FREDRICK AKINTADE v. THE STATE
(2012)LCN/5577(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/B/144C3/2007
RATIO
EVIDENCE: BURDEN OF PROOF IN CRIMINAL CASES
The law is also settled on the burden and standard of proof in a criminal case. The burden and standard of proof in a criminal trial was reiterated quite recently, in the case of Stephen John & Anor. Vs. The State (2011) 18 NWLR (Pt.1278) 353 at 372, para G where the Supreme Court, per Aloma Mariam Mukhtar, JSC stated thus:
“The settled law is also that to ground a conviction of any offence in the land the prosecution must prove its case beyond reasonable doubt …”
Put bluntly, the prosecution has a burden or duty to prove all the ingredients of a criminal offence beyond reasonable doubt and any reasonable doubt should be resolved in favour of the accused. See Hassan V. The State (2001) 6 NWLR (Pt. 709) 286; Tanko V. The State (2008) 16 NWLR (Pt. 1114) 597; Omogodo V. The State (1981) 5 SC 5 and Owe V. Queen (1961) 2 SCNLR 354. PER MOORE A. A. ADUMEIN, J.C.A
EVIDENCE: WHETHER CIRCUMSTANTIAL EVIDENCE CAN GROUND A CONVICTION
The law is settled that circumstantial evidence may ground a conviction in a criminal trial. However, to justify a criminal conviction, circumstantial evidence must be cogent, complete, compelling and unequivocal. Such evidence must conclusively and irresistibly lead to only one direction, namely that the accused or prisoner and no one else committed the crime charged. See Ebenehi V. The State (2009) 6 NWLR (Pt. 1138) 431. PER MOORE A. A. ADUMEIN, 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
FREDRICK AKINTADE Appellant(s)
AND
THE STATE Respondent(s)
MOORE A. A. ADUMEIN, J.C.A (Delivering the Leading Judgment): The appellant was the 3rd accused in Charge No. AK/IC/1998 wherein Feyisayo Alatise and Aderemi Omotayo were the 1st and 2nd accused persons, respectively and they were arraigned in the High Court of Ondo State, Akure Judicial Division on the 29th day of July, 2003 accused of the offences of conspiracy and murder. The charge was tried and determined by Fagbe, J who delivered judgment on the 31st day of January, 2007. The appellant and his co-accused persons were found guilty, convicted and sentenced accordingly. The appellant was sentenced to 14 years imprisonment on the count of conspiracy and to death by hanging on the count of murder. He was dissatisfied with the judgment of the trial court and filed a notice of appeal, pursuant to an order of this court made on the 8th day of November 2010, containing the following grounds:
”GROUNDS OF APPEAL
A. 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 proved his guilt beyond reasonable doubt.
PARTICULARS OF ERRORS
a, Section 138 of the Evidence Act cap. E14, Laws of the Federation of Nigeria 2004 stipulates that burden of proving beyond reasonable doubt that any person is guilty of a crime rests on the one who asserts it i.e. on the prosecution. The duty of proving that a crime was committed and that the Appellant was a party of the crime rests on the prosecution;
b. The prosecution at the trial court did not adduce any evidence whatsoever of any direct act of the Appellant that caused the death of the deceased;
c. The Learned Trial Judge failed to consider the concurring evidence of PW3, the 1st Accused at the trial, the Appellant and the 3rd Accused at the trial that the deceased locked himself in the room and the police had to break in through the window to open the door to reach the deceased. This raised more than reasonable doubt as to how the deceased died and the prosecution did nothing to clear this doubt;
d. The Learned Trial Judge failed to properly evaluate the evidence particularly since the prosecution did not disprove the defence put up by the Appellant that the deceased committed suicide;
e. The learned Trial Judge wrongly relied solely on the evidence of PW1 (deceased person’s wife) and failed completely to consider the evidence of PW3 as to the position of the gun before the crime scene was entered into. PW3 testified in Court that the gun was beside the deceased. The Learned Trial found as a fact that there was evidence that no one entered the room before the police got there but failed to address the issue of the door being locked from the inside.
f. The Learned Trial Judge when he convicted the Appellant for the offences of conspiracy and murder when there was no proof of any direct or positive act or omission by the Appellant that led to the death of the deceased.
g. It is not the law that because the Appellant was one of the last people to see the deceased person he is guilty of murder.
h. The evidence of motive, no matter how compelling, relevant and admissible cannot take the place of proof (albeit by circumstantial evidence) of the direct and positive act or omission of the Appellant that caused the death of the deceased particularly in the light of the evidence available to the trial court in this case.
GROUND 2
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.
PARTICULARS OF ERROR
a. The testimony of PW1 and PW3 on the position of the gun which caused the death of the deceased contradicted sharply as PW1 said the gun was on the table while PW3 said the gun was beside the deceased ostensibly on the floor.
b. It is the duty of the prosecution to disprove the defence put forward by the Appellant (in this case that the deceased committed suicide) and in disproving thereof the position of the gun after the incident is material. The Learned Trial Judge was in error in taking the position as stated by PW1 without any explanation as to why he believed her evidence over that of PW3. The Learned Trial Judge wrongly relied on the statement of PW1 as to the position of the gun in reaching his decision.
c. If the Learned Trial Judge ought not to have believed the evidence of PW1 who would have been hysterical at that time and was likely looking for revenge over the evidence of the traditional ruler of the village who had nothing to gain or lose in the matter.
C. GROUND 3
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.
PARTICULARS OF ERROR
a. Section 138 of the evidence Act Cap. E14, Laws of the Federation of Nigeria 2004 stipulates that burden of proving beyond reasonable doubt that any person is guilty of a crime rests on the one who asserts it i.e, on the prosecution. The duty of proving that a crime was committed and that the Appellant was a party to the crime rests on the prosecution.
b. The Learned Trial Judge was in error when he held at Page 94 Line 18 – 22 of the Record of Appeal that “But the accused said the deceased committed suicide, The weapon with which he committed the suicide was found on top of a table in the house of the 1st accused where the corpse of the deceased was. This calls for an explanation by the accused moreso, when they claimed tht (sic) some other people witnessed the incident”.
c. By the above finding, the Learned Trial judge was calling upon the Appellant to prove his innocence despite the fact that the evidence of PW1 the gun being on the table contradicted the evidence PW3 that the gun was beside the deceased and nothing was done by the prosecution at the trial to explain the contradiction.
d. The facts for which the Learned Trial Judge called upon the Appellant to prove his innocence were not established as required by law before they could be held to have been proved.”
At the hearing of the appeal, learned counsel for the appellant adopted the appellant’s brief dated the 1st day of December, 2010 and filed on the 8th day of December, 2010 and his reply brief dated the 11th day of August, 2011 and filed on the 13th day of September, 2011. Learned counsel relied on both briefs and urged the Court to allow the appeal, set aside the conviction and sentence passed on the appellant and to discharge and acquit him. On the other hand, learned counsel for the respondent adopted and relied on the respondent’s brief dated the 6th day of July, 2011 but filed on the 7th day of July, 2011 and urged the court to dismiss the appeal, affirm the judgment of the trial court and to uphold the conviction and sentence of the appellant.
Briefs were filed and exchanged. The appellant distilled the following issues for determination: –
“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 THE EVIDENCE ADDUCED?
2. WHETHER THE DEFENCE PUT UP BY THE APPELLANT WAS CONSIDERED?”
The issues framed by the appellant were adopted by the respondent.
The issues were argued together by both parties.
I am mindful of the fact that the 1st and 2nd accused persons in Charge No. AK/IC/1998 – Feyisayo Alatise and Aderemi Omotayo each filed a separate appeal against the judgment of the lower court and each of the two appeals has been resolved against the respondent. Therefore, I will be very brief in this judgment.
The case of the prosecution, through the evidence of PW1 Mrs. Felicia Olatunde, the wife of the deceased one Joseph Olatunde, Mr. Feyisayo Alatise (the 1st accused in the trial court) had on 12/09/1996 and 19/09/1996 sought to see the deceased without success, On 20/09/1995, however, the deceased and his wife (PW1) and his children were at home when the wife of Feyisayo Alatise informed the deceased and PW1 that Mr. Feyisayo Alatise would like to see the deceased, PW1 accompanied the deceased to the house of Feyisayo Alatise where they met him – Feyisayo Alatise and “the other accused.” The evidence of PW1 spans pages 21 – 22 of the record. At page 21, lines 5 – 15, PW1 testified inter alia thus:
“On getting to the house of the 1st accused we met the other accused there. Then the Ist accused challenged my husband of crying out as to the Indian hemps in his farm. My husband told him that on seeing the Indian hemp he was afraid hence he cried out. At that time my little baby was crying and the 1st accused appealed to me to go and take care of the baby. I then took the baby away to take care of him. I was taking care of the child when all of a sudden I heard a gun shot. The gun shot came from the direction where the 1st accused persons were. Soon after, Joseph Olawole came to inform me that the deceased had been killed. I ran to the locus of crime and saw the 1st accused who rode his motor cycle towards the direction of the town, on getting to the scene I saw my husband who was already dead in the house of the 1st accused lying down. I also saw a gun on the top of a table.”
As it relates to the appellant, PW2 said in her evidence-in-chief that the appellant “is a friend of the 1st accused” and under cross-examination that:
“The Ist accused was among the people who killed my husband. I am certain that it was the accused persons who killed my husband.”
It should also be noted PW2 Funke Babatunde, daughter of the deceased, gave evidence under further cross-examination at page 23, lines 12 – 13 thus:
“The 2nd – 3rd accused were present when the 1st accused killed my father.’
The appellant testified in his defence as DW3 and his evidence is at pages 35 -36 of the record. He denied conspiring to kill the deceased and or killing him.
I have read the briefs of both parties to this appeal and the arguments canvassed therein by them. The ingredients of the offences of conspiracy and murder are well-known and since they have been ably stated in the sister appeals, earlier decided by the court, I do not find it necessary to state the ingredients of the two offences in this judgment.
The law is also settled on the burden and standard of proof in a criminal case. The burden and standard of proof in a criminal trial was reiterated quite recently, in the case of Stephen John & Anor. Vs. The State (2011) 18 NWLR (Pt.1278) 353 at 372, para G where the Supreme Court, per Aloma Mariam Mukhtar, JSC stated thus:
“The settled law is also that to ground a conviction of any offence in the land the prosecution must prove its case beyond reasonable doubt …”
Put bluntly, the prosecution has a burden or duty to prove all the ingredients of a criminal offence beyond reasonable doubt and any reasonable doubt should be resolved in favour of the accused. See Hassan V. The State (2001) 6 NWLR (Pt. 709) 286; Tanko V. The State (2008) 16 NWLR (Pt. 1114) 597; Omogodo V. The State (1981) 5 SC 5 and Owe V. Queen (1961) 2 SCNLR 354.
In this case, the pieces of evidence of PW1 and PW2, reproduced in this judgment constitute the only link between the appellant and the offences with which he was charged. The evidence of PW1, as it relates to the appellant, to say the least, is mere surface-scratching which cannot ground a conviction in a criminal trial. The evidence of PW1 and PW2, in relation to the appellant, is ex auditu since they were not present when the alleged murder of the deceased was committed such evidence is unsafe to be relied upon to justify conviction in a criminal case.
In convicting the appellant, and his co-accused, the learned trial judge held at page 95, lines 16 – 20 of the record as follows:
‘Above all the accused persons were the last people in whose company the deceased was before he died…
The totality of the evidence points to one and only one conclusion which is that it was the accused persons who killed the deceased on 20th day of September, 1996.”
As far as the appellant is concerned, there is no evidence to justify the foregoing finding and conclusion of the learned trial judge. Learned counsel for the respondent submitted that the trial court was right to have convicted the appellant on the circumstantial evidence before it. The law is settled that circumstantial evidence may ground a conviction in a criminal trial. However, to justify a criminal conviction, circumstantial evidence must be cogent, complete, compelling and unequivocal. Such evidence must conclusively and irresistibly lead to only one direction, namely that the accused or prisoner and no one else committed the crime charged. See Ebenehi V. The State (2009) 6 NWLR (Pt. 1138) 431.
In this case, from the evidence tendered by the prosecution, no legal circumstantial evidence is available to justify or warrant the conviction and sentence of the appellant for the murder of the deceased Joseph Olatunde or the offence of conspiracy to murder him.
From the facts of this case, as can be garnered from the proofs of evidence filed by the prosecution, the investigation by the Police into the case of alleged murder of Joseph Olatunde, to say obvious fact, was very shabby and shallow. For example, whereas there were allegations that many people were present when the deceased allegedly died, the Police could not obtain a statement from any of the eye-witnesses, including “the Ibo boy” mentioned at page 24 line 36 of the record by Chief Adebamiwa Akinkumi (PW3), the Baale of Udi Camp, Idanre, Ondo State. Even Joseph Olawole who went to inform PW1 of the killing of the deceased, as claimed by the respondent’s star witness PW1, was never interrogated by the Police nor called by the Prosecution as a witness.
In conclusion, I hold that this appeal has merit and it is hereby allowed. The judgment of the lower court convicting and sentencing the appellant for the offences of conspiracy and murder is hereby set aside.
The appellant is hereby, accordingly, discharged and acquitted.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read before now in draft, the judgment of my learned brother, MOORE A. A. ADUMEIN, JCA just delivered. His Lordship has fully addressed and ably resolved all the issues in contention in this appeal. I am in complete agreement with his reasoning and conclusion that the appeal is meritorious and should be allowed. 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.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, Adumein, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The prosecution failed to prove the guilt of the appellant beyond reasonable doubt. There was no evidence to substantiate the conspiracy charge and the circumstantial evidence relied on by the learned trial judge was not cogent and compelling but inconclusive, the prosecution having failed to lead evidence to disprove that the deceased committed suicide. I too allow the appeal and set aside the judgment of Fagbe J. of the High Court of Ondo sitting at Akure convicting the appellant Fredrick Akintade of the offences of conspiracy and murder. I abide by the consequential orders made in the lead judgment.
Appearances
OLAKUNLE AGBEBI, ESQ.For Appellant
AND
MRS. A.O. ADEYEMI-TUKI (DPP, Ministry of Justice, Ondo State) with TAIWO OLUBODUN, ESQ. (DDCL, Ministry of Justice, Ondo State) and ALABA OGUNYEMI, ESQ. (SLO, Ministry of Justice, Ondo State) for the respondent.For Respondent
