OLUWAFEMI v. STATE
(2020)LCN/15477(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/EK/31C/2020
RATIO
CRIMINAL PROCEEDING: EVIDENCE: FACTS TO CAST DOUBT ON CIRCUMSTANTIAL EVIDENCE
In trials for criminal cases, the prosecution commonly relies on circumstantial evidence. Defence lawyers typically respond with one of two strategies. The first is to cast doubt on the circumstantial proof itself. If the premise(s) are not proven, then the inference should not be drawn.
The second is to show that even if all the circumstantial facts are true, they lead to two or more reasonable conclusions. And at least one of them is consistent with the defendant being innocent. In other words, there is reasonable doubt as to whether the accused is guilty. In the instant case, being found with a severed head of a human being suggests that the person has some explanations to make. In Esseyin vs. State (2018) LPELR, the Supreme Court held that where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igabele v State (2004) 15 NWLR (pt 896) 314. The category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) NMLR 119; Ukorah v State(1977) 14 SC 167; Lori v State (1980) NSCC 269; Onah v State (1985) 3 NWLR (pt 12) 236; Ebenehi v State (2009) All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State (2001) 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385. The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State (2008) All FWLR (pt 421) 797, 818. Put simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State (2009) 7 NWLR (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42- 43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, Wills on Circumstantial Evidence (Seventh edition) 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
TOSIN OLUWAFEMI APPELANT(S)
And
THE STATE RESPONDENT(S)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): Initially in the proceeding leading to this appeal, an Information was filed against the Appellant and others at large on the 21st September, 2017 with three Count Charge of Conspiracy to Murder, Murder of one Joshua Ojo on or about the 14th February, 2017 contrary to Section 316 of Criminal Code, Cap C 16, Laws of Ekiti State of Nigeria, 2012, and, Unlawful Possession of Human Head, contrary to Section 329 of the Criminal Code, Cap. C16, Laws of Ekiti State of Nigeria, 2012. Then on the 26th March, 2018, another Information containing three similar Charges was filed against the Appellant and one Ogunleye Tajudeen. They were arraigned on a three Count Charge Information firstly Conspiracy contrary to Section 516 of the Criminal Code Law, Cap C 16, Laws of Ekiti, 2012 in that the Appellant, the said Ogunleye Tajudeen and others at large onto about the 14th February, 2017 at Ifaka-Ekiti within the jurisdiction of the Honourable Court, did conspire together to commit felony to wit: murder. Count II- Murder of one Joshua Ojo, contrary to Section 316 of the Criminal Code Law, Cap C16, Laws of Ekiti State, 2012 and Count III- Unlawful Possession of Human Head contrary to Section 329 of the Criminal Code Law, C16, Laws of Ekiti State, 2012. They and others at large on or about 14th February, 2017 at Esure-Ekiti within the jurisdiction of the Court were found in possession of human head. The matter went to trial and after testimonies of the parties’ respective witnesses, the trial Court on the whole found the 1st and 2nd accused persons guilty on the three Counts of conspiracy contrary to Section 516, murder contrary to Section 316 and unlawful possession of human head contrary to Section 329 all of the Criminal Code Law, Cap C 16, Laws of Ekiti State, 2012 and convicted them accordingly on all the three Counts. For their sentence, the trial Court sentenced the 1st and 2nd defendants for the offence of conspiracy contrary to Section 516 of the Criminal Code Law, Cap. 16, Laws of Ekiti State to 7 years imprisonment, each. On Count II, they were sentenced to death by hanging, and on Count III, they were sentenced to 5 years imprisonment.
The 1st accused was distraught at the judgment that he filed a Notice of Appeal predicated on five grounds of appeal on the 28th November, 2019. After the late compilation and transmission of the record of appeal which was eventually deemed as duly compiled and transmitted on 6/10/2020, the Appellant’s Brief of Argument previously filed on 17/3/2020, the Respondent’s Brief already filed on 30/6/2020 and the Appellant’s Reply Brief filed 12/8/2020 were respectively deemed as having been appropriately filed and served on the same 6/10/2020 the record was regularised.
The Appellant in his Brief settled by his learned Counsel, Olujoke Aliu (Mrs.) projected two issues for determination in this appeal thus:
“(a) Whether the Prosecution has proved the case of murder against the Appellant beyond reasonable doubt.
(b) Whether the trial Court acted within the ambit of the law when it relied on Exhibits D and E (confessional statement) of Ogunleye Tajudeen to convict the Appellant.”
The Respondent suggested a lone issue in the like manner:
“Whether or not the learned trial Judge was right in holding that the Prosecution established by evidence, a case of murder beyond reasonable doubt.” In presenting the arguments on behalf of the Appellant, his learned Counsel, Olujoke Aliu, (Mrs.), reference was made to Exhibits A and D portrayed at pages 45-46 and 47-48 of the record of appeal where the Appellant said that the head of the deceased was handed over to him by his brother. He contended that the trial, the Prosecution did not lead evidence to establish that the Appellant killed the deceased and PW1 only led evidence to show that he saw the Appellant in company of his brother who came to sell a human head to him, PW1. He further made reference to the evidence of PW2, Inspector Sukeiman Abiodiun of the Ido Divisional Police Station and stressed that PW2 never mentioned a line where the Appellant confessed that he committed the offence of murder. He equally highlighted the evidence of PW3, PW4, PW5 and that of the 2nd accused where he denied knowing the 1st accused.
Then on whether the Prosecution has proved the case of murder against the Appellant beyond reasonable doubt, he submitted that the Prosecution did not prove the case of murder against the Appellant and there was no circumstantial evidence let alone overwhelming evidence to convict the Appellant of murder and sentencing him to death by hanging. Counsel invoked the provisions of Section 36(5) of the 1999 Constitution as amended, Section 135 of the Evidence Act, 2011 and the case of Edoho vs. The State (2010) 14 NWLR Part 1214 page 651 at 678-679 emphasized that the burden of proof is always on the Prosecution to prove the offence committed beyond reasonable doubt. He stated that for an allegation of murder to succeed, the Prosecution must not prove the death of the deceased, but must also prove that the accused killed the deceased and that the killing was unlawful and intentional. He stated that all that was established was that the Appellant was fought with a bag containing human head, yet the Court convicted for murder when the Prosecution had not proved the offence of murder against the Appellant. He referred to page 119 of the record where the trial commented that the 2nd accused, Ogunleye Tajudeen narrated how the deceased was killed with the participation of one David Tosin and one Femi. He referred to the evidence of the 2nd accused person during his examination in chief that he did not know the Appellant. He further argued that in Exhibit E being the only statement of the co-accused that was admitted in evidence there was line in which he said that the Appellant participated in the killing of the deceased or knew where the deceased was buried. He made reference to the case of Ilomuanya vs. The State (2012) LPELR-7944 (CA) and submitted that the ingredients of the offence of murder must co-exist and where one of them is absent or remains unproven or tainted with reasonable doubt, the Prosecution would have failed to the case of murder against the accused. He said the ingredients of the offence murder were unproven against the Appellant as there was no evidence that the Appellant killed the deceased.
On issue No. 2 questioning the reliance of the trial Court on Exhibits D and E contained at pages 21 and 22 of the record, he contended that they should not have been done so. He reference Section 28 of the Evidence Act, 2011 and the Supreme Court case of Pavy vs. The State (2017) LPELR- 43629(CA) where a confessional statement was defined as an admission made by the accused stating or suggesting that he committed the offence with which he is charged. He stated that in Exhibit D, the Appellant only narrated how he came into possession of the bag which contained the head of the deceased. He said that his brother handed over the bag containing the head of the deceased at PW1’s house, how the Police came and how his brother ran off upon sighting the Police. He touched on other explanations of the Appellant in Exhibit D and contended that it cannot therefore be regarded as a confession to the offence of murder. He also referred to E where the 2nd accused alleged that the Appellant participated in the murder and then cited the case of Ajaegbo vs. State (2018) 11 NWLR Part 1631 page 484 at 505 and submitted that it is trite law that the confessional statement of an accused cannot be used against a co-accused unless it is adopted by the co-accused because where an accused person makes a confessional statement to the Police as to his participation or culpability in the crime charged, he is not confessing for his co-accused person. His confession is only evidence against him and not against the co-accused person. He further relied on Jubrin Ada Saidu vs. The State (2011) 6 N.C.C page 126 at 136 and submitted that where the life of an individual is involved, utmost compliance with the provisions of the law is very important. He therefore persuaded this Court to allow the appeal and quash the conviction of the Appellant.
Learned Counsel for the Respondent, Julius Ajibare, Esq., D.P.P., Ekiti State, reiterated the elements of the offence of murder the Prosecution has to prove to establish that indeed the crime of murder was committed. He relied on the cases ofOmonga vs. The State (2006) 14 NWLR Part 1000 page 532 at 551, Emeka vs. The State (2001) 14 NWLR Part 734 page 666 at 683, Adeoti vs. The State (2009) 8 ACLR 231 at 265-265, learned Counsel submitted that in proving the offence with which the Appellant was charged, the Prosecution has three methods through which the guilt of the Appellant could be established. It could be either by direct evidence of an eye witness, or by confessional statement or by circumstantial evidence. He said that the onus is on the Prosecution in a criminal trial to prove the case beyond reasonable doubt which does not mean proof beyond shadow of doubt. It is the law that if the evidence is so strong against a man as to leave only a remote possibility in favour of the Appellant which can be dismissed with the sentence ‘of course it is possible but in the least probable’, the case is proved reasonable doubt.
Learned Counsel called the attention of this Court to the evidence of PW1, PW2, PW3 and PW5 and Exhibit D which painted a clear picture of the Appellant in the killing of the deceased. He stated some portions of PW1’s evidence on how three men came looking for him in his house and told that they had a package for him as a native doctor which they later open and he saw that it was a human head. He outrightly declined the offer but with the benefit of hindsight, he decided to involve the Police. The Police later arrived his compound and saw the human head carried by the 1st defendant. One escaped. He argued that the above evidence was unchallenged. He referred to the trial Court’s observations reflected at page 123 of the record of appeal. On the contention of the Appellant’s Counsel that the Prosecution failed to establish the participation of the Appellant in the killing of the deceased, learned Counsel said that the Appellant was part of the conspiracy. He argued that in law, it is immaterial what each party carried out in the conspiracy. He cited the case of Omotola vs. The State (2009) 8 ACLR page 29 at 147 where it held that it is enough to prove that they participated in the crime. What each did in the furtherance of the commission of the crime is immaterial. He also referred to the case of Emenegor vs. The State (2010) 31 WRN page 66 at 102 in support. He then urged this Court to dismiss the appeal.
In the Appellant’s Reply, it was submitted that the Respondent’s argument that the evidence of PW1-3 and 5 showed the involvement of the Appellant in the killing of the deceased is grossly misconceived. He further responded that conviction for conspiracy does not necessarily lead to conviction for actual crime. He stressed that the conspiracy for which the Appellant was charged does not relate to murder, that Section 516 of the Criminal Code Cap 16 Laws of Ekiti State, 2012 deals with conspiracy to commit a felony and carries a sentence of 7 years imprisonment and the Appellant and his co-accused were sentenced accordingly. He argued that the Appellant was never charged with conspiracy to murder under Section 324 of the Criminal Code Cap 16 Laws of Ekiti State, 2012 and that carries a sentence 14 years imprisonment. Conspiracy to commit an offence is a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy relates. He said that in the case of Emenegor vs. The State cited by the Respondent, the case of Balogun vs. Police (1953) 20 NLR 148 where it was held that where both Counts of conspiracy and substantive offence are included in a Charge, the conspiracy does not merge with the substantive offence. Conspiracy has to be proved distinctly separately and if conspiracy was not proved then the lower Court ought to discharge and acquit the accused person. He further asked this Court to allow the appeal.
The main plank of the Appellant’s appeal is that none of the ingredients of the offence of murder was proved against him by the Prosecution and that the Prosecution must not only prove the death of the deceased. He was charged with conspiracy to commit a felony and the murder of one Ojo Joshua. As vigorously stated by the Appellant following an avalanche of legal authorities, the ingredients of the offence of murder are that the deceased died, that the accused killed the deceased and that the killing was intentional.
The first ingredient of the offence, that is, that the deceased died, posed no problems at all. The Appellant was caught with the freshly severed human head of the deceased, a child, a Primary 5 Pupil, one Joshua Ojo. There was no doubt the first ingredient was proved with the physical evidence of the deceased’s head in the Appellant’s possession.
The second ingredient is that there must be proof that it was the accused person who killed the deceased. The proof can be secured through a direct eye witness evidence, or confessional Statement of the accused pinning himself down to the scene of the crime or through an overwhelming circumstantial evidence. The facts of this case revealed that the Appellant accompanied his brother, one David Tosin to the house of PW1 with the freshly severed human head of the said Joshua Ojo who lived with PW3, one Bola Ogutoyinbo, who indeed registered him in his Primary School. She gathered from his School after his disappearance that one Okada man, Taju, i.e. the 2nd Respondent came to pick him from his School. He was never seen alive again, the next thing, PW3 was confronted with the excruciating pain of identifying the freshly severed human head of the said Joshua Ojo. There was no eye witness account of the offence of murder with which the Appellant was charged but being found with freshly severed head of the deceased spoke volume. That was phenomenal and an uncommon commodity, a freshly severed head of a child and he had the nerve to accompany his brother with such an unnatural wares. The decapitated head of that boy was found in his possession. For him to have had the spirit to withstand the presence of such shocking and nerve-wracking sight depicts nothing but his clear participation in the severance of that head. This Court does not need the aid of a soothsayer to reveal to it the involvement of the Appellant in the killing of the deceased. The deceased had been killed and he was found in possession of his decapitated head. This is called circumstantial evidence, which is proof of a fact or set of facts from which one could infer the fact in question. For example, that a suspect is seen running away from a murder scene with a weapon in hand is circumstantial evidence he committed the murder. This contrasts with direct evidence, which directly proves the fact in question. An eyewitness who testifies to seeing the suspect shoot the victim is direct evidence.
Both direct and circumstantial evidence are considered legitimate forms of proof in trial Courts. A person may be convicted of a crime based on circumstantial proof alone. And indeed, with the prevalence of mistaken identification and false testimony, inferential proof is often times thought to be even more reliable than direct proof.
In trials for criminal cases, the prosecution commonly relies on circumstantial evidence. Defence lawyers typically respond with one of two strategies. The first is to cast doubt on the circumstantial proof itself. If the premise(s) are not proven, then the inference should not be drawn.
The second is to show that even if all the circumstantial facts are true, they lead to two or more reasonable conclusions. And at least one of them is consistent with the defendant being innocent. In other words, there is reasonable doubt as to whether the accused is guilty. In the instant case, being found with a severed head of a human being suggests that the person has some explanations to make. In Esseyin vs. State (2018) LPELR, the Supreme Court held that where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igabele v State (2004) 15 NWLR (pt 896) 314. The category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) NMLR 119; Ukorah v State(1977) 14 SC 167; Lori v State (1980) NSCC 269; Onah v State (1985) 3 NWLR (pt 12) 236; Ebenehi v State (2009) All FWLR (pt 486) 1825, 1832-1833; Ijioffor v State (2001) 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v State (supra) 385. The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State (2008) All FWLR (pt 421) 797, 818. Put simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State (2009) 7 NWLR (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42- 43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, Wills on Circumstantial Evidence (Seventh edition) 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178.”
As I stated supra, in this instant case, the prosecution (respondent) relied heavily on circumstantial evidence to prove its case against the appellant at the trial Court since there was no eye witness to the murder of the deceased. In the case ofTaylor & 7 others Vs R 21 Cr App R 20 at page 21, Lord Lord Hewart, Lord Chief Justice of England described circumstantial evidence as follows: – “It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving on proposition with the accuracy of mathematics.” See also The State v. Ogbubunjo (2001) 1 SCNJ 102; Udoebere v. The State (2001) 6 SCNJ 70. Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; Uwe Ideghi Esai and Others vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in convicting an accused must also be incompatible with the innocence of the accused.” Per (Pp. 16-18, paras. E-A)
Also, in Sani vs. State (2017) LPELR-43475(SC) the Supreme Court, per Augie, JSC, held that:
“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 undersigned 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..”
The Appellant was caught red-handed with the severed head of the boy, Joshua Ojo, who went missing on the same 14/2/2017. He went with his brother to the house of PW 1. He was even the one who told PW 1 that they found the human head in Ado, on the ground. They all took permission from him to smoke weed. When the Police arrived the others escaped but the Appellant was restrained by PW 1. PW 1 said that the 1st defendant was holding the bag, he was the one who showed him what was in the bag and the 1st defendant was not surprised at all, on seeing the contents of the bag. The fact that the 2nd defendant denied knowing him is immaterial. The 2nd defendant was already fingered as the one who took the boy away from his School on that 14/2/2017. I also have no qualms about holding that the third ingredient of the offence of murder was proved by the Prosecution. Killing the deceased and decapitating him, and taking the same to PW1 for sale on that date manifests nothing but sheer wickedness and evil intentions to kill him for the sole purpose of selling his body part as a ware. He was intentionally murdered by the Appellant and his cohorts. The blood of the small innocent and angelic soul who needed help to go to school and was provided the opportunity by PW3 is yearning for justice. I find the circumstantial evidence of finding his severed head in the hands of the Appellant and his cohorts on that same day he disappeared very overwhelming and in that context, I hereby dismiss this appeal, and affirm the judgment of the lower Court delivered on the 28th October, 2019 convicting the Appellant and sentencing him to death.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother THERESA
NGOLIKA ORJI-ABADUA JCA. I agree with him that the appeal be dismissed. I also dismiss same.
Appeal dismissed.
Appearances:
Olujoke Aliu Esq., with him, S. A. Aina Esq. For Appellant(s)
Julius Ajibare Esq. (DPP) with him, A. E. Arogundade Esq. (CLO), K. S. Adeyemo Esq. (SLO). For Respondent(s)
