial Judge convicted and sentenced the 1st Defendant/Appellant is positive, cogent, strong and which when pieced together, leads to the irresistible conclusion that the 1st Defendant/Appellant indeed committed the crime;

4. Whether it is legally right and just to convict and sentence the 1st Defendant/Appellant based on the personal opinion and view of the trial Judge other than the material fact before the court; and

5. Whether the judgment of the trial court is not perversed and based on conjecture and malice by the PW1-PW3.

The Appellant argued issues one and two together and the three others separately.

In response, the Respondent filed its brief on 10th of July, 2014.
In it, the Respondent articulated just one issue for determination. It is as follows:

“Whether from the totality of evidence adduced at trial, the Lower Court was right to have found, convicted and sentenced the Defendant/Appellant to ten (10) years imprisonment for the offence of manslaughter for the unlawful killing of one Oliver Orakwe”

The issue framed by the Respondent adequately captures all the issues and shall be utilized in the determination of this appeal.

Learned counsel to the Appellant submitted that in a criminal trial, the prosecution has the onus of proving its case against the accused persons beyond reasonable doubt. It is further submitted that, to establish an offence of murder, the prosecution must prove beyond reasonable doubt the following:-

1. That the deceased had died;

2. That the death of the deceased has resulted from the act of the accused; and

3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was it’s probable consequence. See Ita Effiong Ekang vs. The State 2001 Vol. 20 WRN pg. 30; Akinfe vs. The State (1988) 3 NWLR (Pt. 85) pg.729; Ogba vs. The State (1992) 2 NWLR Pt. 222 pg.164; Inyang Etim Akpan vs. The State (1994) 9 NWLR (Pt.368).

Counsel also relied on the judgment of the Supreme Court in Phillip Omogodo vs. The State (1981) 5 SC 5 pgs. 26-27 where the court held that:

“In a murder case as in the instant case, the prosecution cannot succeed in establishing the guilt of the accused unless he established the cause in addition, that the act of the accused caused the death of the deceased”.

That so far, only the first ingredient has been established by the prosecution, in this case. It is submitted that the cause of death in the instant case cannot be attributed to the act of the appellant.
The prosecution, by the evidence led at the trial court, has failed to prove the cause of death and whether the cause of death is linked to the Appellant. First the prosecution listed 11 witnesses but only called three who never witnessed the commission of the crime while those who witnessed the incident were not called. The evidence of PW1 and PW2 was based on what they were told by the house helps and other tenants. These pieces of evidence are inadmissible because it is hearsay and not corroborated. Counsel relied on Section 37 (a) and (b) of the Evidence Act 2011. Furthermore the evidence of PW3 was inaccurate as the autopsy on the deceased body was conducted eight months after the death of the deceased and on a poorly preserved body. The testimony of the PW 3 is as follows:

“We were able to use evidence of what we saw in the skin, bones, the remains of the brains, the muscles that were examined. The others were totally decomposed not much could be written about. So my autopsy was on what I saw with a poorly preserved body”.

During cross examination PW3 further stated thus:

“An autopsy would be most accurate when done immediately. When decomposition sets in the result will be accurate to a point”.

Counsel submitted that in spite of these discredited evidence, the trial court relied on them to convict the Appellant.
Counsel further submitted that there are material contradictions between the evidence of PW1 – PW3 and the various statements of the two house helps, relations of the deceased, father of one of the house help, landlord of the house and the other members of the house. These contradictions were in respect of the cause of death of the deceased or whether it was the Appellant that killed the deceased or whether the deceased had died before reaching Eko Hospital in Surulere or was admitted and drugs administered to him before he died, Counsel contended that contrary to the testimonies of PW1 and PW2, the deceased was brought to the hospital alive but died as the doctors demanded for deposit for treatment. See pgs. 33 – 34, 128 – 145 of the Records of Appeal.

Another material contradiction was in respect of the instruments allegedly used to kill the deceased. Of all the instruments tendered as exhibits, it was only the belt, exhibit 9, which was alleged to have been used to beat the deceased while exhibit 8 (chain) and padlock were used to chain the deceased to the foot of the WC. Exhibit 14, rope, was never used. However, Counsel contended on behalf of the Appellant that the belt, Exhibit P9, belonged to the Appellant and was kept in good custody for repair. See pgs. 184 – 185 of the Record of Appeal.

Based on the foregoing, Counsel submitted that the trial court ought to have resolved all the doubts in favour of the Appellant instead of relying on the discredited testimonies of PW1-PW3 and personal opinion to convict and sentence the Appellant. He thus urged the court to uphold the Appellants appeal and upturn the lower court’s conviction and sentence as it is clear that the prosecution has failed to establish the cause of death of the deceased and also to link the death to the acts of the Appellant.

The Learned counsel for the Respondent on its own part submitted that, a court is empowered to convict for a lesser offence. In this case, the Appellant was charged with murder but the court found him guilty of Manslaughter which is a lesser offence on the ground that the requisite intention to kill was not established. The elements of the offence of manslaughter are similar to that of murder but for the fact that for manslaughter the defendant lacked the requisite intention to kill and or that death is the probable consequence of his act or omission.

It is submitted that the prosecution is saddled with the responsibility of proving the elements of the offence beyond reasonable doubt but not beyond all shadow of doubt. The prosecution has clearly established by credible evidence and beyond reasonable doubt all necessary ingredients for the offence of manslaughter against the Appellant. It is submitted that the prosecution has established through the evidence of PW1 and PW2, exhibits P5, P8, P9 that the Appellant was in the habit of maltreating the deceased; chaining him up at the foot of the WC which is evident from the bruises apparent on the body of the deceased. That the contention of the Appellant that Evidence of PW1 and PW2 are inadmissible because they are hearsay, it is submitted that PW1 and PW2 are police officers who gave detailed evidence of their findings in the course of investigation. Therefore, Appellant’s argument should be discountenanced.

It is further submitted that the prosecution has established through PW3 (the pathologist) that the deceased died from unnatural causes contrary to the evidence of the Appellant that the deceased died of ill health. See pages 355 -356 and 364 – 365 for PW3 detailed evidence.

On the issue of contradiction, it is submitted that the contradictions are minor discrepancy which will not affect the findings of the lower court. For contradiction to be fatal to the prosecution’s case it must go to the substance or touch on material point See. Mohammed Sele vs. State (1993) 1 NWLR (Pt 269- 276).

It is further submitted that it is the duty of the trial court to evaluate evidence placed before it in reaching a just conclusion and the Appeal Court should not interfere into such finding unless where it is perverse. He referred this court to the case of Gboko vs. State (2007) 17 NWLR Pt.1063 pg.272 @ 305 paragraphs G-H where the court stated thus:

“The court had applied the law to the circumstance of the case, the evidence adduced before it and arrived at the correct decision, it is not my duty at this stage to interfere with those findings. Issues as to facts, evaluation or evidence and credibility of witnesses are within the exclusive competence of a trial court and this court will not interfere unless such findings or decision was patently unreasonable, perverse or not supported by evidence”.

It is submitted that the trial court rightly evaluated the evidence placed before it and the conviction and sentence of the Appellant flows from the evidence adduced. He, therefore, urged this court to affirm the conviction and sentence of the Appellant by the trial court.

The prosecution, in proving the charge of murder against the two accused persons, called three witnesses, PW1 and PW2 who were the police officers who investigated the case referred to them.

PW 3 was the Pathologist who conducted the autopsy and also tendered the medical report.

During their investigation, Investigation Police Officer took the statements of (11) eleven witnesses but only was able to call (3) three of them. Even though the Law does not impose any obligation on the prosecution to call a host of witnesses to prove its case but the prosecution ought to call enough material witnesses to prove its case. See Olayinka vs State (2007) 9 NWLR Pt.1040 pg 561, Imharria vs Nigerian Army 1 (2007) 14 NWLR at 1053 pg 76.

In the present case, the prosecution only called the professional witnesses so to speak the two Investigating Police Officers and the Pathologist. The two Investigating Police Officers can only give evidence on what their investigation threw up.

There was no witness who came to give evidence on what happened to the deceased or on how the deceased died, and of what.
The other two househelps who could have told the court the situation in the house leading to the death of the deceased were not called. The two Investigating Police Officers can only say what they were told and, therefore, that aspect of their investigation is hearsay. Recovery of the items in the house is a direct evidence they got. Whether and how these exhibits played a part in the death of the deceased cannot be ascertained.

It is true that the prosecution is not duty bound to call any number of witnesses but in this case, the other two househelps are material witnesses who ought to be called in proof of this case.
The failure of the prosecution to call the two eye witnesses or people who had suffered the same fate with the deceased was fatal to this case. See Opayemi vs The State (1985) 2 NWLR (Pt 5) page 101 SC.
Yes, the Pathologist examined the body of the deceased and stated what he died of. There is no direct evidence of how he got the wounds on his body or any explanation of why he was emaciated.

The Appellant had given in evidence that she did not cane the deceased. She also denied that she did not chain the deceased to the toilet shank. Nobody could infact give a direct evidence of what really happen to the deceased. Both defendants denied having done anything that could possibly have led to the death of the deceased.

Neither did any of the three PWS, witness any of the acts that were alleged to have caused the death of the deceased.

The learned trial Judge held in her judgment thus:

“The evidence adduced by the Prosecution here is that of two police officers and of the Pathologist who conducted a post mortem examination of the deceased. The Prosecution has also placed before the court certain instruments and things which they say were used in torturing the deceased. It is their case that these acts of torture eventually lead to Oliver’s death. They also tendered the Statements made by the Defendants at the State CID. Reading through those Statements, I do not see that they amount to confessions to the crime of murder, or to any crime for that matter. Both Defendants deny having done anything that could possibly have led to the death of Master Oliver Orakwe. And then, none of the three witnesses called by the Prosecution himself witnessed any of the acts that are alleged to have caused Oliver’s death. Clearly, then, the Prosecution’s case is based on circumstantial evidence which, as they have argued in their final address, proves that the Defendants are guilty as charged”.

This is a summary of the evidence in this case. The trial judge summed it up nicely and thereafter somersaulted to find the Appellant guilty of manslaughter.

The trial Judge with the excerpts above showed that she evaluated the evidence properly. The evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the trial court, which saw, heard and assessed the witnesses while they testified.
See Agbi-Ogbeh (2006) 11 NWLR Pt.996 pg 65, Bashaya vs State (1998) 5 NWLR pt 550 pg 351, Ojokolobo vs Alamu (1998) 9 NWLR pt 565 pg 226, Sha vs Kwan (2000) 5 SC pg 178, State vs Ajie (2000) 7SC Pt.1 pt 24.
It is only where it fails to evaluate the evidence properly or at all that an appellate court can intervene and re-evaluate such evidence, otherwise the appellate court has no business interfering with the finding of the trial court on such evidence. See Adebayo vs Aduseyi (2004) 4 NWLR Pt 862 pg 44. Having appraised and evaluated the evidence well in her words, she thereafter reached a wrong conclusion.
The Appellate court has no business in interfering with such evaluation except where the evaluation is not properly done and or the court reached a wrong conclusion. Adebayo vs Aduseyi (2004) 4 NWLR Pt 862 pg 44.

In a murder charge, the prosecution is required to prove beyond reasonable doubt, not only that the act of the accused person could have caused the death of the deceased but that it actually did.
Audu vs State (2003) 7 NWLR pt 820 pg 516, Ugunu vs State (2002) 9 NWLR Pt.771 pg 90, R vs. Owe (1961) 2 SCNLR pg 354, R vs Nwokocha (1949) 12 WACA pg 453.
None of the PWS had connected the Appellant with the murder of the deceased. There is no link between the Appellant and the deceased except that the deceased lived with the Appellant until his death.
The courts have held that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it.
These are factual questions to be answered by a consideration of the evidence see Ofolete vs State (2000) 12 NWLR Pt.631 pg 415, Oche vs State (2007) 5 NWLR Pt.1027 pg 214.
In the present case, there is no causal link between the death and the act of the Appellant. This must be established and proved.
The prosecution has not been able to link the death of the deceased to the act of the Appellant. None of the PWS could give a direct evidence as to what the Appellant did to cause the death of the deceased. What made the deceased to be malnourished was not proved. It was not also proved what caused the injuries the Pathologist PW3 saw on the body of deceased.
There is no doubt that the deceased had died, but the cause of his death has not been linked to the acts of the Appellant.

The standard of proof in a criminal trial is proof beyond reasonable doubt. This means that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused with the offence, and that it was his act, which caused the offence. Abadoni vs State (1997) 1 NWLR Pt.479 pg 1, Akinyemi vs State (1999) 6 NWLR Pt.607 pg 449, Aigbadion vs State (2000) 4 SC Pt.1 pg 15.

In this case, the prosecution needed an eye witness account to be able to prove this case. There were eye witnesses or other people living in the house of the Appellant that could have given credible evidence to tie the Appellant to the crime. This failure is fatal to the prosecution’s case.

The statements of the Appellant cannot be said to be a confessional one. The trial Judge also found it as a fact that the Appellant’s statements were not confessional.

Where there is no confessional statement, therefore, as in this case, the prosecution need to prove its case by another means i.e circumstantial evidence. Circumstantial evidence may ground a conviction only where the circumstances of the case points only to one direction. See Nwaeze vs States (Supra), Akinmoju vs The State (Supra), Durowode vs The State (2000) 12 SC pt 1 pg 1. In this case, the only inference we get as to the acts of the Appellant is what the two Investigating Police Officers have given in evidence. Circumstantial evidence that merely raises a suspicion cannot ground a conviction. See Ajose vs State (2002) 7 NWLR pt 215 pg 1.
The courts have held that for circumstantial evidence to ground a conviction, it must be strong enough and leads to no other direction or conclusion which in effect means that the accused is guilty.

In this case, there is no evidence that leads to the fact that the Appellant did any act that might have caused the death of the deceased.

The prosecution in this case has not been able to prove all the ingredients to ground any conviction. The only ingredient that was successfully proved was that the deceased is dead.

It could not prove that the Appellant was responsible for the deceased death. Having failed to prove all the ingredients to ground a conviction of murder or even manslaughter, the benefit of doubt must be exercised in favour of the Appellant.

This issue is, therefore resolved in favour of the Appellant.
The Appeal is meritorious and, therefore, allowed. The judgment of the trial court delivered on 28th of October, 2013 is hereby set aside.
The sentence and conviction of the Appellant is hereby set aside.
Appellant is hereby discharged and acquitted.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree entirely with the Judgment prepared by my learned brother, Uzo Ndukwe-Anyanwu, J.C.A., which I had the privilege of reading in advance. I too would allow the appeal and quash the conviction and sentence of the appellant and enter an order of discharge and acquittal in his favour.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, U. I. NDUKWE – ANYANWU JCA and I agree with the reasoning and conclusion arrived at. The judgment is perverse and must be set aside. A judgment can be said to be perverse in the following circumstances:
(i) It is speculative and not based on any evidence; or
(ii) The court took into account matters which it ought not to have taken into account; or
(ii) The court shut its eyes to the obvious
See the case of OSUJI V. EKEOCHA (2009) 16 NWLR (Pt.1166) 81; SALISU V AMUSAN (2010) LPELR – 9013 (CA); NOMSAL MARKETING AND SUPPLIES LTD V JOASY PEN ENTERPRISES LTD (2005) LPELR – 5981 (CA) and ARCHIBONG V STATE (2004) NWLR (Pt. 855) 488 at 498. Where the decision of the court is not based on the evidence before it, the judgment is perverse.

The trial court here after a beautiful evaluation of evidence made a judicial somersault to find the appellant guilty. In the courts words on the evidence of the prosecution said as follows:

“I do not see that they amount to confessions to the crime of murder, or to any crime for that matter.”

If there was no confession which could have lessen the burden of proof on the prosecution, the circumstantial evidence very weak and no eye witness account of the commission of the crime, how could conviction be possible? Obviously therefore the judgment is perverse and must be set aside.

I also allow the appeal and abide by the orders made in the lead judgment.

Appearances

V. N. Osakwe N. OkoyeFor Appellant

AND

Hafeez F. Owokoniran (Principal State Counsel)For Respondent