RAPHAEL IFIOK SUNDAY V. THE STATE
(2013)LCN/5853(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2013
CA/C/111C/2009
RATIO
“In Sumanya Issah Torri v. The National Park Service of Nigeria (2011) 5-7 (Pt.1) MJSC 153 Muhammed, JSC reasoned at page 168 thus: “…Where there is that kind of admission of guilt, this Court, in a plethora of cases held that the legal burden of proof no longer arises, and no burden of proof rests on the accuser, it having being discharged by the admission of the accused. See: the dictum of Karibi Whyte, JSC, in Dongtte v. Civil Service Commission, Plateau State & Ors. (2001) FWLR (Pt. 50) at p9.1677 – B; Adetunji v. The State (2001) 13 NWLR (Pt 730) 375. See further Akibu Hassan V. The State (2001) 7 NSCQR 107; Gozie V. The State (2003) NSXQR 754; Nwachukwu v. The State (2002) 11 NSCQR 663.” Per TUR, J.C.A.
“In most cases where conviction is secured without medical evidence the injury is traceable directly or inferentially to the accused, for instance where he inflicted matchet cuts on the deceased. See Akpan Isaiah Essien V. The State (1984) 3 SC 14 at 16 and Kato Dan Adamu vs. Kano Native Authority (1956) 1 FSC 25.” Per TUR, J.C.A.
“In Rabi Ismail V. The State supra Bode Rhodes-Vivour, JSC held at page 88 that: “Before a conviction for murder can be sustained on circumstantial evidence, such evidence must satisfy the following: “1. The circumstances from which an inference of guilt is relied on must be cogently and clearly established. 2. The circumstances must point towards the guilt of the accused person. 3. When all the circumstances are taken together, the only reasonable conclusion would be that it was the accused person who committed the crime and no one else. See Shehu v. State (2010) 2-3 SC (Pt.1) p.158; Mustapha Mohammed & Ors. V. The State (2007) 30 NSCQR page 964.” Per TUR, J.C.A.
“The doctrine of “Last Seen” was explained by the Supreme Court Moses Jua V. The State (2010) 2 MJSC 152 at page 185 per Ogbuagu, JSC in the following language: “Circumstantial evidence (which I will later deal with, may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See the case of Oladejo V. The State (1987) 3 NWLR (Pt 61) 419; (1987) 7 SCNJ 218. The position then, as firmly settled, is that if Mr. A. was last seen alive with or in company of Mr. B. and the next thing that happened, was the disappearance of Mr. A, the irresistible inference, is that Mr. A. was or had been killed by Mr. B. The onus will then be on Mr. B. to offer an explanation for the purpose of showing that he was not the one who killed Mr. A. See the case of Igho v. The State (1978) 3 SC 87; Gabriel V. The State (1989) 5 NWLR (Pt. 122) 457; (1989) 12 SCNJ 33 – per Belgore, JSC (as he then was).” At page 186 paragraph “G” to page 187 paragraphs “A-B” his Lordship concluded that: “I am aware that the Last Seen doctrine is a mere presumption which like all other presumptions is rebuttable. It means in effect however, that the law presumes that the person last seen with the deceased bears the full responsibility for his death if it turns out that the person last seen with him, is dead. See the cases of The State v. Ogere Uke & 2 Ors., (1981) 1 MSLR 107. The doctrine was well articulated in the cases of The State v. Godwin Nwakerendu & 3 Ors. (1973) 3 ECSLR (Pt II) 757. See also the cases of The State v. Kalu (1993) 7 SCNJ 113 at 124-125; and Adepetu v. The State (1998) 1 SCNJ 83 at 97 per Ogundare, JSC (of blessed memory). In other words, where as in the instant case, direct evidence of eye witnesses, is not available, the Court may infer from the facts proved, the existence of other facts that may legally tend to prove the guilt of the accused person or the Appellant.” Again in Rabi Ismail V. The State (2011) MJSC 28 Aloma M. Muktar, JSC (as then was) explained the doctrine at page 77 thus: “…In a case of culpable homicide, as in this present one where the doctrine of last seen has been applied, the law presumes that the last person seen with the deceased before his death was responsible for his death, and the accused is expected to provide an explanation of what happened.” Per TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
RAPHAEL IFIOK SUNDAY Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): On the 19th day of November, 2007 the High Court of Justice Akwa Ibom State of Nigeria holden at Uyo, presided over by Stephen Okon J., convicted and sentenced the appellant to death for murdering his late father Norbert Sunday contrary to Section 519(1) of the Criminal Code of Akwa Ibom State. Being aggrieved the appellant filed a Notice of Appeal against the decision on 26th day of November, 2007 on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence. On 10th December, 2009 learned counsel applied and leave was granted him on 26th April, 2010 to file three additional grounds. The additional grounds were deemed properly filed and served on the Respondent. On 4th July, 2010 the appellant further sought and was granted extension of time to file a brief of argument. Leave was granted on 19th October, 2010. On 29th February, 2012 time was on application, extended for the respondent to file a Brief of Argument. This prompted the appellant to apply on 11th April, 2012 for extension of time to file a Reply Brief out of time. The application was granted on 3rd May, 2012.
When the appeal came up for hearing on 5th December, 2012 the appellant and respondent’s briefs were all adopted. While learned Counsel to the appellant prayed that the appeal should be allowed, learned Counsel to the Respondent urged for its dismissal.
Before considering the issues for determination I shall set down the facts that led to the trial, conviction and sentence to death of the appellant.
The appellant is the eldest son of Norbert Sunday (deceased). He and his wife lived together with the deceased at No.81A Ikpa Road Uyo in Akwa Ibom State. The deceased had another son, namely, Innocent Norbert (deceased). The grand son of the deceased at the time of his death was Akpan Innocent who was still in the secondary school.
Etim Udoh (Pw1) lives at Afana Oku, Uyo. Edem Udofia Ibanga (Pw2) resides at No.81 Ikpa Road, Uyo. Madam Akon Hanson Udoh Ibanga alias “Mmaecce” is landlady of No.81B Ikpa Road, Uyo. She is the wife of the senior brother of the deceased according to the testimony of Pw1. Edem Udofia Ibanga (Pw2) testified that Norbert Sunday (deceased) visited him on 2nd April, 1996. On 3rd April, 1996 when he called at the appellant’s house at No.81A Ikpa Road, Uyo he could not trace the whereabouts of Norbert Sunday. Upon inquiry as to the whereabout of Norbert Sunday the appellant shouted and pushed him out of his compound. Pw2 explained what transpired between him and the appellant as follows:
“…I began to shout whether he had killed his father. The accused used to tell me that he would kill his father alleging that his father was wizard. He used to beat and stab his father. Sometimes his father would report to the police but he would not allow the police to prosecute him, fearing that if the accused was jailed he would on his return from the prison kill him. The accused did not tell me about the whereabouts of his father. Rather, he told me to look for him. Because of the shouts, the Pw1 came and asked me what happened. I told him the behaviour of the accused person. I told Etim Udoh I suspected that the accused person must have killed his father. The Pw1 told me that the accused person had told him that his father got lost. Pw1 said he asked the accused if he had reported to his family, he said no, and that he advised him to report to me. When the family assembled, the accused person told us that his father was missing. I told him his father was not lost, but that he the accused knows the whereabouts of the deceased. The accused suggested consulting an oracle. I said I had no money for the oracle. I told the gathering that the accused should be allowed to go and look for his father and report to us the following day. That suggestion was accepted. The following day we met and the accused said he looked everywhere without finding his father.”
See page 33 lines 22-23 and page 34 lines 1-15 of the printed record.
Nevertheless Pw2’s testimony continued thus:
“Pw1 was one of those who went to the village head. Pw1 told me after they had gone to the police station that the accused person told the police he suspected that his father was in the pit latrine. He had earlier made the same suggestion at the palace of the village head. The police went with the accused person to their compound. The accused showed the police the pit latrine. The latrine was broken and a corpse was found. The accused was asked to identify the corpse and he told the police it was the corpse of his father. The deceased was my half brother. I made a statement to the police in connection with this matter. When the accused person met with the family as aforesaid, he never told us it was Eette Ntebono who knew something about his father’s whereabouts when the police brought him before me, I asked him who killed and dumped the corpse of his father in the pit toilet. The accused person did not answer. It is not true as alleged by the accused person that I and other member of our family had threatened to kill the deceased in because the deceased killed the accused person’s junior brother. It is equally not true that the family told the accused person not to tell the police his father’s corpse was in the pit latrine. There was no land dispute between our family members and the deceased as alleged by the accused person. That’s all.”
See page 34 lines 24 to page 35 lines 1-15 of the printed record.
The implication of the evidence by Pw2 was that the corpse was found and retrieved in the pit latrine in the compound of the deceased where he lived with the appellant at No.81A Ikpa Road, Uyo. This is borne out in his testimony of 24th February, 2005 wherein he stated as follows:
“Pw2: Re-sworn on the Bible and states in Ibibio language.
The toilet in which the deceased was found is located in the compound of the deceased. The toilet in question was jointly owned by Chief Asuquo Udofia and the deceased. There are students living in the neigthbourhood but I don’t know if they ever demanded for the repairs of that toilet”
See page 36 lines 1-5 of the printed record.
By the 6th April, 1996 when the deceased could not be traced the appellant reported to Etim Udoh (Pw1) that he had not seen his father for the past five days. The family gave the appellant three days to search for the deceased. On the third day of the fruitless search the matter was reported to the family head (Pw2) and subsequently the village head Obong Akpan Essien Ekpe. The village head told the appellant to bring money so that a search party would be organized. The appellant said he had none. Pw1 testified as to what happened next:
“He then said he suspected that his father was in a pit toilet. The matter was reported to the police. Thereafter, the police brought the accused person. The accused person then took the police to the pit toilet of his senior brother. I was in that company. The person who dug the toilet was sought for and brought. I never knew there was a corpse therein. The person who dug the pit toilet opened it. At first, nothing was found. The police demanded for bamboo. When it was inserted into the pit toilet it was noticed that a corpse was there. When the slabs were removed it was found that the deceased was inside the pit, his head resting on the wall of the pie. The corpse was removed from the pit toilet. The accused person and I identified the corpse as that of the accused person’s father. A doctor was brought and the accused person identified the corpse. I also identified the corpse to the doctor. After the identification, the police went to the accused person’s house and saw a blood – soaked shirt belonging to the accused late father. Before now, the accused person had reported to me on two occasions that the father was a wizard and that he was going to kill him because he used the power of witchcraft to trouble him (accused person). The problem between the accused and his father was always mediated by the police. Other members of family knew about the problem between the accused person and his late father. Our family head, Edem Udofia Ibanga also knew about the problem. I had made a statement to the police in connection with this matter.”
See page 31 lines 15-23 to page 32 lines 1-9 of the printed record.
The import of Pw1’s evidence is that the corpse was recovered from the pit toilet of the appellant’s senior brother. This contrasts with the evidence of Pw2 that it was recovered in the pit toilet of the deceased at No.81A Ikpa Road, Uyo. Pw1 admitted that he was aware the deceased used to get drunk. That he used to warn him to desist from that conduct, being a school teacher. This contrasts with the testimony of Pw2 that he never knew the deceased to be a drunkard.
Meanwhile, on the 5th day of April, 1996 Madam Akon Hanson Udoh Ibanga alias “Mmaette” engaged the services of Edet Effiong Udoh (Pw4) to carry out repairs on her pit latrine at No.81B Ikpa Road, Uyo. She had complained to Pw4 that heavy rain had damaged the pit latrine hence the need for repairs. Pw4 did not see any corpse on 5th April, 1996 when repairing the pit latrine.
Sergeant Asuquo Essien (Pw3) of the state C.I.D, Iskot Akpan Abia, Uyo conducted investigation into the crime. Through him the extra-judicial statements of the appellant were tendered and marked as Exhibits “A” – (8th April, 1996); Exhibit “B” (12/4/1996) and Exhibit “C” (2108/1996).
The statements of Pw1 were put in and marked Exhibit “D” (07/04/1996) and Exhibit “E” (12/04/1996) respectively. The prosecution again tendered the statements of Pw2 marked Exhibit “F” (08/04/1996) and Exhibit “G” (16/04/1996) respectively. Pw3’s testimony as to where the corpse retrieved is in conflict with the evidence of Pw2. Pw3 testified as follows:
“At the scene of the incident in the house of the deceased, at No. 81, Ikpa Road, Uyo, I recovered a hand written note left by the deceased, which stated that if he died, it was the accused who killed him. I also visited a latrine pit at No.81B Ikpa Road, Uyo, which the accused suspected that his father could have been. The blood stained shirt was recovered from the bed of the deceased, by the IPO at “A” Division, who initially investigated the case. At the latrine pit, I discovered that part of it was broken. All necessary coroners’ forms were filled and submitted to a doctor.”
But the house of the deceased is not at No.81 Ikpa Road but at No.81A Ikpa Road, Uyo. No81 Ikpa Road, Uyo is the residence of Pw2. The IPO who initially investigated the crime and allegedly recovered the blood stained shirt of the deceased did not testify in the lower Court.
Pw3’s testimony continued thus:
On 20th April, 1996, the pit toilet was broken and dug and the deceased corpse was removed which the accused identified from the trouser he wore. The doctor performed postmortem on the corpse and submitted a report. The Pw1 also identified the corpse as the corpse of Norbert Sunday. At the end of my enquiries, the following facts were highlighted:
1. That the deceased went missing from his people on 2nd April, 1996.
2. That Pw2, Edem Udofia, went to the house of the deceased on 3rd April, 1996 to enquire from the accused the whereabouts of his father, the deceased. The accused was annoyed and asked the pw2 to leave their compound.
3. That there was an offensive odour around the neighbouring compounds of the deceased which attracted people to quarrel with the landlady of No.81B Ikpa Road, Uyo. The landlady is called Akon Hanson alias “Mmaette”. The landlady hired one Edet Effiong to effect the repairs of the broken latrine pit. After the men had effected the repairs, the accused person went to the house of Edet Effiong to enquire whether he had seen anything in the toilet while effecting the repairs. Edet Effiong replied in the negative.
4. The accused person also went to the family head, pw1, and told him that he suspected the corpse of the deceased to be in the pit latrine of Akon Hanson’s compound.
5. The Pw2 in turn took the accused to the village head. Investigation also revealed that the accused person was very hostile and brutal to the deceased accusing the deceased of being a wizard who caused his downfall. The room of the deceased was filled with faeces indicating that the deceased was not capable of moving out.
Based on those findings, the accused was arraigned before the Magistrates’ Court and charged with murder of the deceased. After the exhumation of the corpse, the accused made an additional statement on the 22nd April, 1994. This is the statement.”
See p.39 lines 16-23 and p.40 lines 1-17 of the printed record.
The additional statement of the appellant was admitted as Exhibit “H”. At the conclusion of the investigation Pw3 submitted a report of his findings admitted at the trial and marked Exhibit “J” of 15th April, 1996. During cross-examination Pw3 gave evidence as follows:
“Cross examination by Mr. Udom: I visited the residence of the deceased. There was toilet in the deceased’s premises.
Apart from the toilet the deceased’s body was recovered, there was toilet in his compound. The toilet the deceased was recovered was not under construction. The toilet in which the deceased was recovered was already in use. I saw the person who constructed the toilet. He was named Edet Effiong Udoh. He told me he was paid to repair the toilet of Mmaette. The said Edet Effiong Udoh had already completed the repairs before I visited the scene of crime. He effected the repairs to the toilet on 5th April, 1996, the little hole on the toilet was such that no human being could pass through. The deceased got missing from his people on 2nd April, 1996. It was a deep toilet…The toilet in which the deceased’s body was recovered does not belong to Chief Udofia. The accused person said he suspected his father to be in the toilet. The accused did not say he dumped the body of his father in that toilet. Witnesses testified that it was the accused who said he suspected that his father was in the toilet. I discovered a document in the deceased’s house that if he died it was the accused person that killed him. I showed the document to the accused. It was discovered in his presence. The document is in the file.”
See p.43 lines 1-24 to page 44 lines 1-2 of the printed record.
The appellant testified as Dw1. He denied that he was not responsible for the death of his father. The appellant admitted that when he realized that his father was missing he reported to pw1 who advised him to report to the family and subsequently the village head. The appellant admitted living in the same house with his late father at No.81A Ikpa Road, Uyo. That when he could not trace his father the family members said since he lived with the deceased he should know his whereabouts. The appellant explained during cross-examination that:
“When I reported the matter to my village head, he told the members of the family accused me of killing my father. I did not know if my father was dead as at that time. I told the village head that I suspected that my father was in the pit toilet. The matter was then reported to the police. I never had any disagreement with my father that took us to the family for settlement. When I was arrested by the police, I made a statement to the police. I told the police I suspected that my father fell into the pit toilet I took the police and show them the pit toilet. That pit toilet is in the compound of Asuquo Udofia. In my father’s compound, a pit toilet was under construction. There was nothing wrong with my father at the time he went missing. After seeing the pit toilet the police also saw the room my father lived. It is true feaces were seen in my father’s room. I did not see blood soaked shirt owned by my father. Exhibit “B” was not made by me. My brother, Innocent died when my father was still alive. I was not happy about his death. I never confronted my father over the death of my brother, Innocent. I was never taken to the ‘A’ Division Police, Uyo in connection with any other case. I never reported any case to the pw1 against my father Pw2 never settled any dispute between me and my father. I never fought with my father and I did not inflict a matchet cut on him. I did not know if the corpse of my father was inside the pit toilet. I told my family that I had information that my father was seen along Etuk and Akpaubong Street in Uyo. I went to those places but did not find him. I never accused my father of being a wizard.”
See page 52 lines 4-23 of the printed record.
Learned Counsel to the appellant formulated the following issues for determination:
“1. Whether the doctrine of “LAST SEEN” was correctly applied by the trial Court in coming to the conclusion that the appellant was the last person who saw the deceased alive and therefore responsible for the death. This issue is based on ground 1 of the additional grounds of appeal.
2. Whether in the circumstance of this case where direct eye witness as to cause of death was unavailable, the trial Court was right in dispensing with medical evidence and report as to the cause of death. (This issue is based on ground 2 of the additional grounds of appeal).
3. Whether there was enough circumstantial evidence which irresistibly linked the appellant to the death of the deceased as to warrant his conviction. (This issue is based on the original omnibus ground of appeal).”
Learned Counsel to the Respondent adopted the above three issues formulated by the appellant.
ARGUMENT: ISSUE ONE:
The appellant’s learned Counsel’s argument on issue one is that the learned trial Judge erred to have applied the doctrine of “Last Seen” to convict the appellant. That if there was any body to offer an explanation as to the cause of death of Norbert Sunday it was Edem Udofia Ibanga (Pw2) whom the deceased last visited on 2nd April, 1996 but not the appellant. That the authorities the learned trial judge relied upon to convict the appellant namely Igabele v. The State (2006) 139 IRGN 1931; Gabriel V. The State (1989) 12 SCNJ 33 and Igbo v. The State (1978) 3 SC 87 were wrongly applied to the facts of this case. That in all cases where the doctrine applied there was a nexus between the appellant and the deceased by the evidence of independent witnesses. Learned Counsel urged that issue one be resolved in favour of the appellant.
Learned Counsel to the Respondent contended that the learned trial Judge acted rightly to have applied the doctrine of “Last Seen” to the facts of this case. Counsel urged that issue one be resolved against the appellant.
REASONS:
The doctrine of “Last Seen” was explained by the Supreme Court Moses Jua V. The State (2010) 2 MJSC 152 at page 185 per Ogbuagu, JSC in the following language:
“Circumstantial evidence (which I will later deal with, may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See the case of Oladejo V. The State (1987) 3 NWLR (Pt 61) 419; (1987) 7 SCNJ 218. The position then, as firmly settled, is that if Mr. A. was last seen alive with or in company of Mr. B. and the next thing that happened, was the disappearance of Mr. A, the irresistible inference, is that Mr. A. was or had been killed by Mr. B. The onus will then be on Mr. B. to offer an explanation for the purpose of showing that he was not the one who killed Mr. A. See the case of Igho v. The State (1978) 3 SC 87; Gabriel V. The State (1989) 5 NWLR (Pt. 122) 457; (1989) 12 SCNJ 33 – per Belgore, JSC (as he then was).”
At page 186 paragraph “G” to page 187 paragraphs “A-B” his Lordship concluded that:
“I am aware that the Last Seen doctrine is a mere presumption which like all other presumptions is rebuttable. It means in effect however, that the law presumes that the person last seen with the deceased bears the full responsibility for his death if it turns out that the person last seen with him, is dead. See the cases of The State v. Ogere Uke & 2 Ors., (1981) 1 MSLR 107. The doctrine was well articulated in the cases of The State v. Godwin Nwakerendu & 3 Ors. (1973) 3 ECSLR (Pt II) 757. See also the cases of The State v. Kalu (1993) 7 SCNJ 113 at 124-125; and Adepetu v. The State (1998) 1 SCNJ 83 at 97 per Ogundare, JSC (of blessed memory). In other words, where as in the instant case, direct evidence of eye witnesses, is not available, the Court may infer from the facts proved, the existence of other facts that may legally tend to prove the guilt of the accused person or the Appellant.”
Again in Rabi Ismail V. The State (2011) MJSC 28 Aloma M. Muktar, JSC (as then was) explained the doctrine at page 77 thus:
“…In a case of culpable homicide, as in this present one where the doctrine of last seen has been applied, the law presumes that the last person seen with the deceased before his death was responsible for his death, and the accused is expected to provide an explanation of what happened.”
Edem Udofia Ibanga (Pw2) admitted that the deceased visited him on 2nd April, 1996 at No.81 Ikpa Road, Uyo whereas the appellant and the deceased lived at No.81A Ikpa Road, Uyo. Pw2 was the last person to have seen the deceased on 2nd April, 1996. Thereafter his corpse was fished out of a pit on 20th April, 1996. Had the learned trial Judge adverted his mind to this uncontested facts he would not have relied on the doctrine of “Last Seen” to hold at page 52 lines 26-31 of the printed record that:
“I believe that the accused person who was the person last seen with the deceased failed to explain how the deceased met his death. In the absence of that explanation, I hold that it was the accused person who killed the deceased and took advantage of their neighbour’s broken pit toilet to dump his corpse therein. Consequently, I hold that the prosecution has proved its case against the accused person. I therefore find the accused person guilty as charged and I convicted him accordingly.”
The above holding is not supported by the evidence on record. Another person who could have explained the whereabouts of the deceased between 2nd April, 1996 to 20th April, 1996 was Akon Hanson Udo Ibanga alias “Mmaeate” the landlady of No.81 B Ikpa Road, Uyo from whose toilet the corpse was recovered.
Where the findings of fact by the learned trial Judge did not emanate from the evidence adduced at the trial, an Appeal Court may interfere by setting them aside. See Q v. Isa (1961) 1 All NLR (Pt.4) 668. I am of the candid opinion that the doctrine of “Last Seen” was wrongly applied by the learned trial Judge in this given circumstances. I resolve issue one in favour of the appellant.
ARGUMENT: ISSUE TWO:
Learned Counsel’s submission on issue two was that in the absence of direct eye witness to the murder, medical evidence was indispensable. That the medical doctor who performed the autopsy was not called to testify; neither was the report tendered hence the cause of death was not proved beyond reasonable doubt. Learned Counsel urged that issue two be resolved in favour of the appellant.
Learned Counsel to the Respondent however submitted that the failure to call the Medical Doctor to testify or tender the autopsy report at the trial was not fatal to the prosecution’s case. Counsel urged that issue two be resolved against the appellant.
REASONS:
The prosecution did not call any witness to testify that the appellant was seen killing or dumping the deceased into the pit latrine at No.81B Ikpa Road, Uyo. The medical doctor who performed the postmortem was not called to testify as to the cause of death, or the nature and severity of bodily injury, if ever sustained. But the fact is that the deceased was retrieved in a pit latrine on 20th April, 1996, the head resting on the wall according to the evidence of Etim Udoh (Pw1). The natural questions to ask are: Who killed or dumped the deceased in the pit latrine at No.81B Ikpa Road, Uyo whose landlady is Akon Hanson Udoh Ibanga alias “Mmaette”? Was he killed before his corpse was dumped into the pit latrine? When was his body dumped into the pit? Definitely it could not have been before 2nd April, 1996 when the deceased visited Pw2 at No.81 Ikpa Road, Uyo. Without answering these questions his Lordship held at page 79 lines 5-15 of the printed record as follows:
“For the meantime, I wish to comment on the non-calling of the Medical doctor who performed the postmortem examination of the corpse which was identified by both the accused person and the pw1. Learned defence Counsel submitted that he was a vital witness and ought to have been called by the prosecution to testify.
I wish to say that Medical evidence to establish the cause of death in a murder case is desirable but not always necessary. It is not essential provided that there are facts which sufficiently show the cause of death to the satisfaction of the Court. See the cases of Losi v. The State (1980) 8-11 SC 81; Enewoh V. The State (1990) 4 NWLR Pt. 482; and Offorlete v. The State (2000) 80 LRCN 2670. The question then arises are there sufficient facts to show the cause of death in the instant case? The answer would be given in the course of this judgment.”
It is not necessary to tender medical report if the maker appears as a witness at the trial. See Adekunle v. The State (1989) 12 SCNJ 182 at 192. In Frank Onyenankeya V. The State (1964) NMLR 34 the Supreme Court held at page 56 per Taylor, JSC that:
“It is good law that medical evidence is not always essential though desirable to prove the cause of death, but the evidence must in any case be such as to how that the death of the deceased was caused by the act of the appellant …In this respect the case of Rex vs. William Oledima (1) at pp. 202 is pertinent. There the West African Court of Appeal held that:
“Now to establish a charge of murder of manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did.”
The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution…”
In Ofoke Alo Ibo V. The State (1971) 1 NMLR 245 the deceased owed the appellant some money which he would not pay. On 22nd March, 1996 they met on a lonely path and an altercation ensued. The appellant inflicted matchet cuts on the left side of the deceased’s chest. The deceased died in hospital five days thereafter. There was no eye witness to the killing. The learned trial Judge relied on the confessional statement of the appellant in the absence of medical evidence to convict. In allowing the appeal the Supreme Court held at page 247 that:
“Whilst it may be perfectly proper to infer from all the circumstances that the death of the deceased was caused by the act of the accused without hearing medical evidence (See Adamu vs. Kano Native Authority (1) there was here not only, as the learned trial Judge said, no medical evidence, but in our view no evidence at all as to the nature or severity of the injury of the deceased… we think therefore that the learned trial Judge was wrong to infer from the circumstantial evidence that it was proved that the act of the accused caused the death of the deceased.”
None of the extra-judicial statements of the appellant (Exhibits “A”, “B”, “C”, and “H”) constitutes a confessional statement in the eyes of the law. The appellant never confessed to the commission of the crime which he was charged. There is no inference from the extra-judicial statements nor the oral testimony in court that the appellant committed the offence charged. Section 28 of the Evidence Act, 2011 reads thus:
28. A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
In Sumanya Issah Torri v. The National Park Service of Nigeria (2011) 5-7 (Pt.1) MJSC 153 Muhammed, JSC reasoned at page 168 thus:
“…Where there is that kind of admission of guilt, this Court, in a plethora of cases held that the legal burden of proof no longer arises, and no burden of proof rests on the accuser, it having being discharged by the admission of the accused. See: the dictum of Karibi Whyte, JSC, in Dongtte v. Civil Service Commission, Plateau State & Ors. (2001) FWLR (Pt. 50) at p9.1677 – B; Adetunji v. The State (2001) 13 NWLR (Pt 730) 375. See further Akibu Hassan V. The State (2001) 7 NSCQR 107; Gozie V. The State (2003) NSXQR 754; Nwachukwu v. The State (2002) 11 NSCQR 663.”
The learned trial Judge relied on Lori v. State (1980) 2 NCR 225 to found conviction. But in that case Dr. S.N. Murphy who performed the postmortem examination found that asphyxia was the possible cause of death of the deceased. Even then the Supreme Court held at page 237 thus:
“…It is conceded that medical evidence is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with. See Kumo vs. State (6) and Bakuri v. State (4). But that is not the situation in the instant case. A dead body was recovered in circumstances leading to a suspicion of foul play and accused persons were charged with the murder of the victim and the evidence which the prosecution relied on was circumstantial. More useful medical evidence would not only have unequivocally established the cause of death but may have provided the necessary nexus between the death of the victim and some act of the accused (i.e. the second appellant). Worse still, it raised several possibilities and questions which were never conclusively excluded or answered.”
Per Nnamani, JSC.
In most cases where conviction is secured without medical evidence the injury is traceable directly or inferentially to the accused, for instance where he inflicted matchet cuts on the deceased. See Akpan Isaiah Essien V. The State (1984) 3 SC 14 at 16 and Kato Dan Adamu vs. Kano Native Authority (1956) 1 FSC 25.
I resolve issue two in favour of the appellant.
ARGUMENT: ISSUE THREE:
Appellant’s Counsel submitted that there was no circumstantial evidence for the learned trial Judge to have linked the appellant with the death of the deceased to warrant his conviction. Counsel referred to the evidence of the prosecution and the holdings of the learned trial Judge. The Court was urged to resolve issue three in favour of the appellant.
On the whole, learned Counsel urged that the appeal should be allowed, the appellant discharged and acquitted.
The learned Counsel to the Respondent’s reply was that there was enough circumstantial evidence to warrant the conviction and sentence of the appellant. Counsel drew this Court’s attention to the frosty relationship that had existed between the appellant and the deceased, and the fact that it was the appellant that led the police to the pit latrine where the corpse was retrieved. Counsel urged that issue three be resolved against the appellant. The appeal should be dismissed, the conviction and sentence affirmed.
REASONS:
The issue is whether there was such circumstantial evidence that makes it safe to hold that the appellant but no other person may be linked to the death of the deceased so as to sustain his conviction on appeal.
Etim Udoh (Pw1) admitted during examination-in-chief he is appellant’s nephew (p.31 line 1 of the printed record). Edem Udofia Ibanga (Pw2) whom the deceased last visited on 2nd April, 1996 lives at No.81 Ikpa Road, Uyo is the family head of pw1, the deceased and the appellant (p.51 lines 11 of the printed record). Pw3 who investigated the crime found the corpse in the pit latrine where the appellant took him to at No.91B Ikpa Road, Uyo not at No.81A Ikpa Road, Uyo where the appellant and deceased lived. That the appellant and the deceased lived at No.81 Ikpa Road, Uyo is supported by the findings of the learned trial Judge (p.77 lines 24-25 of the printed record).
If No.81B Ikpa Road, Uyo belonged to Akon Hanson alias ‘Mmaette’, and she had hired Edet Effiong (Pw4) to effect repairs of this broken toilet on 5th April, 1996, just after 2nd April, 1996 when the deceased had visited Pw2, she too can be a prime suspect to the killing and dumping in the pit of late Sunday Norbert. Why would the deceased leave a note in his room at No.81A Ikpa Road, Uyo that if he died, it was the appellant who killed him? Where is that note? When was it written? Why was the note and the blood stained shirt of the deceased not tendered as exhibits? Where is the forensic evidence that the blood on the shirt was from the deceased when no prosecution witness had given evidence that the deceased had sustained bodily injury before or after his death?
Pw1 admitted during cross-examination that. “The accused person is the only surviving son in his family”.
– See page 33 lines 3-4 of the printed record. Pw1 further testified that, “…I have not sold the land belonging to the accused’s late father. We only sold one parcel of land for the proceeds to be used for the burial of the accused’s late father.” See page 33 lines 4-6 of the printed record. This is in contrast with the appellant’s unchallenged testimony that, “…My father had parcels of land. It is the Edem Udofia Ibanga (Pw2), Etim Udoh (Pw1) are the people enjoying my father’s property” (page 49 lines 18-20 of the printed record). Furthermore, the appellant’s unchallenged testimony is that from the day of his arrest his relations drove his wife away from their house (See page 55 lines 24-25 of the printed record). Why?
Who stands to benefit if the appellant and his father are dead? The answer is obvious the relations who will benefit from the deceased’s estate. There are more questions than answers in this case.
Pw3 admitted that he visited the residence of the deceased to find there was a toilet there. But the toilet where the corpse was retrieved had a little hole such that no human being could pass through, (p.45 lines 8-10 of the printed record). The next puzzle is that if the deceased visited Pw2 at No.81 Ikpa Road, Uyo on 2nd April, 1996 why would the same witness accuse the appellant on 3rd April, 1996 of killing his father? Etim Udoh (Pw1) and Edem Udofia Ibanga (Pw2) were aware of the strained relationship between the appellant and his late father. They knew that the appellant often beat or threatened to kill his late father whenever they had a quarrel or misunderstanding. They knew that the deceased was often drunk; that the appellant often referred to his late father as a wizard. Indeed, Pw1 used to warn the deceased he should stop being drunk. The Pw1 and Pw2 knew that the deceased was sickly, a recluse to the extent of passing faeces in his room. Pw1, Pw2 and Akon Hanson Udoh Ibanga alias “Mmaette” could have capitalized on the strained relationship between the appellant and his late father to accuse him of the crime in order to get rid of him. The prosecution fell into the trap by portraying they had character of the appellant at the trial in order to secure conviction and sentence to death. That is unacceptable. See the provisions of Section 82(1) of the Evidence Act, 2011. Alternatively, the appellant could have, harbouring an intention to get rid of the deceased on grounds he was a wizard, killed and dumped him in the pit latrine so as to inherit the estate, he being the only surviving child of the family. Pw3 was on duty at the Homicide Section State C.I.D. Uyo on 11th April, 1996 when the case was transferred from “A” Division, Uyo to him for investigation. Pw3, the appellant, Pw1, Pw2 and other relations visited the scene of crime on 12th April, 1996. From 2nd April, 1996 to 12th April, 1996 was it not possible for any person with access to the deceased’s room to plant the letter alleging that if the deceased died the appellant should be held responsible?
In Rabi Ismail V. The State supra Bode Rhodes-Vivour, JSC held at page 88 that:
“Before a conviction for murder can be sustained on circumstantial evidence, such evidence must satisfy the following:
“1. The circumstances from which an inference of guilt is relied on must be cogently and clearly established.
2. The circumstances must point towards the guilt of the accused person.
3. When all the circumstances are taken together, the only reasonable conclusion would be that it was the accused person who committed the crime and no one else. See Shehu v. State (2010) 2-3 SC (Pt.1) p.158; Mustapha Mohammed & Ors. V. The State (2007) 30 NSCOR page 964.”
In my humble opinion, there is no circumstantial evidence that has led irresistibly to the guilt of the appellant. When all the circumstances are taken together it cannot be said with reasonable certainty that only the appellant had the opportunity to kill and dump the deceased into the pit latrine at No.81B Ikpa Road, Uyo. The circumstantial evidence to be acceptable must be consistent with the appellant’s guilt and inconsistent with any other rational conclusion. It is also necessary before drawing the inference of the appellant’s guilt to be sure that there are no other co-existing circumstances which would weaken such inference. See Philip Omogodo v. The State (1981) 5 SC 5 at 24; Anekwe v. The State (1976) 10 SC 255 at 264; Stephen Ukorah v. The State (1977) 4 SC 167 at 174, 176-177; Valentine Adie V. The State (1980) 1-2 SC 116 at 122. The fact that the appellant did not state in his extra-judicial statements he was working at Awomama in Imo State at the time of the crime but at Sundu Bros (Nig.) Ltd. along Abak Road in 1996, nor he did not tell the truth about his whereabouts between 2nd April, 1996 to 20th April, 1996 is immaterial. The onus of proving beyond reasonable doubt that the appellant but no other person murdered the deceased having not been discharged by the prosecution beyond reasonable doubt, I resolve issue three in favour of the appellant.
The appeal is allowed. The appellant is discharged and acquitted.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading, in draft, the Judgment just delivered by my learned Brother, JOSEPH TINE TUR JCA; and I completely agree with the Judgment. I would only wish to add a few words of mine for purposes of emphasis.
The evidence led before a trial court by the prosecution may be direct or circumstantial. But, whether the evidence is direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt. See: THE STATE V. FATAI AZEEZ & ORS (2008) 4 S. C. 188. Where there is some measure of doubt, such doubt is resolved in favour of the accused person.
The Supreme Court in CHUKWU V. THE STATE (1996)7 NWLR (pt.463) 686 at 701, per Wali JSC, said as follows:
“Where prosecution’s evidence is found to be contradictory on a material issue, the court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit him.”
See also: ADEBAYO V. IGBODALE (1996) 5 NWLR (PT.450) 567 AT 616: IBEH V. STATE (1997) 1 NWLR (PT.484) 632 AT 650: ANEHIA & ANOR V. THE STATE (1982) NSCC 85: For this reason, and for the fuller reasons in the lead judgment, I would allow this appeal.
Appearances
I. M. Sackreece & S. Oko JajaFor Appellant
AND
Essien Udom & S. AkpabioFor Respondent
