OLUWATOYIN ABOKOKUYANRO v. THE STATE
(2011)LCN/4412(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of March, 2011
CA/AE/C.33/2010
RATIO
BURDEN OF PROOF/STANDARD OF PROOF: WHETHER WHERE AN ACCUSED IN HIS STATEMENT TO THE POLICE ADMITTED COMMITTING THE OFFENCE, THE PROSECUTION IS STILL DUTY BOUND TO PROVE ITS CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT
It is true as argued by the learned counsel to the Appellant that even where an accused in his statement to the police admitted committing the offence, the prosecution is still duty bound to prove its case against the accused beyond reasonable doubt, the burden never shifts, see S. 138 (1) (2) and (3) of the Evidence Act and the cases of IDEMUDIA V. STATE (SUPRA) AIGBAGBON V. STATE (SUPRA) and NWOSU V. STATE (supra). I would add that such evidence could be direct or circumstantial. PER CHIDI NWAOMA UWA, J.C.A.
LEAVE OF COURT: WHETHER LEAVE OF COURT MUST BE SOUGHT AND OBTAINED BEFORE A NEW ISSUE COULD BE RAISED ON APPEAL
The law is trite, that the leave of court must be sought and obtained before a new issue could be raised on appeal. I have perused the records of appeal, I do not seem to find where such leave was sought and obtained to canvass the fresh issue. See the old cases of PRATT V. HUFFNER (1959) SCNLR 189; (1959) 4 F.S.C. 82; ODESANYA V. EWEDEMI (1962) 2 SCNLR 23; 1962 1 ALL NLR 320; AYOOLA V. OGUNJIMI (1964) 1 ALL NLR 188 and JAFFAR V. LADIPO (1969) ALL NLR 165; DICKSON V. SGBP STATE (1974) 5 S.C. 21. It is the law that points and arguments not raised and canvassed before the trial court cannot be raised here on appeal without the leave of this court. In the case of KAIGAMA V. NAMNAI (1997) (PART 495) 3 NWLR PAGE 549 at 565,  His Lordship Edozie J.C.A. held regarding arguing fresh issues on appeal thus: “Leave must be specifically sought and obtained, for this purpose from the appellate court.” Similarly, in the case of AJUWON V. ADEOTI (1990) 2 NWLR (PART 132) 271, AJUWON V. ADEOTI (1990) 2 NWLR (PART 132) 271, the Apex Court, per Wali J.S.C. said: “As regards the new issue being introduced by the defendant for the first time in this court, no leave was sought to raise and argue them, nor did the defendants state in their brief that they intend to raise and argue such issue. The fact the leave was granted to the defendants to file grounds 6 do not automatically confer on them the authority to urge and argue the new issue. they must seek and obtain leave of the court to do that”. PER CHIDI NWAOMA UWA, J.C.A.
BURDEN OF PROOF:WHETHER THE BURDEN OF PROVING THE ALLEGATION OF THE OFFENCE OF MURDER BEYOND REASONABLE DOUBT AGAINST THE APPELLANT LIES IN THE PROSECUTION AND HOW THE BURDEN COULD BE DISCHARGED
The burden of proving the allegation of the offence of murder beyond reasonable doubt against the appellant lies in the prosecution, the burden of which could be discharged by adducing credible, cogent and compelling evidence to prove the elements of the offence charged. This requires the entire evidence, where the trial court would be left without doubt that the accused committed the offence, then the burden would have been discharged, see, BOLANLE V. STATE (2010) 4 WRN 26 AT 349. PER CHIDI NWAOMA UWA, J.C.A.
CIRCUMSTANTIAL EVIDENCE: INSTANCES WHERE THE COURT WILL CONVICT AN ACCUSED ON CIRCUMSTANCIAL EVIDENCE; WHETHER WHERE THE BODY OF THE DECEASED WAS NOT FOUND, THE ACCUSED COULD STILL BE CONVICTED FOR MURDER BASED ON THE INFERENCE OF CIRCUMSTANTIAL EVIDENCE
The law is trite concerning circumstantial evidence, that once the evidence is found to be positive, compelling and with mathematical precision points to the guilt of the accused, the prosecution would succeed in proof of its case as is the case here. All the surrounding circumstances must be examined together for a logical inference that the accused now appellant committed the offences, charged. The prosecution has proved that he did. In a recent decision of this court and division in a sister case, CA/IL/C5B/2009 OLANREWAJU AYAN V. THE STATE. delivered on 19th January, 2011(unreported) I said: “The learned trial court in my considered view was right to infer from the facts, proved the existence of other facts which logically tend to prove the guilt of the Appellant, see ADEPETU v. STATE (1998) 185 AT 207. In the above case his Lordship Ogundare JSC at P. 207 had this to say in this regard: “the law is clear on the point; where, as in the instant case, direct evidence of eye witness is not available, the court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person.” On utilizing circumstantial evidence to convict, for murder as did the trial court, in ADEPETU (supra) his Lordship Onu J.S.C at p.217 said: “The charge of murder is proved by circumstantial evidence notwithstanding that neither the body, nor any trace of the body of the deceased had been found, not even when the accused made no confession, he could albeit be convicted as render the commission of the crime with certainty and yet leave no ground for reasonable doubt.” It is the law that, even where the body of the deceased was not found, the accused could still be convicted for murder (where the accused did not confess to the crime) based on the inference of circumstantial evidence, see ONUFREJECZYK (1955) LQB 388, and UDEDIBIA V. STATE (1976) 11 SC 173 AT 138 – 139. PER CHIDI NWAOMA UWA, J.C.A.
EVIDENCE OF A SINGLE WITNESS:WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON THE EVIDENCE OF A SINGLE WITNESS
In the case of EMINE V. STATE (1991) 7 NWLR (PART 204) 480 AT 493, His Lordship Onu J.C.A (as he then was) held as follows: “It is trite law that a conviction for murder can stand on the evidence of a single witness. see section 178 of the Evidence Act and the case of ADELUMOLA V. THE STATE (1998) 1 NWLR (PART 730) 683 AT 691; ANTHONY IGBO V. THE STATE (1975) 1 ALL NLR (PART 68) 1 such a single witness must however be one that is credible and whose conduct does not give room for reasonable doubt.” Similarly, in OKORO V. STATE (1998) 14 NWLR (PART 584) 181 AT 216 it was held by his Lordship Wali, J.S.C. thus:- “No law says that an accused person cannot be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration.” PER CHIDI NWAOMA UWA, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: CIRCUMSTANCES WHERE THE APPELLATE WILL INTERFERE WITH THE FINDINGS OF THE LOWER COURT
This court will generally not interfere with the findings of the lower court unless the finding is perverse, not supported by evidence and has led to miscarriage of justice or any principle of law or procedure have not been followed or complied with. See the cases of ENANG V. ADU (1981) 11 – 12 SC, IGWE V. STATE (1982) 9 S.C. 174, OSAYEME V. STATE (1966) NMLR 388 and JIMOH MICHAEL V. STATE NCC3, PAGE 666; (2008) 5 – 6 SC (PART 11) PAGE 203. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
OLUWATOYIN ABOKOKUYANRO – Appellant(s)
AND
THE STATE – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant along with three other persons were charged before the Ekiti state High court sitting at Ikole-Ekiti on a three count charge, that is: conspiracy to commit the murder of one Mayowa Adeleye, murder of Mayowa Adeleye and the attempted murder of one Falade Ojo (pw2). The alleged incidents were said to have taken place on the 29th day of November, 1998.
On arraignment of the appellant with the other then three accused persons on the 11th day of July, 2001, the appellant pleaded “not guilty” with the other accused persons but before the trial commenced the then 1st accused, one Sunday Jegede was reported to have died in prison custody, the appellant herein then became the 1st accused before the trial Court.
The prosecution called six (6) witnesses while the appellant testified in his defence and called no witness.
The case for the prosecution was that the victim, Mayowa Adeleye, was sent by his mother (PW1) to the farm on the 29th day of November, 1998 to give food to his father. The food was said to have been delivered, he left his father to return home and was not seen thereafter. In the evening of the same day the parents of the victim raised an alarm when he did not return, thereafter a search began.
The prosecution witness (PW2) alleged that while searching for the victim, he came across the late Sunday Jegede at an uncompleted building. The PW2 alleged that when he insisted on searching the uncompleted building, Sunday Jegede called out the appellant and the other two accused persons (in the order in which they were charged before the Court), they were said to have filed out in the same order. It was the allegation of the PW2 that they attacked him, while the appellant brought out a sword which they wanted to use on him but he seized the sword and escaped with it to lodge a report before the traditional ruler.
On the part of the appellant, it was alleged that the prosecution gave conflicting testimony as to his arrest. While the PW2 alleged that he was arrested in the bush on the night of the 29th day of November, 1998, the PW3 alleged that he was arrested on the 30th day of November, 1998.
On the 30th day of November 1998 the headless body of a boy was discovered, covered with a piece of cloth, with similar material and design as the window blinds in Sunday Jegede’s house. Photographs of the covered body were taken. The appellant and the other accused persons were handed over to the police and were subsequently prosecuted.
At the conclusion of the trial, on the 25th day of October, 2006 the learned trial judge found the appellant guilty on all counts and sentenced him to death on counts 1, and 2 and to life imprisonment on count 3.
Dissatisfied with the decision, the Appellant originally filed his Notice of Appeal on the 9th day of November, 2006, with the leave of Court granted on 30tn day of April, 2009, in which the Amended Notice dated 11/3/09, filed on 13/3/09 was deemed as properly filed and served on that day. The Amended Notice of Appeal dated 12th April, 2010, was further amended on another application moved on 12th October, 2010 and was deemed fifed the same day.
The Further Amended Notice of Appeal contained five (5) grounds of appeal, from which three issues were formulated. These are:
“1. Whether the learned trial judge was right in holding that the prosecution proved its case against the appellant when, the identity of the deceased for whose death the appellant was charged was never established at the trial?
2. Whether the learned trial judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt?
3. Whether the contradiction in the evidence of the prosecution as to the date of the arrest of the appellant is not fatal to the prosecution’s case?”
The respondent on the other hand raised a sole issue for determination of this appeal thus:
“whether or not the prosecution proved the offence of attempted murder and murder against the appellant beyond reasonable doubt”?
In arguing the appeal, the learned counsel to the Appellant Olakunle Agbebi Esq., adopted and relied on his brief of argument dated and filed on 5th October, 2010, which was deemed as properly filed and served the same day.
In arguing his first issue, (distilled from grounds 1 and 5), it was submitted that by virtue of S. 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 the appellant is presumed innocent until proved guilty, and that the law places the burden of proving the suit of any accused person on the prosecution, reliance was placed on the cases of IDEMUDIA V. STATE (1999) 7 NWLR (PART 610) 202 AT 215 F-G; ESANGBEDO V. STATE (1989) 4 NWLR (PART 113) 57 and S.138(1),(2) and (3) of the Evidence Act which places the burden of proof of criminal charges beyond reasonable doubt on the prosecution, and also relied on the cases of NWOSU V. STATE (1998) 8 NWLR (PART 562) 433 AT 444 paragraph B. also AIGBAGBON V. STATE (2000) 7 NWLR (PART 666).
It was submitted by learned counsel that the prosecution in this case did not prove any of the offences of conspiracy, murder, or attempted murder against the Appellant beyond reasonable doubt or as required by law
It was the contention of learned counsel that, the evidence of the prosecution witnesses were full of inconsistencies which were neither explained by the prosecution nor did the trial Court enquire into same.
In respect of the murder charge, it was argued that the learned trial judge made a mistake of law and of fact when he held that the prosecution proved the case of murder against the Appellant when the headless body was never identified as being that of the alleged victim. Further, that where the corpus deticti is not discovered or where there is no autopsy carried out on the body of the deceased the prosecution must identify the deceased named in the charge as the person allegedly killed by the accused person. Reference was made to the cases of R. v. MOMODU LAOYE (1940) 6 WACA 6, and PRINCEWILL V. STATE (1994) 6 NWLR (PT.353) 703 AT 713 which learned counsel relied upon n support of his argument.
It was the argument of the learned counsel that nowhere in the record of Appeal was the identity of the victim established by admissible evidence of any of the prosecution witnesses including that of the PW1, the mother of the alleged victim. Also, that, the prosecution did not lead any credible or admissible evidence to prove that the headless body that was photographed, was that of the allegedly missing Mayowa Adeleye.
It was argued that the photographer, PW5 who photographed the alleged victim did not give evidence to the effect that he knew the victim prior: to the incident and was therefore not capable of giving any as to the identity of the headless body as being that of the victim. Further that there was no evidence given in view of identifying the alleged victim, for instance as to the clothes he wore, a particular body feature, a birth mark or some other form of identification and that the Court cannot presume and assume that because the body found was that of a child, it must be that of the missing child Mayowa Adeleye. It was submitted that the prosecution must through direct and positive evidence establish the identity of the corpus delicti.
It was the submission of learned counsel that the PW6, the investigating police officer, Sergeant Festus Adaramola who testified that the photographs admitted in the evidence were that of the headless body of Mayowa Adeleye, did not testify to the effect that he knew Mayowa Adeleye or that the body was identified to him by anyone, reliance was placed on the cases of KADA v. STATE (1991) 22 NSCC (Pt.11) 596, 616 and IBINA v. STATE (1989) 5 NWLR (PT.120) 238 at 251.
It was submitted that the prosecution failed to prove that the body found was that of the missing Mayowa Adeleye, reference was made to the evidence of the PW4 who learned counsel submitted did not given any direct evidence a to the identify of the headless body found.
It was the argument of learned counsel that Exhibits ‘D1’ to ‘D6’ and ‘E1’ to ‘E6’ were wrongly admitted and relied upon by the trial court, page 94 of the printed records of appeal. It was submitted that admitting the photographs was an infringement of the Appellant’s right to fair hearing as a party ought to know what case he is expected to meet at the trial. He cited and relied upon the case of ABACHA VS. STATE (2000) 11 NWLR (PART 779) 437. It was contended that admitting the photographs and negatives by the trial court amounted to an infringement of the Appellant’s rights. We were urged to find and hold that the photographs were wrongly admitted and ought not to have been relied upon in the court’s Judgment, also to hold that the prosecution at the trial failed to establish the identity of the deceased as that of Mayowa Adeleye whose death the Appellant was charged with causing. Further, that the trial Court erred in finding that the Appellant was guilty as charged.
On his second issue, (distilled from ground 1, 3, 4, and 5), in citing and relying on the case of NWAEZE V. STATE (1996) 2 NWLR (PART 428) 1 AT 11, learned counsel submitted that the appellant, in law is not required to prove his innocence but, it is the duty of the prosecution to prove his guilt. In the above case the ingredients for the proof of murder were given as follows:
(a) The deceased had died;
(b) The death of the deceased was caused by the accused, and
(c) The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It was the submission of learned counsel that the entirety of the evidence in the presence case is circumstantial and recounted the view of this court concerning such evidence in the case of KALU VS. STATE (1993) 3 NWLR (PART 297) 20 AT 32.  Further, that for the prosecution to succeed in a case of this nature, the evidence must point only in the direction of the Appellant’s guilt in a manner that obviates any other possibilities. It was the contention of the learned counsel that there was absolutely no evidence at all before the Trial Court which pointed to any act, positive and direct or circumstantial or indirect, by the Appellant which led to the death of the deceased.
It was also argued that the evidence before the trial Court was basically on suspicion, hearsay, contradictions and fabrications which have no place in proving the guilt of the Appellant. See, AJOSE VS. STATE (2000) 7 NWLR (PART 766) 302 and BOZIN V. STATE (1985) 8 NWLR (PART 8) 465.
The learned counsel then reviewed the evidence of the PW1, PW2, PW3 and PW4 as it relates to the Appellant and the offences of murder and attempted murder charges. It was argued that the PW1’s evidence did not point directly at the Appellant and that she did not identify, the headless body found. He also argued that the evidence of the PW2 was full of hearsay and contradictions which cannot lead to the inference that the Appellant was guilty of either murder or attempted murder.
The learned counsel challenged the evidence of the PW2 to the effect that the traditional ruler ordered a search of the farms and the nearby bush in the presence of the witness, also that there was no evidence led to show that the PW2 was amongst the search party that found the headless body. It was further argued that the PW2’s evidence in respect of his encounter in the bush with Sunday Jegede, the Appellant and others armed with a sword (machete) was mere fantasy, reliance was placed on the case of C & C CONSTRUCTION CO. LTD V. OKAH (2003) 18 NWLR (PART 851) P.79 AT 100. To buttress his argument, the learned counsel submitted that the sword which the PW2 claimed to have snatched and ran away with to the palace was not tendered by the prosecution and that no explanation was given for failure to tender the sword.
It was further submitted that the evidence of the PW3 concerning the appellant telling him that he helped some people pursue the boy into the bush is hearsay, inadmissible and ought not to have been relied upon by the trial court in arriving at its decision
It was submitted that PW4 who admitted being the first to see the headless body did not identify it but only made reference: to the deceased and the mother of the deceased in respect of the evidence of the PW5 and PW6. It was argued that it did not point to the Appellant as the killer or one of the killers.
It was submitted that the guilt of the Appellant was not specifically proved, in that the Appellant was found guilty by association that is, belonging to a cult or society which had one of its aims and objectives as murders. Learned counsel faulted the finding of the learned trial judge at page 103 lines 3 – 4 of the printed records to the effect that all those connected with him and Sunday Jegede, found in the bush were part of the business, the holding it was argued was perverse. Further, that where three persons are charged with the same offence, it must be proved that the murder was committed in the prosecution of a common purpose and a common intention, see AKPAN V. STATE (1994) 8 NWLR (PART 361) 226, cited and relied upon. It was argued that the prosecution having failed to proved that the Appellant was in the forest and was arrested there in the night of the 29th of November, 1998 and also failure to explain the contradictions in the evidence PW2 and PW3, it was failed to established any association from which the court may infer common purpose or common intention.
It was submitted that the strong and compelling piece of circumstantial evidence pointed at late Sunday Jegede and not the Appellant, that is, the arrest in the bush on the night of the 29th of November, 1998, the date the deceased was said to have disappeared, questionable circumstance of Sunday Jegede’s presence in the bush and the similarity in the material used to cover the headless body being of the same material as the window blind of Sunday Jegede.
It was submitted by learned counsel that the trial court’s utilization of the statement of the Appellant that Sunday Jegede told him about the “making” of a head was twisted out of context and wrongly used as confession of conspiracy, since there was nowhere in the records, it was shown that the Appellant agreed to the “making” of the head, also that it was not evidence of participation in the crime.
Learned counsel argued that the Appellant did not do any act towards the realization of “making” a head but was said to have disbelieved it and thought the statement was a joke by the late, Sunday Jegede towards achieving another goal.
It was emphasized by learned counsel that the PW2 and the late Sunday Jegede were caught fighting in the bush in the night of 29th of November, 1998 and that the Appellant’s arrest was on mere suspicion; see BOZIN V. STATE (supra)
It was; argued that the trial court was biased when it held that the appellant was guilty as charged, and erred in admitting exhibits ‘D1’ to ‘D6’ and ‘E1’ to ‘E6’ to arrive at the said decision. Also, that the trial court holding that what took place was a ritual killing as DW1 testified in court and the holding that the Appellant did not deny attacking the PW2 with a sword were in error, and an infringement of the Appellant’s right to natural justice. It was argued that no man should be a judge in his own cause and that it is contrary to S.138 of the Evidence Act in that the trial court by its holding was calling on the Appellant to prove his innocence. We were urged to resolve this issue in favour of the Appellant and hold that the trial court was in error to have held that the prosecution proved a case against the Appellant beyond reasonable doubt.
On his issue three, the learned counsel to the Appellant submitted that the contradiction in the prosecution’s case as to the date of arrest of the Appellant is fatal to the case of the prosecution especially the evidence adduced by PW2 and PW3. It was argued that the evidence of the PW3ithat the PW2 and Sunday Jegede were, the only people arrested in the forest in the night of 29th day of November, 1998 corroborates the evidence of the Appellant at the trial and in Exhibits ‘A/A1’ when he denied attacking the PW2 or being in the forest in the night of 29/11/98. Further, that apart from the PW2 that no other witness mentioned the Appellant as being in the forest that night of 29/11/98, while thePW3 and PW4 testified that the appellant was arrested on 30/11/98 and that the Appellant could not have been the killer or one of the killers since there was no evidence that he was in the bush. It was the contention of learned counsel once again under this issue that the compelling circumstantial evidence was against Sunday Jegede and did not point to the Appellant.
It was submitted while emphasizing on the date of arrest of the Appellant that, the date was contradictory which could not be explained by the prosecution, therefore none of the charges could be said to have been proved beyond reasonable doubt. It was argued that the conviction of the Appellant based on the contradictory evidence occasioned a grave miscarriage of Justice.
We were urged to hold that this contradiction and failure of the prosecution to explain the contradiction was fatal to the case of the prosecution. We were urged to resolve this issue in favour of the Appellant. Also, to hold that the prosecution having failed to prove any illegal association with the late Sunday Jegede for the execution of any illegal purpose, the prosecution must be held to have failed to prove the charge of conspiracy.
We were urged to set aside the conviction and sentences passed on the Appellant and instead enter a verdict of discharge and acquittal
In response, the learned counsel to the Respondent Bola Wale-Awe (Mrs) Director of Public Prosecutions (DPP) appearing with F. O. Awoniyi, in arguing the appeal adopted and relied on her brief of argument dated 15/11/10 filed on 23/11/10 in urging us to dismiss the appeal and affirm the conviction and sentence of the trial court. The learned DPP argued the respondent’s sole issue together on the offence of murder and attempted murder. It was submitted that the prosecution through credible evidence proved the guilt of the appellant. The evidence of the PW2 at pages 46 – 47 of the printed records was reviewed in respect of his encounter with the appellant and the three other accused persons.
Learned counsel to the respondent defined attempt and submitted that it is a mere preparation but substantial steps towards commission of the full offence which would have been committed but for the interruption, reliance was placed on the case of OZULOKE V. THE STATE 125 AT 125-126 and that in attempted murder cases, the intent to kill must be present or inferred from the evidence. It was argued that the evidence available in this case established the case of attempted murder against the Appellant, having beaten up the PW2 with the other accused persons, and having brought out the sword which the PW2 snatched and ran away. Further, that if the use of the sword had not been interrupted by PW2 it would have been used to kill him.
With the offence of murder, the learned counsel agreed that by virtue of Section 138 (1) of the Evidence Act, the prosecution has the burden of proving the allegation of the offence against the Appellant beyond reasonable doubt through cogent, credible and compelling evidence to prove the elements of the offence charged. Learned counsel cited and relied on the following cases: BOLANLE V. STATE (2010) 4 WRN 26 AT 34 LINES 40 – 45, DAVID OMOTOLA and OTHERS V. THE STATE (2009) 8 ACLR 29 AT 144, OGBA VS. THE STATE (1992) 2 NWLR (PART 222) 64) and STATE V. AIBANGBEE (1988) 3 NWLR (PART 84) 584.
The essential ingredients for the proof of murder, which must be proved to sustain a conviction, were once again given as enumerated in NWAEZE v. STATE (SUPRA)
Learned counsel gave the three ways in which the Appellant was charged with could be proved as:
a. By direct evidence
b. By circumstantial evidence
c. By confessional statement
The following cases were cited and relied upon in support, EMEKA vs. STATE (2002) 14 NWLR (PART 734) 666 AT 683 and ADIO VS. STATE (1986) 5 SC. 194 AT 219 – 220.
It was argued that the prosecution in this case utilized circumstantial evidence to prove its case against the appellant. The learned counsel reviewed the evidence of the PW2 (Ojo Falade) who he said was part of the search team on the order of the King, Oba Alaaye of Oke Ayedun on the discovery that the victim was missing, pages 46 – 47 of the printed records, that is in respect of the pW2,s encounter with the appellant and three other persons who were named as sunday Jegede (who called out the others from the bush) Adogbon and Ayan Olanrewaju. The PW2’s evidence was that it was the appellant who brought out a sword which the PW2 snatched and ran away to the Oba’s Palace. The evidence of the DW1 was also reviewed concerning the late Sunday Jegede telling him he was going to make a human head, Page 79 of the printed records. Also, the holding of the learned trial judge questioning what the appellant and the others could have been doing that night in the bush where the PW2 encountered them.
It was further submitted that where the evidence relied upon is circumstantial, for the conviction of an accused as in this case, all that is required is that such evidence must be found to be positive, compelling and with mathematical precision which points to the guilt of the accused person. Learned counsel cited and relied upon the case of also ARUMA VS STATE (19901 6 NWLR (PART 153) 1125. these cases gave the circumstances under which circumstantial evidence would ground a conviction in a murder trial.
It was finally submitted by learned counsel to the respondent that the appellant was with Sunday Jegede and others the night of 29th November, 1998 when the PW2 was accosted in the bush, the fact that the deceased’s body was found close to Sunday Jegede’s house covered with the cloth similar: to Sunday Jegede’s window blind and the appellant’s discussion with the late Sunday Jegede point irresistibly to nothing else than that the appellant with the other persons murdered Mayowa Adeleye and attempted to kill the PW2 (Falade Ojo) and more specifically that it was the appellant who brought out the sword in attempt to kill the PW2.
We were urged to uphold the decision of the trial court, affirm the conviction and sentence of the appellant.
The respondent’s sole issue is covered by the second issue raised by the Appellant but differently couched, I will adopt the issues as raised by the Appellant in determining this appeal and resolve same as argued.
The Appellant’s first issue reads:
“Whether the learned trial judge was right in holding that the prosecution proved its case against the Appellant when the identity of the deceased for whose death the Appellant was charged was never established at the trial?”
The above issue was distilled from grounds 1 and 5 of the Further Amended Notice of Appeal, particular (d) of ground 1 gave the details of the alleged error by the trial court and it is the summary of learned Appellant’s counsel’s argument. It reads:
“d. The prosecution did not lead any evidence whatsoever to prove the identity of the headless body neither was there any shred of evidence given that the headless body found was that of Mayowa Adeleye. Nobody gave evidence as to the identity of the headless body. This failure of the prosecution if fatal to their case and the learned trial judge ought to have so held.”
It is true as argued by the learned counsel to the Appellant that even where an accused in his statement to the police admitted committing the offence, the prosecution is still duty bound to prove its case against the accused beyond reasonable doubt, the burden never shifts, see S. 138 (1) (2) and (3) of the Evidence Act and the cases of IDEMUDIA V. STATE (SUPRA) AIGBAGBON V. STATE (SUPRA) and NWOSU V. STATE (supra). I would add that such evidence could be direct or circumstantial. It was argued that the learned trial judge made a mistake of law and of fact when he held that the prosecution proved its case of murder against the Appellant when the headless body was never identified as being that of the alleged victim, Mayowa Adeleye.
I have examined the records which include the grounds of appeal and the judgment of the trial court, this first issue with due respect to learned counsel, to my mind does not seem to feature or to have arisen for determination in the trial court which did not take any decision either way that would give rise to this issue on appeal. The learned trial judge did not make any finding concerning the identity of the headless body. It is a fresh issue. The law is trite, that the leave of court must be sought and obtained before a new issue could be raised on appeal. I have perused the records of appeal, I do not seem to find where such leave was sought and obtained to canvass the fresh issue. See the old cases of PRATT V. HUFFNER (1959) SCNLR 189; (1959) 4 F.S.C. 82; ODESANYA V. EWEDEMI (1962) 2 SCNLR 23; 1962 1 ALL NLR 320; AYOOLA V. OGUNJIMI (1964) 1 ALL NLR 188 and JAFFAR V. LADIPO (1969) ALL NLR 165; DICKSON V. SGBP STATE (1974) 5 S.C. 21. It is the law that points and arguments not raised and canvassed before the trial court cannot be raised here on appeal without the leave of this court. In the case of KAIGAMA V. NAMNAI (1997) (PART 495) 3 NWLR PAGE 549 at 565,  His Lordship Edozie J.C.A. held regarding arguing fresh issues on appeal thus:
“Leave must be specifically sought and obtained, for this purpose from the appellate court.”
Similarly, in the case of AJUWON V. ADEOTI (1990) 2 NWLR (PART 132) 271, AJUWON V. ADEOTI (1990) 2 NWLR (PART 132) 271, the Apex Court, per Wali J.S.C. said:
“As regards the new issue being introduced by the defendant for the first time in this court, no leave was sought to raise and argue them, nor did the defendants state in their brief that they intend to raise and argue such issue. The fact the leave was granted to the defendants to file grounds 6 do not automatically confer on them the authority to urge and argue the new issue. they must seek and obtain leave of the court to do that”.
The leave granted to the Appellant as applicant on 5/10/10 to further amend his Amended Notice of Appeal unfortunately did not include this issue on the non proof of the identify of the headless body that was recovered as that of the missing Mayowa Adeleye. Issue one was formulated from grounds 1 and 5 of the Further Amended Notice of Appeal, this issue has not been shown to attack any decision of the trial court as none was taken concerning the identity of the recovered headless body which learned counsel argued was not identified from the evidence before the trial court to be that of Mayowa Adeleye for which the Appellant was tried and convicted for murder. The resultant effect is that issue one formulated from grounds 1 and 5 is incompetent not having been based on the finding of the lower court. Therefore, grounds 1 and 5 are also incompetent and are hereby struck out, with issue one, all the argument in its support is hereby discountenanced.
The second issue was distilled from grounds 1, 3, 4, and 5 of the further Amended Notice of Appeal, which reads:
“Whether the learned trial judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt?”
Having found grounds 1 and 5 of the further Amended Notice of Appeal incompetent and having struck out same, in resolving this, second issue all the argument touching on these grounds will and is equally discountenanced. In resolving the second issue therefore, I would only be examining arguments proferred in respect of the surviving grounds 3 and 4.
As argued in the appellants brief of argument, the learned counsel to the appellant agreed that the entire evidence of the prosecution is circumstantial, at page 13 of his brief of argument, he listed the ingredients required to be proved by the prosecution in a murder charge, S.138 of the Evidence Act and S.36(5) of the Constitution of the Federation Republic of Nigeria, 1999.
The burden of proving the allegation of the offence of murder beyond reasonable doubt against the appellant lies in the prosecution, the burden of which could be discharged by adducing credible, cogent and compelling evidence to prove the elements of the offence charged. This requires the entire evidence, where the trial court would be left without doubt that the accused committed the offence, then the burden would have been discharged, see, BOLANLE V. STATE (2010) 4 WRN 26 AT 349.
The prosecution proved its case through circumstantial evidence, there was no eye witness to the incidents of 29/11/98. The evidence of the PW2 (Ojo Falade) who was part of the search team on the order of the Oba Alaaye of Oke Aiyedun on the report that Mayowa Adeleye was missing testified as follows: (at pages 48 – 49 of the records).
“The search party were ordered to search the farm as well as the nearby school. I was in the search part. ….
We were also asked to search uncompleted and unoccupied buildings. We later found Sunday Jegede, near a new house. The said Sunday Jegede then asked me what I was looking for in the new house. I then asked him if he had not heard what was happening in town… I told him that we were looking for one Mayowa Adeleye, the deceased. He further asked if it was the Oba who asked me to come there. I then replied that the whole town authorized us to search for the victim. He told me that I had no power to enter into the new building. The Sunday Jegede then told me that I could not leave that premises. There and then he called the present 1st accused, Abokokuyanro Oluwatoyin. The 1st accused then came out. Then another one called Adogbon then appeared and one Ayan Olarewaju. It was at that stage that the four of them surrounded me in the forest, surrounding the uncompleted building and they started beating me. It was at that stage that the present 1st accused brought a sword. I snatched the sword from him and then ran to Oba in town. The Oba then called the police and some people to follow me to where I was attacked by these four people. The police then apprehended the four of them and took them to the Oba.”
(Underlined mine for emphasis)
From the evidence of the PW2 before the trial court, the Appellant (1st accused) was one of the group of four people that the PW2 encountered in the bush, he was the one that brought out the sword which the PW2 snatched and ran away. It was argued that there was no proof that the appellant was one of those that murdered Mayowa Adeleye, the scene where the PW2 was attacked and where the deceased’s body was found covered with the window blind of Sunday Jegede were close, the sword with the Appellant, the lack explanation of the presence of the Appellant and the other three persons in the bush at night has not been explained. The body of the deceased when found in the bush had the head severed; such severance could only be caused by a sharp object like the sword. A body with the head severed cannot be expected to remain alive. The beheading obviously caused the death of the deceased. A medical report is not required in this case to ascertain the cause of death. The learned trial court was in my humble opinion right to hold that the inference that could be drawn from these facts is the guilt of the Appellant, that he was one of the killers of the deceased, Mayowa Adeleye.
The Appellant as DW1 at pages 81 – 82 of the records testified as follows”-
“It was Sunday Jegede who told me that he wanted to make human head…. I thought that Sunday Jegede was merely telling me how to make human skull because he wanted to extract money from me…. Sunday Jegede told me that he was going to make human skull after I had packed my rice. I heard it from him before the victim was murdered. I did not probe further about how he was going to build the head because he might think that I wanted to block his way of getting rich.
(Underlined mine,for emphasis).
The DW1 above gave account of what the late Sunday Jegede told him. Contrary to the argument of the learned counsel that the information of making a human skull the said Sunday Jegede told the Appellant about was hearsay, I am of the humble but, a different view that the information cannot be termed as hearsay, the Appellant heard it directly from Sunday Jegede, he was not told by any other person about making a human skull and I so hold.
Earlier, in Exhibits ‘A -, 41 ‘, the Appellant’s statement to the police he stated as follows:
“On 29/11/98 at about 5:30pm. When I was working on my rice, one Sunday Jegede came to meet me and secretly explained to me that he has something to tell me. I asked from him what is it? Sunday Jegede later told me that he is now building a human head that himself and one Tokyo are in that business. Sunday Jegede further explained that if they finished building the head and he opened it to somebody after a week or two that it will be as if the head has just been cut. On 30/11/98 when I later heard that Mayowa had been found and his head was beheaded my mind went to what Jegede told me on 29/11/98. This made me to have the believe that it was Sunday Jegede that beheaded Mayowa and this made him to be talking proverbially to me” (Underlining mine for emphasis)
The statement above shows that the Appellant knew about the building of the human head before Mayowa went missing and was in the company of the late Sunday Jegede armed with a sword the night of the incident when PW2 encountered them in the bush, the discussion on the building of the human head with Sunday, Jegede whose window blind of the same design as the material with which the headless body was covered in the bush close to where the Appellant and the other three persons were hiding, close to the house of Sunday Jegede, all these point irresistibly to nothing else, than that the appellant murdered or was one of those that murdered the deceased Mayowa Adeleye. The appellant’s presence was fixed at the scene and was one of those called out from their hiding by Sunday Jegede that night on sighting the PW2, and brought out his sword to attack the PW2. I am in total agreement with the learned trial judge that the presence of the Appellant and the others the night of the incident in the bush could not be explained and that it could only have been for evil and disagree with the learned counsel’s argument that such view was like asking the Appellant to prove his innocence.
The law is trite concerning circumstantial evidence, that once the evidence is found to be positive, compelling and with mathematical precision points to the guilt of the accused, the prosecution would succeed in proof of its case as is the case here. All the surrounding circumstances must be examined together for a logical inference that the accused now appellant committed the offences, charged. The prosecution has proved that he did.
In a recent decision of this court and division in a sister case, CA/IL/C5B/2009 OLANREWAJU AYAN V. THE STATE. delivered on 19th January, 2011(unreported) I said:
“The learned trial court in my considered view was right to infer from the facts, proved the existence of other facts which logically tend to prove the guilt of the Appellant, see ADEPETU v. STATE (1998) 185 AT 207. In the above case his Lordship Ogundare JSC at P. 207 had this to say in this regard:
“the law is clear on the point; where, as in the instant case, direct evidence of eye witness is not available, the court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person.”
On utilizing circumstantial evidence to convict, for murder as did the trial court, in ADEPETU (supra) his Lordship Onu J.S.C at p.217 said:
“The charge of murder is proved by circumstantial evidence notwithstanding that neither the body, nor any trace of the body of the deceased had been found, not even when the accused made no confession, he could albeit be convicted as render the commission of the crime with certainty and yet leave no ground for reasonable doubt.”
It is the law that, even where the body of the deceased was not found, the accused could still be convicted for murder (where the accused did not confess to the crime) based on the inference of circumstantial evidence, see ONUFREJECZYK (1955) LQB 388, and UDEDIBIA V. STATE (1976) 11 SC 173 AT 138 – 139. Therefore, the learned Appellant’s counsel’s argument that the learned trial judge ought not to have convicted the Appellant for the murder of Mayowa Adeleye when the head of the beheaded body was not recovered does not hold water. I hold that the learned trial judge properly convicted the appellant for the murder of Mayowa Adeleye, same having been proved through circumstantial evidence.
In agreement with the submissions of the learned counsel to the respondent that the evidence of the PW2 fixed the Appellant at the scene of the crime, he was one of the people called out of the bush by late Sunday Jegede in the night of 29/11/98. Contrary to the argument of the learned appellant’s counsel that the Appellant ought not to have been convicted for attempted murder based on the uncorroborated evidence of the PW2 alone, in the case of EMINE V. STATE (1991) 7 NWLR (PART 204) 480 AT 493, His Lordship Onu J.C.A (as he then was) held as follows:
“It is trite law that a conviction for murder can stand on the evidence of a single witness. see section 178 of the Evidence Act and the case of ADELUMOLA V. THE STATE (1998) 1 NWLR (PART 730) 683 AT 691; ANTHONY IGBO V. THE STATE (1975) 1 ALL NLR (PART 68) 1 such a single witness must however be one that is credible and whose conduct does not give room for reasonable doubt.”
Similarly, in OKORO V. STATE (1998) 14 NWLR (PART 584) 181 AT 216 it was held by his Lordship Wali, J.S.C. thus:-
“No law says that an accused person cannot be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration.”
It is therefore the law that the evidence of a single witness could sustain a conviction for murder talk less attempted murder. In this case there is nothing to create doubt in the evidence or conduct of the PW2 to warrant discountenancing his evidence as uncorroborated or doubtful.
On proof of the attempted murder of the PW2 by the appellant, I am of the humble view that the prosecution has proved same against the Appellant. The Appellant with the other accused persons beat up the PW2 in the bush and it was the appellant who brought out the sword and would have used same on PW2 had he not snatched it and ran away. The interruption of snatching the sword prevented the commission of the full offence, see OZULOKE V. STATE (Supra), the offence of attempted murder was established by the prosecution. The Learned counsel to the appellant had argued that the learned trial judge as a whole wrongly evaluated the evidence adduced at the trial court and arrived at a perverse decision thereby deprived the appellant of his right to fair hearing. This court will generally not interfere with the findings of the lower court unless the finding is perverse, not supported by evidence and has led to miscarriage of justice or any principle of law or procedure have not been followed or complied with. See the cases of ENANG V. ADU (1981) 11 – 12 SC, IGWE V. STATE (1982) 9 S.C. 174, OSAYEME V. STATE (1966) NMLR 388 and JIMOH MICHAEL V. STATE NCC3, PAGE 666; (2008) 5 – 6 SC (PART 11) PAGE 203. In this case nothing has warranted such interference.
On the third issue distilled from ground 2, the learned appellant’s counsel submitted that there were contradictions in the evidence of the prosecution witnesses, PW2 and PW3 regarding when the appellant was arrested. It was argued that the PW3 testified that the only people arrested in the forest in the night of 29th of November, 1998 were the PW2 and Sunday Jegede which was said to corroborate the evidence of the appellant and Exhibits ‘A/A1’ where he denied attacking the PW2 or being in the forest in the night of 29th November, 1998 as opposed to the evidence of the PW2 which learned counsel said was contradictory, hearsay and not confirmed by any other witness that the appellant was arrested in the night of 29/11/98.
It was the submission of counsel that the PW3 and PW4 gave 30th November, 1998 as the date the Appellant was arrested and the only inference that could be drawn from the evidence of the prosecution witnesses is that the Appellant could not have been part of the killers since there was no evidence that the Appellant was in the bush. But, I had earlier held in this judgment concerning the evidence of a sole witness that the trial court from the cited legal authorities was in order to have believed the evidence of the PW2 that the Appellant was one of those that he encountered in the bush on the night of 29/11/98, there is no reason why this court should hold otherwise.
Curiously, the learned counsel admitted Sunday Jegede’s involvement but, excluded the appellant who was said to have been with Sunday Jegede; near his house in the bush at night, on 29/11/98. Learned counsel also agreed that the incident took place in the night of 29/11/98. Would it have made a difference then when the appellant was arrested, in the night of 29/11/98 or the morning of 30/11/98, does it counter having been fixed at the scene the night of the incident and PW2’s encounter with him and others in the bush that fateful night? Does it exclude his participation as charged? It does not.
On this issue of contradictions in the evidence of the prosecution witnesses, particularly PW2, PW3 and PW4 concerning the date the appellant was arrested, it was argued that the PW2 gave evidence to the effect that the appellant was arrested on the night of 29th November, 1998 while the PW3 and PW4 gave evidence to the effect that the appellant was arrested on 30th November, 1998. It is the law that two or more pieces of evidence may seem to contradict one another or vary. Where the discrepancy or difference is minor, it does not destroy the credibility of the witnesses, it makes no difference, see AYO GABRIEL V. THE STATE (1989) 5 NWLR 457 AND UWAGBOE V. STATE NCC 3 PAGE 636. In the present case, the incidents took place on 29th November, 1998. The search for the victim was after his father returned from the farm without him, believing he had returned, home from the farm, then the alarm of his being missing was raised and the search began when PW1 confirmed he had not returned, it stretched into the night, when there was an attempt on the life of the PW2 while searching for the deceased the arrests could have been that night or early the next morning.
As I earlier stated in this judgment, the appellant had been fixed at the scene of the attempted murder and close to the spot the deceased’s body was found. Whether the appellant was arrested the night of the incident 29/11/98 or the next morning, 30/11/98 it would not make a difference and would not have excluded him from the scene and/or all the surrounding circumstances. In my humble view, the alleged discrepancy or contradiction as argued by the learned appellant’s counsel is immaterial. I am of the view that it is immaterial whether the appellant was arrested on 29/11/98 or 30/11/98, his presence having been fixed at the scene of crime by the PW2 the night of 29/11/98.
While arguing the third issue, the learned counsel had urged us to hold that the prosecution having failed to prove any illegal association with the late Sunday Jegede for the execution of any illegal purpose, the prosecution must be held to have failed to prove the charge of conspiracy. Even though the appellant was charged and convicted for conspiracy (count one) the learned trial judge did not pass against the conviction, it was not raised in the grounds of appeal and not covered by the issues for determination therefore, all the argument in respect of failure of the prosecution to prove any illegal association for the execution of any illegal purpose go to no issue and are hereby discountenanced.
In conclusion, having show that the appellant was amongst the four accused persons arrested the same day of the incident close to the scene of crime, having been one of the three persons called out by late Sunday Jegede from hiding, in the bush when PW2 encountered the appellant and the others, the appellant armed with the sword the headless body found close by where the appellant and the other accused persons were hiding, the similarity of the cloth that covered the body and those in the house of Sunday Jegede, all are a chain of events or situations that point to the inference that the appellant is guilty beyond reasonable doubt of the offences for which he was convicted and sentenced by the trial court. I see no reason to disturb same. See the decision of this court and division in the sister case in Appeal NO.CA/IL/C.5B/2009 OLANREWAJU AYAN V. THE STATE, delivered on 19th January, 2011 (supra)
I am of the considered and firm view that the prosecution has proved its case beyond reasonable doubt by circumstantial evidence which in this case points irresistibly to the appellant as having attempted or being one of those that attempted to murder the PW2 on the 29/11/98 and one of the persons that murdered the deceased Mayowa Adeleye. Through a plethora of legal authorities “beyond reasonable doubt” has been interpreted to be not beyond all shadow of doubt or beyond any iota of doubt. In the case of BAZIL AKALEZI V. STATE (1993) 2 NWLR (PART 273) PAGE 1, His Lordship Ogwuegbu JSC described proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt” is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALLER. 372, It was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only remote probability in his favour, which can be dismissed with the sentence; “of cause it is possible, but not in the least probable”, the case is proved beyond reasonable doubt”.
(Underlined mine for emphasis)
In this case, inferences against the appellant were strong enough to establish his guilt beyond reasonable doubt and support his conviction. The ingredients of the offences charged were established by the prosecution through circumstantial evidence considering all the surrounding circumstances.
In the prevailing circumstances, this Appeal is without merit and fails. I hereby dismiss it. The judgment of the learned trial judge, D. O. Jegede, J. of Ekiti State High Court, Ikole Ekiti delivered on 25th October, 2006 in suit NO.HCI/IC/2001 convicting and sentencing the Appellant to death for murder and life imprisonment for attempted murder is hereby affirmed.
UWANI M. ABBA AJI, J.C.A.: I was privileged to read in draft the judgment of my learned brother C. N. Uwa, J.C.A. just delivered. My learned brother has considered and satisfactorily resolved the issues for the determination of the appeal.
I agree with his reasoning and conclusion that the appeal is without merit and I adopt same as fine, I also dismissed the appeal.
The judgment of the lower court delivered on the 25th October, 2006 convicting and sentencing the Appellant to death for murder and life imprisonment is hereby affirmed.
Appearances
Olakunel Agbebi Esq. For Appellant
AND
Bola Wale-Awe (Mrs) Director of Public Prosecution (DPP) with F. O. Awoniyi For Respondent
