CHIKWADO AMAOGU v. THE STATE
(2019)LCN/12665(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/E/44C/2018
RATIO
APPEAL: WHETHER THE APPEAL COURT CONSIDERS ONLY ISSUES RAISED BY THE TRIAL COURT
“An Appeal Court considers only issues heard by the trial Court or where leave had been obtained for the new issue to be raised on appeal. See OFORISHE V NIGERIAN GAS COMPANY LTD (2017) LPELR-42766(SC); C.G.G (NIG) LTD VS AMINU 2015 7NWLR PT 1459 PG 577; OSUDE VS AZODO (2017) 15 NWLR (PT 1588) 293; ILIYASU VS STATE (2014) 15 NWLR 245; SHURUMO VS STATE (2010) 16 NWLR (PT 1218) 65. Further the issues did not arise from the grounds of appeal. It is true that an issue of jurisdiction can be taken at any stage of the proceedings and could even be raised by the Court suo motu. But none of the issues properly had anything to do with the jurisdiction of the Court to entertain the appeal.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: METHODS OF PROVING EVIDENCE
“It is trite that the prosecution in a murder case must prove beyond reasonable doubt that (1) the deceased died; (2) that the death of the deceased resulted from the act of the appellant and (3) that the said act of the appellant was intentional. In discharging the burden on it, the prosecution has three methods or modes of proving its case: (1) by direct/eye witness evidence; (2) by circumstantial evidence; and (3) by confessional statement of the accused. See IGABELE V STATE (2006) 6 NWLR (PT.975) 100; HARUNA V A.G. FEDERATION(2012) LPELR-7821(SC); KAZA V THE STATE (2008) 7 NWLR (PT.1085) 125 AT 163; OLUDAMILOLA V THE STATE (2010) 181 LRCN 1 AT 16; MUSTAPHA MOHAMMED & ANOR V. THE STATE (2007) LRCN 110 AT 125; ADIO V. THE STATE (1986) 2 NWLR (PT.24) 581.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“Circumstantial evidence sufficient to support a conviction for murder must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused and no one else, is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. The circumstantial evidence must be evidence of surrounding circumstances, which by undesigned coincidence is capable of proving the fact in issue with the accuracy of mathematics.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
CHIKWADO AMAOGU Appellant(s)
AND
THE STATE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Anambra State Ihiala Judicial Division in Charge No. HIH/10C/2016 delivered on the 27th day of November 2017 Coram Nweze J convicting the appellant of Murder contrary to Section 274(1) of the Criminal Code Cap 36 Vol 11 of the Revised laws of Anambra State 1991.
The case of the prosecution is that the deceased ? a butcher and wife of PW1 was last seen on 5/1/2015 when she went to the market and did not return. Efforts were made to trace her but to no avail. On 9th January 2015, her decaying body was found in a bamboo bush with her motorcycle. Her facial and chest area were darker than the rest of the body and appeared to have suffered a chemical burn. The tongue was protruding. There was evidence of a big struggle at the scene where the body was found. Also found at the scene were her butcher’s knife, a nylon bag in which she usually puts away her money but no money was in it, her children’s clothes and her sales book. The deceased who ran a slaughter house with her husband makes between N300, 000 to N700, 000 daily. There was no evidence that the deceased deposited money in the bank on that day neither did she send the proceeds home. After questioning people, some arrests were made by the police. In the course of investigation, the police requested from MTN the call/log data of the deceased’s number as her phone was switched off and taken away.
The call data revealed that the Appellant was the last person that called the deceased shortly before the phone was switched off and had called her severally on that same day. Upon arrest and on being confronted with the MTN call log, the Appellant denied knowing the deceased and also denied ever calling her on the fateful date. On discovering the Appellant’s name and account details with 1st Bank in the diary of the deceased, the police further confronted the Appellant with the bank details and he denied ownership of same and stated that he has account with ECO Bank but did not provide the details. It was on record that the Appellant was a palm fruit harvester and does menial jobs for the deceased. Prior to the death of the deceased, the Appellant had money issues with the deceased, as a result of which the deceased slapped him and seized his Ecolac box. The Appellant thereafter ceased every communication with the deceased and her family. It was two weeks after the incident that the deceased was murdered. A Banker’s Order was obtained and the Bank details in respect of the First Bank account bore the picture, name and phone of the Appellant. It further revealed that the Appellant deposited N540, 000 (five Hundred and forty thousand) in the said account a day after the disappearance of the deceased. On being confronted with those facts, the Appellant denied having anything to do with the account.
He further admitted being the owner of the phone number but denied calling the deceased and that he never gave out his phone to anyone on 5/1/2015. Autopsy was performed and the doctor gave the cause of death to be strangulation with chemical burn. The Appellant was arraigned on a one count charge of Murder contrary to Section 274(1) of the Criminal Code Cap 36 Vol 11 of the Revised laws of Anambra State 1991. The Appellant pleaded not guilty to the charge. The prosecution called six (6) witnesses in proof of its case. The Appellant?s statements were admitted in evidence without objection.
The Appellant testified in his defense and called one witness. He now somersaulted from his extra judicial statements already exhibits before the Court and admitted that he knew the deceased and that he called her on the fateful day she died. He also admitted depositing the sum found in his account. He admitted he had money issue with the deceased which led to the seizure of his box. He stated that he is a palm fruit cutter and does all manner of menial jobs. He saves N700 daily. At the conclusion of evidence, the trial Court convicted and sentenced the Appellant to death.
Dissatisfied with the conviction and sentence, the Appellant appealed against the Judgment by a Notice of appeal containing two grounds of appeal. I am constrained to point out that the Notice and Grounds of appeal were poorly drafted. It contained arguments and references to decided cases which are matters for the Appellant?s brief of argument. The parties filed and exchanged briefs of argument. Out of the two grounds of appeal, the Appellant formulated a sole issue for determination as follows:
Whether the Prosecution could be said to have proved its case beyond reasonable doubt and as required by law in view of the lingering doubts in the Prosecution’s case at the lower Court.’
In its brief of argument the Respondent adopted the Appellant’s lone issue.
APPELLANT’S ARGUMENTS
Learned counsel for the Appellant in his brief started with what he referred to as ‘a Notice of Preliminary Objection to the competence of the information as constituted’. Counsel argued that the information upon which the Appellant was tried is incompetent and defective in that Charity Madukife (Mrs) Senior State Counsel D.P.P. Ihiala who signed the information did not affix to the information the NBA Stamp and Seal for lawyers/legal practitioners in the employ of the Anambra State Ministry of Justice Onitsha. Counsel further argued that there is no official indication that the said counsel is in the employ of the office of the Attorney General Ministry of Justice Onitsha Anambra State. Counsel cited various authorities. He went on to make submissions on Section 24 of the Legal Practitioners Act, the effect of a signature on a document without a name; need for a case to be initiated by due process and many other issues unconnected with the grounds of appeal and sole issue distilled from the grounds. He then urged the Court to uphold the ?preliminary objection? and to dismiss the information.
On the lone issue for determination, counsel submitted that from the evidence led by both the prosecution and the defence, it was clear that none of the three essential elements of murder was proved by the prosecution. Counsel submitted that the Appellant did not make a confessional statement and that there was no eye witness to the crime. He argued that the circumstantial evidence the trial Court based the conviction of the appellant on was neither here nor there particularly the statements of accounts. Citing the case of ORJI VS THE STATE (2008) 10 NWLR (PT. 1094) 31 @ 61 and other authorities, Counsel submitted that the law is settled that for circumstantial evidence to sustain a charge, the evidence must be incompatible with the innocence of the accused and also be incapable of any explanation other than the guilt of the accused. Counsel submitted that the learned trial judge erred in law when he convicted the appellant relying on Section 167 of the Evidence Act in the absence of any evidence connecting him to the alleged crime based on the testimonies of blood relations of the deceased and tainted witnesses like P.W.1, P.W.2 and P.W.3.
Counsel submitted citing numerous authorities that any doubt in the prosecution?s case must be resolved in favour of the accused. He opined citing BOZIN VS STATE (1985) 2 NWLR (PT. 8) 466 that there is no burden on the accused to prove his innocence. He submitted that prosecution witnesses P.W.1, P.W.2, P.W.3 and P.W.4?s testimonies in Court were inconsistent with their extra judicial statements and ought to have been rejected by the Court as unreliable. Counsel submitted that the judgment of the lower Court was perverse and contrary to the evidence apparent on the record. He urged the Court to resolve the sole issue in favour of the Appellant, to allow the appeal, set aside the conviction of the Appellant and to discharge and acquit him.
RESPONDENT’S ARGUMENTS:
On the preliminary objection raised by the Appellant, learned counsel for the Respondent submitted that the contention of Counsel is belated, frivolous and misconceived. He submitted that the issues raised were not part of the Judgment of the Lower Court as issues raised on appeal must emanate from the Judgment of Lower Court against which the appeal was lodged. He cited C.G.G (NIG) LTD VS AMINU 2015 7NWLR PT 1459 PG 577. Counsel further submitted that issues of fact or law not considered and pronounced on by the trial Court are fresh issues which can only be argued on appeal with prior leave granted by the Appeal Court. Counsel urged the Court to discountenance the issues. Counsel referred to Sections 273 and 274 of the Administration of Criminal Justice Law 2010 Anambra State and some decided authorities to submit that an Appellant who failed to raise an issue for the consideration of the trial judge, cannot suddenly raise the issue on appeal without the leave of the Court. Counsel submitted that the issues raised did not arise from the grounds of appeal and are incompetent. He urged the Court to strike out the issues.
On Appellant’s contention that the three essential elements of murder were not proved, learned counsel submitted that the prosecution adduced cogent and credible evidence in proof of the three essential elements of the offence charged through circumstantial evidence. He cited MOHAMMED VS STATE 2007 11 NWLR PT 1045 303, UDOR VS STATE 2011 11 NWLR PT 1259 PG 472. Counsel argued that proof beyond reasonable doubt does not mean proof beyond any iota of doubt and that once the proof drowns the presumption of innocence, the Court is entitled to convict even though there could still exist a shadow of doubt. He submitted that a reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it, a doubt which a reasonable man or woman might entertain. Counsel opined that it is not a fanciful or an imaginary doubt but a doubt as would cause prudent men to hesitate before acting.ILIYASU VS STATE (2014) 15 NWLR (PT 1430) 245.
Learned counsel set out the three elements of the offence of murder, examined the evidence led by the Prosecution and submitted that the prosecution proved beyond reasonable doubt each of the elements. Learned counsel submitted that although there were no eye witnesses to the murder and no confessional statement; that a Court can infer from circumstantial evidence that the death of a deceased person was caused by the act of an accused person. However for circumstantial evidence to support a conviction for culpable homicide punishable with death, it must lead only to one irresistible conclusion, that the accused and no one else murdered the deceased. Learned counsel after detailed examination of the evidence led submitted that that the Lower Court rightly relied on Section 167 of the Evidence Act in drawing the necessary inference that the appellant’s actions and behavior are consistent with the conclusion that he murdered the deceased and inconsistent with the inference that he did not. With regard to the evidence of the relations of the deceased, PW1, PW2 and PW3 counsel submitted that the Appellant misconceived the law in referring to them as tainted witnesses.
Counsel submitted that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. He opined that if a relative is the only eye witness for the murder of the deceased or the only witness who can adduce circumstantial evidence of the murder that it would be unjust to discharge and acquit an accused person on the ground that the only available evidence is from a relation. Relying on ULUEBEKA VS STATE (2011) 4 NWLR (PT 1237) 358 AND NKEBISI VS STATE (2010) 5 NWLR (PT 1188) 471 counsel submitted that the Court would have to examine the totality of the evidence to see whether the relations gave biased evidence in favour of the prosecution merely to ensure that the accused was convicted. Counsel submitted that a careful consideration of the evidence of PW1, PW2 and PW3 would clearly show that they were not in the least biased in the evidence they gave in Court. Counsel further submitted that the witnesses were not tainted witnesses as defined in the case of EZEUKO VS STATE (2016) 6 NWLR (PT 1509) 529.
Learned counsel while conceding that lies ordinarily would not lead to the conclusion that the accused is guilty as charged but that where the fact of lying is taken together with other relevant facts and circumstances of the particular case, the lies become relevant facts to the fact in issue and evidence on which conviction can be based. OKEREKE VS STATE (NO. 2) (2016) 4 NWLR (PT 1504) 109 AND OKEREKE VS STATE (NO 1) (PT 1504) 69.
Learned counsel set out the pieces of circumstantial evidence which the trial Court relied on in coming to the conclusion that the appellant is guilty of the murder of the deceased. He submitted that the Prosecution proved all the ingredients of the offence of murder beyond reasonable doubt and urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
RESOLUTION:
First, the preliminary objection to the competence of the information. It is quite strange that after judgment had been delivered in a criminal matter, Counsel in his appeal against the conviction of the Appellant for murder is raising objection to the competence of the information. His argument is that the information upon which the Appellant was tried was incompetent and defective in that Charity Madukife (Mrs) Senior State Counsel D.P.P. Ihiala who signed the information did not affix to the information the NBA Stamp and Seal for lawyers/legal practitioners in the employ of the Anambra State Ministry of Justice Onitsha. Counsel further argued that there is no official indication that the said counsel is a law officer in the office of the Attorney General Ministry of Justice Onitsha Anambra State. This objection, with respect is totally misconceived. Sections 273 and 274 of the Administration of Criminal Justice Law 2010 provide thus:
“273. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the defendant and not later.
274. No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the defendant or during the progress of the trial might have been amended by the Court because of:
a) Any alleged defect in substance or in form between any complaint, warrant or other process relating to the charge and the evidence adduced in respect of the charge …”
Even assuming the information was defective (which it is not) as long as it could have been amended if raised timeously when the charge was read to the defendant, and the objection was not taken then, it cannot subsequently constitute a ground for reversing the judgment of the Court. Apart from the above, objection was taken in respect of a long list of other issues spanning from pages 5 -22 of the Appellant?s brief of argument and listed as items 1 – 29 pages 6-7 of the Respondent’s brief of argument. The objections are so way out and so irrelevant that it is a waste of time setting them out here. Suffice it to state that none of the issues was canvassed at the trial Court. They were not the subject of any decision by the trial Court. It is trite that an issue which was not raised and determined by the trial Court cannot be raised as an issue for determination in an Appeal Court. An Appeal Court considers only issues heard by the trial Court or where leave had been obtained for the new issue to be raised on appeal. See OFORISHE V NIGERIAN GAS COMPANY LTD (2017) LPELR-42766(SC); C.G.G (NIG) LTD VS AMINU 2015 7NWLR PT 1459 PG 577; OSUDE VS AZODO (2017) 15 NWLR (PT 1588) 293; ILIYASU VS STATE (2014) 15 NWLR 245; SHURUMO VS STATE (2010) 16 NWLR (PT 1218) 65. Further the issues did not arise from the grounds of appeal. It is true that an issue of jurisdiction can be taken at any stage of the proceedings and could even be raised by the Court suo motu. But none of the issues properly had anything to do with the jurisdiction of the Court to entertain the appeal.
Usually a preliminary objection is raised by a Respondent in an appeal. It is out of the ordinary for an Appellant to raise a preliminary objection in his own appeal. Worse still; to raise a ‘preliminary objection to the charge or information’ which formed the basis of the judgment since delivered. The so called ‘preliminary objection’ and the contentions of the Appellant on the other issues are hereby discountenanced as frivolous and misconceived.
On the lone issue for determination, whether the Prosecution could be said to have proved its case beyond reasonable doubt, the presumption of innocence in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended places a very heavy burden on the prosecution not only to prove the guilt of the accused person but to prove it beyond reasonable doubt as provided for in Section 138(1) of the Evidence Act. OBUE V STATE (1976) LPELR-2195 (SC); ABIRIFON VS STATE (2013)9 SCM PG 1 @ 5. The burden rests throughout on the prosecution and does not shift.
It is trite that the prosecution in a murder case must prove beyond reasonable doubt that (1) the deceased died; (2) that the death of the deceased resulted from the act of the appellant and (3) that the said act of the appellant was intentional. In discharging the burden on it, the prosecution has three methods or modes of proving its case: (1) by direct/eye witness evidence; (2) by circumstantial evidence; and (3) by confessional statement of the accused. See IGABELE V STATE (2006) 6 NWLR (PT.975) 100; HARUNA V A.G. FEDERATION(2012) LPELR-7821(SC); KAZA V THE STATE (2008) 7 NWLR (PT.1085) 125 AT 163; OLUDAMILOLA V THE STATE (2010) 181 LRCN 1 AT 16; MUSTAPHA MOHAMMED & ANOR V. THE STATE (2007) LRCN 110 AT 125; ADIO V. THE STATE (1986) 2 NWLR (PT.24) 581.
Where there is no direct or eye witness evidence of the commission of a crime, the prosecution can fall back on circumstantial evidence which is unequivocal, positive and point directly and irresistibly to the accused as the guilty party. On the conditions to be satisfied for circumstantial evidence to ground a conviction for murder, AUGIE JSC had this to say in the case of SANI V STATE (2017) LPELR-43475(SC) PP16-19E-A:
“The two lower Courts acknowledged that there is no direct evidence that it was the Appellant, who inflicted the two deep stab wounds on the neck of the deceased, which caused the death of the deceased, and the law does not say that there must be eye-witness testimony or direct evidence to ground a conviction for the offence. The Law accords circumstantial evidence the same respect as direct evidence. Direct evidence establishes a fact without making any inference to connect the evidence to the fact. Thus, direct evidence proves or disproves a fact directly. Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is “a conclusion reached by considering other facts and deducing a logical consequence from them.”
See Black’s Law Dictionary, 9th Ed. Hence, circumstantial evidence does not point directly to a fact. An inference must be made that links the circumstantial evidence to the fact that the party using it, is trying to prove, which can make it a lot more powerful than direct evidence – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, where Nnamani, JSC, observed as follows- It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer.
The facts must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. See also Ukorah V. State (1977) NSCC (Vol. 17) 218. where this Court per Idigbe, JSC, pointed out the “direction” the Court must follow- The learned author of Wills on Circumstantial Evidence– makes reference to a direction of the Court (and to which, we think, we should draw attention, with approval) in the case of Emperor vs. Browning 39 I.C. 322, where it was stated. “In a case in which there is no direct evidence against the Prisoner but only the kind of evidence that is called circumstantial, you have a two-fold task, you must first make up your minds as to what portions of the circumstantial evidence have been established, and then when you have got that quite clear, you must ask yourselves, is this sufficient proof. It is not sufficient to say, “If the accused is not the murderer, I know of no one else who is.” There is some evidence against him, “and none against anyone else”. Therefore, I will find him guilty.” Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown, who have succeeded in wholly covering their track…”
I shall now consider the circumstantial evidence adduced by the prosecution to see whether the trial Court erred in convicting the Appellant of murder based on it. Through the call log of the deceased obtained from MTN, it was discovered that the deceased and the Appellant exchanged several calls on 5/01/15 the day the deceased went missing. In fact, those were the last voice calls on her phone before it was switched off. When confronted with the call log, the Appellant denied making any call to the deceased but agreed that he did not make his phone available to any other person. From the records in the credit book of the deceased, the account number of the Appellant in First Bank was discovered. On enquiry from the bank, it was discovered that the Appellant had on 6/01/15 the very next day after the deceased was murdered paid into the account the sum of N540, 000.00. When confronted with this discovery, the Appellant denied having an account in First Bank or paying in any money into the account. He claimed he has an account with Ecobank.
At the trial, the Appellant somersaulted completely from his statements to the Police and now stated that he knew the deceased and that she was like a mother to him. He admitted he had an account with First Bank into which the deceased sometimes pays money for the sundry errands he carries out for her. He denied telling the police that he did not have an account in First bank; that he only told them he did not remember the account number off head. He stated the various jobs he did in order to explain his ability to pay into his account such a huge sum of money. He admitted speaking with the deceased on phone on 5/1/15 and she told him to go to her house to deliver a message to her daughter Amarachi. At pages 214 – 217, the learned trial judge concluded as follows:
‘From the evidence led in this case, the deceased collected a lot of money from the market on the 5th of January, 2015. The defendant knows her very well and knew that she must have a lot of money on her at the close of the trading day. The defendant exchanged a lot of calls with the deceased on the day she went missing. The defendant stated that the deceased sent him a message for the daughter Amarachi on that day. He did not deliver the message. The defendant was the last person that spoke with the deceased before her phone went dead. The defendant knew that the deceased was missing by the evening of the 5th of January 2015. He went home and did not inform his mother that somebody that close to them was missing. On the next day, the defendant paid, in one day more money than all the money he ever deposited into his account before that date put together. Thereafter, the defendant took a trip to Akure and Abuja. He left after the corpse of the deceased was found. He returned after some arrests had been made and when it was clear that he was not a suspect.
After the arrest, the police confronted him with the call log of the deceased. In the face of it he denied having any dealings with the deceased. When he was confronted with his statement of account with the First Bank, he denied ownership of the account. He recanted in this Court after the prosecution had led evidence and closed its case.
It is true that the fact that a defendant told lies does not equate to guilt. People lie to cover their guilt. People also lie out of stupidity or to gain some advantage. In the instant case, what is the advantage the defendant gained by lying? He equally does not appear stupid. The systematic way his money was withdrawn, whilst he was in custody shows that he is a smart person. So why did the defendant lie? From the totality of the evidence led, it is to conceal his involvement in the death of the deceased. The fact that he lied to the police that he does not know the phone number of the deceased is not enough to affix him with guilt. Equally the fact that he paid money into his account on the 6th of January 2015 does not prove him guilty. The fact that he did not deliver the ‘message’ of the deceased to Amarachi on the 5th of January 2015 is equally not enough. Just like the fact that he fled to Akure and later on to Abuja after the corpse was discovered simpliciter is not enough. When, however, all those are added up together, the effect points to the guilt of the defendant. By Section 167 of the Evidence Act,
The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct..in relation to the facts of the particular case.
The common course of natural events and human conduct would make the defendant to tell the members of the deceased family and the police that he spoke several times with the deceased on the day she went missing. The common course of natural events and human conduct would make the defendant to conceal that fact, if he killed the deceased and took her money. The defendant would be expected to deny the ownership of the First Bank account if the money paid into it was taken from the deceased. The common course of natural events and human conduct would have compelled the defendant to inform his mother that the deceased was missing on the 5th of January, 2015. I am therefore persuaded on the facts of this case that the evidence led points to the facts that the defendant, whether alone or in company of others, killed the deceased and took her money on the 5th of January 2015. He paid part of this money into his First Bank account on the 6th of January, 2015.
Circumstantial evidence sufficient to support a conviction for murder must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused and no one else, is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. The circumstantial evidence must be evidence of surrounding circumstances, which by undesigned coincidence is capable of proving the fact in issue with the accuracy of mathematics. The question therefore is whether the evidence led in this case satisfies this very strict requirement. From the circumstances can it be said with all certainty that the Appellant and no one else murdered the deceased
Exhibit P14 the call log revealed that the appellant and the deceased exchanged phone calls on 4/1/15 by 11.34 am, 11.35 am; 12.12pm; 14.14 pm, 14.52 pm, 17.28 pm, 18.20 pm, 19.17 pm and 19.19 pm. The exchange of calls continued on 5/1/15 at 9.54 am, 12.42 pm, 12.43 pm, 12.46 pm, 15.59 pm, 16.03 pm, 17.28 pm, 17.34 pm, 17.35 pm and 17.38 pm. These numerous calls on the two days certainly raise some questions as to the nature of the relationship between the Appellant and the deceased. Were they lovers? PW3 Cynthia Ogechukwu Ngadiukwu, one of the daughters of the deceased under cross examination confirmed that when she was in secondary school, the Appellant brought her mother the deceased on his bike to the school to visit her and because he called her mother regularly, she asked her mother if she was having an affair with the Appellant. Her mother told her nothing was going on. Further PW2 another daughter of the deceased under cross examination at page 176 of the Record testified thus:
Q: Your evidence in this Court is inconsistent with your statement to the police.
A: That is true. The reason is that I was still undergoing the emotional breakdown I talked about. Secondly, I answered the questions put to me by the police and that is what was recorded.
Thirdly, my father was present at the time and I did not want to say certain things in his presence.
The point here is that there is the possibility that the Appellant lied about the phone calls out of fear of his relationship with the deceased being exposed. If indeed there was amorous relationship between the two, the deceased may have given the appellant the money he paid into his account. These are possibilities that deprive the circumstantial evidence of the necessary quality of precision and irresistible conclusion that the accused and no one else murdered the deceased. At page 207 of the Record, the learned trial judge observed:
‘Under cross examination, it turned out that P.W.1 accused several people of the murder of the deceased. Some of them were arrested and detained by the police. It was also revealed that PW1 has a second wife who had left him. Shortly after the death of the deceased PW1 went to bring the second wife back and they presently reside together. These facts are sufficient to raise the suspicion that PW1 may have arranged for the death of the deceased to enable him reunite with the second wife. Yes he had a perfect alibi as he was not in Anambra State on the day of the incident. Directing the police to the call log of the deceased and the account number of the defendant may be his way of implicating the person he paid to do the job for him. If that is true, then it is for the defendant to explain the involvement of PW1 in the murder. There was no attempt at that and it is not for this court to speculate on that aspect. I have only highlighted this aspect to show that the Court went out of its way to give the defendant all the benefit of the doubt.’
This is a criminal case. The burden rests throughout on the prosecution to prove the charge against the Appellant. The question of the Appellant explaining the involvement of PW1 in the murder cannot arise because the Appellant did not confess to the murder. If from the evidence led there seems a possibility no matter how slight that someone other than the Appellant may have done the deed, then the available circumstantial evidence cannot be said to lead to only one rational conclusion.
It seems to me that the police could have done a better job in its investigation of this crime. The evidence of the call log and the payment of the huge sum into the account of the appellant provided excellent launching pad from where further investigation should have been carried out to unravel what actually happened. The cross-examination of the Appellant left much to be desired. Questions should have been put to the Appellant as to the subject of the discussion in the many phone conversations with the deceased when he finally admitted to the phone calls. Questions should have been put to him as regards the message the deceased asked him to relay to her daughter Amarachi. No questions were put to him to explain his visits to Akure and Abuja. The learned trial judge was merely speculating when at page 217 of the Record he observed thus:
‘The PW2 and PW3 testified that their mother slapped the defendant a few weeks before her death. They appeared to believe that he may have killed their mother out of revenge. That type of theory made the Court to be very careful with the case of the prosecution. From the calls exchanged between the defendant and the deceased, it is clear to me that they were discussing an issue of mutual interest.
For the defendant to have lured the deceased to a lonely place where he killed her, the deceased must be looking for something important from him. If the case of the prosecution was that the deceased asked the defendant to deposit some money for her in the bank and was going to collect the teller from the defendant, it would have made more sense. Having said that, I am more than convinced that the money which the defendant paid into his account on the 6th of January 2015 was the money he got from the deceased. He got the money from her on the 5th of January 2015. I am equally persuaded that it was to ensure that the deceased do not ask for the money forever that made the defendant to kill her. I am equally persuaded that he planned to kill her on that day. That explained the sudden attack that made the deceased to run into a thicket. On the facts of the instant case, I am persuaded that the facts proved point irresistibly to the guilt of the defendant.’
With due respect, the views of the learned judge expressed above are speculative as no evidence was adduced in support of the conclusions. The circumstantial evidence adduced does not point irresistibly to the guilt of the Appellant. The reliance by the learned trial judge on Section 167 of the Evidence Act does not cure the anomaly. For example, the common course of natural events and human conduct would make the defendant conceal the fact that he spoke several times with the deceased on the day she went missing not only if he had killed her and made away with her money but also if he had an amorous relationship with her which he desired to keep secret. The prosecution left too many loop holes in this case. They could have done a better job. The circumstantial evidence adduced did not lead to only one rational conclusion.
In the case of OKEREKE V STATE (2016) LPELR-40012(SC) the Court observed that merely telling a lie by an accused person is not evidence of the commission of any offence let alone murder. But where the fact of lying is taken together with other relevant facts and circumstances in the particular case, it may safely be concluded that the accused is guilty of the offence charged. In that case, the lie becomes a relevant fact to the fact in issue as evidence against him. In Okereke?s case, the lie told by the accused that the injuries on the deceased was inflicted by robbers who also robbed them and inflicted injuries on them taken together with the dying declaration of the deceased led to the conclusion that the accused was guilty as charged. In the instant appeal apart from the retracted lies, the prosecution failed to establish any further circumstantial evidence showing such strong nexus between the activities of the Appellant and the death of the deceased as would enable the Court draw the inescapable and certain inference that the Appellant and no one else committed the offence charged. This appeal has merit. It is hereby allowed. The conviction of the Appellant for the murder of Mrs. Ngozi Ngadiukwu on 5/1/15 is hereby set aside. The Appellant is discharged and acquitted.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading while in draft, the Lead Judgment just delivered by my brother, CHINWE EUGENIA IYIZOBA JCA. I entirely agree with the lucid reasoning and concluusion reached therein to the resonating and gainful effects, that the instant Appeal has abundant and manifest merits. Additionally, that it should be allowed.
The conviction of the Appellant for the murder of Mrs. Ngozi Ngadiukwu on 5/1/15 is hereby aside. The Appellant is discharged and acquitted.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had privilege of reading the draft of the judgment just delivered herein by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I totally endorse the reasoning and conclusion therein.
While a Court could convict on circumstantial evidence, however such evidence must be convincing and compelling, irresistibly leading to no other conclusion than guilt of the criminal defendant. The quality of the adduced circumstantial evidence must permit the existence of any circumstances which could weaken such a conclusion otherwise the criminal defendant must be acquitted. See PHILIP OMOGODO VS THE STATE (1981) 5 SC 5 at 24, IGBOJI ABIEKE & ANOR VS THE STATE(1975) 9-11 SC 97 at 104, EDOBOR VS THE STATE (1975) 9-11 SC 69 at 75 and ADEPETU VS STATE (1998) LPELR-135(SC) at 38.
The evidence adduced at trial by the Respondent as prosecution was circumstantial but left open the possibility of the murder of the victim having been carried out by some other person other than the Appellant.
Examining the entire circumstances one cannot come away with the conclusion that the Appellant murdered the victim.
For more detailed reasoning in the lead judgment, I find merit in this appeal and I equally allow it. I also set aside the judgment of the trial Court inclusive of conviction and sentence of the Appellant.
Appearances:
J.R. Onwujekwe, Esq. with him, C.D.N. Ohuoha, Esq. For Appellant(s)
N. J. Nwankwo, Esq. (DDPP, Ministry of Justice Anambra State) with him, C.C. Madukife, Esq. (Chief State Counsel)For Respondent(s)
