SUNDAY ASUMOGHA v. THE STATE (2015)

SUNDAY ASUMOGHA v. THE STATE

(2015)LCN/7827(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of March, 2015

CA/L/92/2011

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF THE OFFENCE OF MURDER

The ingredients of the offence of murder under section 319 of Cap 17 of 2003 are that the deceased is dead; that the death of the deceased was caused by the unlawful act or omission of the accused; and that the act or omission of the accused which was responsible for the death of the deceased was intentional and with the knowledge that death or grievous bodily harm was the probable consequence of the act of the accused. See Ubani v. State (2003) 18 NWLR (pt.851) 224 at 241, Onyenankeya v. The State (1964) NMLR 34, Akinfe v. State (1983) 3 NWLR (pt.85) 729, Ozo v. State (1971) 1 All N.L.R. 11 at 115, Omonuju v. State (1976) 5 S.C. 1, Abogede v. State (1996) 5 NWLR (pt.448) 270 -277, Nwaeze v. State (1996) 2 NWLR (pt. 428) 11, Ogba V. State (1992) 2 NWLR (pt. 222) 164. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

EVIDENCE: EVIDENCE OF A WITNESS; WHETHER THE EVIDENCE OF A WITNESS WHO WAS NOT PRESENTED FOR CROSS-EXAMINATION OR WHOSE EVIDENCE WAS UNTESTED UNDER CROSS-EXAMINATION HAS NO PROBATIVE VALUE VIDE THE CASE
It has been held that the evidence of a witness who was not presented for cross-examination or whose evidence was untested under cross-examination by the failure to put him for cross-examination after his evidence-in-chief has no probative value vide the cases of Shofolahan v. State (2013) 17 NWLR (pt.1383) 281 at 320 -321 per the Judgment of Augie, J.C.A., (C.O.N.), Al Mustapha v. State (2013) 17 NWLR (pt.1383) 350 at 423 -424 per the judgment of Augie, J.C.A., (C.O.N.), following the case of Isiaka v. The State (2011) All FWLR (pt.583) 1966, and the fairly recent Supreme Court case of Ikaria v. State (2014) 1 NWLR (pt. 1389) 639 at 652 (para. A). per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

PRACTICE AND PROCEDURE: WRITTEN STATEMENT OF THE PROSECUTION WITNESS; WHEN IS THE WRITTEN STATEMENT OF THE PROSECUTION WITNESS RELEVANT

I think the court below was in error in making use of the statements of the witnesses to the police who did not testify in the case to find that the appellant was responsible for the death of the deceased by deliberately pushing the deceased to death from a balcony of a two storey building. For it was held by the Supreme Court (majority judgment of Fatayi Williams, J.S.C., later C.J.N., now of blessed memory) in the case of Onwe v. The State (1975) N.S.C.C. 375 at 381 -382 that –
“The written statement of a prosecution witness is only relevant to the proceedings at which he gives evidence where the witness proves “adverse” or is shown to have made, at other times, a statement inconsistent with his present testimony. Such a statement is not evidence against the accused with respect to the allegation it contains; it is relevant only as to the credibility of the witness (see R. v. White (1924) 17 CR. App. R. p.60, and also section 208 and 209 of the Evidence Law of the East Central State (Cap.49). Dealing with the same point in The Queen v.Yesufu Akanni (1960) 5 F.S.C. 120 at page 123, where a statement made by a prosecution witness was tendered and admitted in evidence without any foundation being laid for its admission, the Federal Supreme Court observed –
“This document should never have been tendered or received in evidence. The only proper use to which it could have been put was the cross-examination on it of the witness, if he had said anything in his evidence which was contrary to what he had said to the Police….. It would not have been any evidence of its own truth (Phipson, 9th ed.503). The learned trial judge, however, referred to the statement and apparently treated it as corroborating the witness. This, with respect, was an improper use to make of it”. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

EUGENIA CHINWE IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

SUNDAY ASUMOGHA Appellant(s)

AND

THE STATE Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering The Leading Judgment): The appeal arose from the decision of the High Court of Justice of Lagos State (the court below) whereby it convicted and sentenced the appellant to death for the murder of a Mr. Ikechukwu Idoko contrary to section 319 of the Criminal Code Cap 17 (volume 2) Laws of Lagos State, 2003 (CAP 17 of 2003).

In a nutshell, the deceased had been an apprentice trader under the appellant, his master. He had lived with the appellant in the same premises at No. 14, Oduloju Street, Cele Alaba International, Lagos. The deceased was to serve the appellant for six years. He completed the six years of apprenticeship. The deceased was to be released from the apprenticeship in 2006. The appellant refused to release him. The deceased continued the apprenticeship.

Police investigation through some eye witnesses who were not called to testify indicated that the appellant had a quarrel with the deceased for returning late in the night to the house on the fateful day of 9-07-07. That in the course of the quarrel a fracas ensued between the appellant and the deceased. The appellant was said to have pushed the deceased. The push caused the deceased to fall from the balcony of the second floor of a two storey building. The said fall made the deceased unconscious.

According to PW1, a medical doctor, operating a clinic about 50 metres from the said premises, the deceased was brought to his clinic in a state of comatose and gasping in the night of 9-7-07. The deceased bled from the ear and the nose. PW1 concluded the deceased had a fracture at the base of the skull or had head injury. PW1 gave the deceased first aid treatment. From there PW1 referred the deceased to Lagos University Teaching Hospital (LUTH). The appellant and the four other persons that brought the deceased to PW1 took him to LUTH. About the morning of 10-07-07, they brought back the corpse of the deceased with the story that there was no oxygen to manage the deceased at LUTH, so they decided to take the deceased to Ikeja Teaching Hospital where he died on the way. PW1 stated that his hospital which was a primary health care facility had no mortuary, so the deceased was taken by the appellant and the four other persons for autopsy at another medical facility.

PW3, a consultant pathologist and specialist or morbid anatomist, did the post mortem examination on the deceased on 10-07-07. He observed that the deceased had external injury comprising bruises and contusion on the right shoulder. The injury extended to the upper hand. According to PW3 there was no other external injury. PW3 stated that upon opening the body they saw fracture of the 5th rib on the left side and collection of about 50 milles of blood on the left side of the chest cavity and collection of 200 milles of blood in the brain. PW3 also stated that the head had no external injury. PW3 opined that the cause of death was due to massive haemorrhage to the brain caused by “blunt forced injury”.

The appellant’s version was that the deceased was his apprentice and used to stay with him. That the deceased came back to the house late on 9-7-07. He punished the deceased by kneeling. While the deceased was on his knees, he went into his room. Within a short interval one of the appellant’s brothers rushed into his room to inform him the deceased was seen lying on the ground floor. He went to the scene. There the appellant discovered the deceased unconscious. He took the deceased for medical treatment. The deceased did not recover consciousness. He died. The appellant concluded the deceased jumped to his death from the balcony of the two storey building where they lived.

The court below accepted the version of the respondent. It found the appellant guilty of murder and convicted him as charged. The appellant was unhappy with the decision of the court below. He filed a notice of appeal with eight grounds of appeal on 5-11-10, questioning the decision.

In a brief of argument dated 10-3-11 and filed on 14-3-11, the appellant distilled these issues for determination –

“2.1 (a) Whether the testimony of PW3 (consultant Pathologist) was direct evidence and could be relied upon to establish the guilt of the Appellant.

(b) Whether the evidence proffered by the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.

(c) Whether the Lower Court properly evaluated the evidence before it, before coming to a finding of guilt of the Appellant.

2.2 Issue 1 covers grounds 1, 2 and 3. Issue 2 covers grounds 5 and 8, while issue 3 covers grounds 4, 6 and 7.”

Arguing grounds 1, 2 and 3 of the notice of appeal under the first issue, the appellant contended that the PW3, a pathologist, was not an eye witness to the crime, nor did the circumstantial evidence surrounding the death of the deceased pin the crime on the appellant, therefore the court below was wrong to hold that the PW3 gave direct evidence of the cause of death of the deceased as having arisen from a fall from a push on a balcony of a two storey building as his said expert evidence is unreliable and does not accord with reason, nor is the expert evidence cogent, compelling and conclusive vide the cases of Attorney-General of Oyo State v. Fairlakes Hotels (1989) 5 NWLR (pt.121) 285, Khaleed v. State (1997) 8 NWLR (pt.516) 237 at 248, Lori v. State (1980) 1-2 SC 11 at 22, Abieke and Anor. v. State (1976) 10 SC 255 at 265, Adepetu v. State (1989) 9 NWLR (pt.565) 185 at 223 -224.

Grounds 5 and 8 were argued under the second issue to the effect that, although the death of the deceased was established, the five witnesses that gave evidence for the respondent at the court below did not establish beyond reasonable doubt the cause of death of the deceased in that the PW1 and the PW2 testified that the deceased sustained head injury from a fall which caused his death; whereas the PW3, the pathologist, testified that the deceased had no external head injury nor fracture of the bone of the head at the time he performed post mortem examination on the deceased on 10-7-07, a day after the incident which, according to the appellant, is a material contradiction which created reasonable doubt and made it unsafe for the court below to base the conviction of the appellant thereon vide Nnabo v. State (1992) 2 NWLR (pt.226).503, Ogoala v. State (1991) 2 NWLR (pt.175) 509 at 536, Sanmi v. State (1993) 4 NWLR (pt.285) 99 at 121 -122.

It was also argued on the second issue that there is no evidence to link the appellant with the death of the deceased, nor did the evidence for the respondent rule out the possibility of the death of the deceased from other causes, so the case against the appellant that he actually killed the deceased and the cause of the death of the deceased were not proved beyond reasonable doubt vide Gira v. State (1996) 4 NWLR (pt.443) 375, Nwaeze v. State (1996) 2 NWLR (pt.428) 1, Ogba v. State (1992) 2 NWLR (pt.222) 164, Uguru v. State (2002) 9 NWLR (pt.771) 90 at 106, Adepetu v. State (supra) at 223 -224, Daniels v. State (1991) 8 NWLR (pt.212) 715 at 732, Ononiju v. State (1964) 1 All NLR 151, Uguru v. State (supra) at 106, Uyo v. A.-G., Bendel State (1986) 1 NWLR (pt.17) 418, Owu v. State (1993) 9 NWLR (pt.281) 283, Kanu v. State (1993) 9 NWLR (pt.317) 304.

Arguing grounds 4, 6, 7 under the third issue for determination, the appellant contended that at best the evidence against the appellant was based on suspicion which does not take the place of legal proof of an offence beyond reasonable doubt vide Onah v. State (1985) 12 SC 61, Egarevba v. State (1986) 3 NWLR (pt.26) 3.

It was also argued on the third issue that the decision of the court below as perverse in that it relied on the statements to the police of witnesses contained in a weightless police report, Exhibit P7, tendered through PW5, when the potential witnesses did not testify, and the fact that the appellant did not call his brother and wife, eye witness, testify in the case showing the respondent withheld the evidence of the potential witnesses contrary to section 149(d) of the Evidence Act taken along with the cases of State v. Ajie (2000) 11 NWLR (pt.678) 434, Jack v. Whyte (2001) 6 NWLR (pt.709) 266, Atolagbe v. Shorun (1985) 1 NWLR (pt.2) 360, Adekunle v. State (2002) 4 NWLR (pt.756) 169 at 192, Adepetu v. State (supra) at 223, Udeze v. Chidebe (1990) 1 NWLR (pt.125) 141 at 160, Abara v. State (1981) 2 N.C.R. 110 at 119.

The appellant further contended on the third issue that the court below unduly and wrongly placed heavy reliance on the evidence of PW4 and the Exhibit P1, the extra judicial statement of the appellant to find that the appellant had a motive to pushing the deceased to fall to his death on account of the friction between them that arose from the refusal of the appellant to disengage the deceased from his apprenticeship with the appellant when there was no evidence to support the conclusion.

It was also argued that the court below made grave negative remarks against the appellant without evidence in support of the negative remarks which had no relevant to the proof of the offence charged vide State v. Ajic (supra), Jack v. Whyte (supra), Atolagbe v. Shorun (supra), Adekunle v. State (supra) at 192; that the court below was wrong to rely on the extra judicial statements of the appellant, Exhibits P1 and P2, which were in material conflict with the sworn evidence of the appellant and rendered both the oral testimony and Exhibits P1 and P2 unreliable vide Ikemson v. State (1989) 3 NWLR (pt.110) at 55, Kim v. State (1991) 2 NWLR (pt.175) 622 at 636.

It was finally argued that the circumstantial evidence was not sufficient to establish the guilt of the appellant, the more so the court below took into account matters which it ought not to have taken into account and shut its eyes to the obvious facts which led to a miscarriage of justice vide Digbadion v. State (2007) 7 NWLR (pt.666) 686 at 705 -706; and it is on account of these submissions that the appellant urged for the appeal to be allowed.

The respondent raised the following issue for determination in the brief of argument filed on 10-7-14 –

“Whether from the totality of evidence adduced at trial, the Lower Court was right to have found, convicted and sentenced the Defendant/Appellant to death by hanging for the murder of one Ikechukwu Idoko”.

The respondent commenced by pointing out the ingredients of the offence of murder to wit -that the deceased is dead; that the death of the deceased was caused by the unlawful act or omission of the accused; and that the act or omission of the accused which caused the death of the deceased was intentional and with the knowledge that death or grievous bodily harm was its probable cause vide Abogede v. State (1996) 5 NWLR (pt.448) 470, Ubani v. State (2003) 18 NWLR (pt.851) 224 and Kada v. State (1991) 8 NWLR (pt.208) 134.

The respondent then submitted that the fact that the deceased died of injuries sustained from a fall from a height (two storey building) showing his death was not natural was established by the cumulative evidence of PW1 and PW3, which evidence the court below as the master of the facts properly assessed and evaluated and drew the correct inference therefrom that the appellant deliberately killed the deceased.

The respondent further submitted that based on the co-existing circumstances which were supported by the two conflicting versions of the event that led to the death of the deceased given by the appellant in his extra judicial statements in Exhibits P1 and P2 and his testimony at the court below, the court below was right to reach the conclusion that the appellant was responsible for the death of the deceased and that the said decision which was based on the credibility of the witnesses should not be disturbed vide Akinbisade v. State (2006) 17 NWLR (pt.1007) 184 at 193, Gboko v. State (2007) 17 NWLR (pt.1063) 272 at 305.

The respondent further argued that Exhibit P7, a police report, is an exception to the hearsay rule vide Oladejo v. State (1987) 3 NWLR (pt.61) 479 and that the court below was entitled to rely on it together with the evidence of the other witnesses to ground proof of the guilt of the appellant beyond reasonable doubt by the respondent vide section 135(3) of the Evidence Act. It was also argued that, although the evidence of PW3, a medical expert, was the best evidence on the cause of death of the deceased it is not in all instances that a court is bound by the opinion of an expert vide Gaji v. State (1975) 5 S.C. (Reprint) 55, Sowemimo v. State (2004) 11 NWLR (pt.885) 515; but that in the instant case PW3’s testimony was direct as to the actual cause of death, so the court below was right to rely on his expert evidence on the cause of the death of the deceased from a push resulting in a fall from a two storey vide Shande v. State (2006) 11 NWLR 269, Wambai v. Kano Native Authority (1965) NMLR 15, Oforlete v. State (2000) 12 NWLR (pt.681) 415.

The respondent referred to the case of Gabriel v. State (1989) 5 NWLR (pt.122) 457 at 468 -469 to contend that a contradiction exists if one side affirmed the opposite of what the other side had said on a material point not on minor or trivial details due to lapse of time and error in narration in order of sequence, which, according to the respondent was not the case with the evidence of PW1 and PW3 who were in unison that the deceased had an injury at the base of his skull while the evidence of PW2, the police investigator, that the deceased had head injury at the point of impact was vague and amounted to a minor discrepancy from the evidence of PW1 and PW3; so, the evidence of the medical experts, PW1 and PW3 on the issue should be preferred especially as the circumstantial evidence against the appellant who had the motive of killing the deceased is compelling and leaves no doubt that the appellant killed the deceased vide Obosi v. State (1965) 1 NMLR 129, Okoh v. State (1971) NMLR 140, Nwaeze v. State (1996) 2 NMLR (pt.428) 1, Ebere v. State (2001) 6 SC 1, Mohammed v. State (2007) 11 NWLR (pt.1045) 303 at 320, Adio v. State (1986) 2 NWLR (pt.24)581, Uzoyare v. State (1984) 10 SC 157, Queen v. Moses (1960) 5 FSC 187, Ugiaka v. State (1984) 2 SC 1, Ishola v. State (1978) 9 -10 SC 81 at 104 -105.

The respondent made the points in its final submissions that circumstantial evidence must be narrowly examined to eliminate a possibility of fabrication to cast suspicion on an innocent person vide Igabele v. State (2006) 6 NWLR (pt.975) 100 at 130, Udedibia v. State (1976) 11 SC 133, Adie v. State (1980) 1 -2 SC 116 and Omogodo v. State (1981) 5 SC 5; that the evidence of the circumstances behind the death of the deceased adduced by the respondent at the court below was unbroken and proved the case against the appellant beyond reasonable doubt; that the inconsistency rule does not apply to the evidence of an accused and his confessional statement vide Emoga v. State (1997) 1 NWLR (pt.483) 615; and that the court below was entitled to look at the documents in the record of the court as it did with respect to Exhibits P1, P2 and P7 to come to a conclusion in the determination of guilt of the appellant that he actually killed the deceased vide Abiodun v. A.-G., Federation (2007) FWLR (pt.398) 7135.

The respondent concluded by contending that the circumstantial evidence pointed irresistibly to the guilt of the appellant that he pushed the deceased from a balcony from a two storey building which led to the death of the deceased; consequently, the appeal should be dismissed and the conviction and sentence of the appellant by the court below for the murder of the deceased be affirmed.

In my considered opinion, the issues formulated by the appellant are germane to the determination of the appeal and I desire to follow the said issues in the discussion.

It is common ground between the appellant and the respondent that the tide of the evidence at the court below proved beyond reasonable doubt that the deceased, Ikechukwu Idoko is dead. The court below found, aright, in my view that the death of the deceased was proved beyond reasonable doubt. The first element of the offence was thus established at the court below.

With respect to the other two ingredients of the offence (supra), the court below relied heavily in its judgment in pages 84 -85 of the record on the statements of witnesses to the police in Exhibit P7 who did not testify in the case to hold that the appellant was with the deceased at the balcony of the two storey building where the appellant pushed the deceased who fell down and later died from the fall.

Although it is tedious to reproduce the portion of the judgment, I am constrained to do so for the purpose of clearness as to the adverse effect it had on the reasoning of the court below in the capital trial and conviction of the appellant. The relevant portion of the judgment which is in pages 84 -85 of the record reads –

“The court finds further corroboration in the Police Investigation Report Exhibit P7. In that report one Okechukwu Mmadu is said to be the co-tenant and okada rider living on the ground floor of the home of defendant where the incident happened. It is however, curiously interesting that DW2 gave his name as Okechukwu Ebubedike. In any case, this witness said he left the premises in February 2007 while the incident happened in July 2007. So he is assumed to be different from Okechukwu Mmadu who defendant said is the co-tenant and okada rider who helped to take the deceased with the defendant’s brother to the hospital while the defendant and his wife stayed back of course to wash off the blood of the deceased that was splashed on the ground which fact was confirmed by the I.P.O. that no blood was seen on the ground of the premises when they visited it in the course of their investigation. In this exhibit, Exhibit P7 Okechukwu Mmadu stated that the wife of the defendant on the night of the incident knocked his door screaming for help that he should assist and take the deceased to Crown hospital, Sabo which he obliged without hesitation and accompanied by the defendant’s younger brother Chizoba while the defendant only stood by the balcony upstairs stairring and refused to come down. That when he Okechukwu Mmadu returned from the first hospital after they have been referred to LUTH, he met the defendant’s wife washing away the blood which was about 0000 hrs and that before this he had called defendant that deceased was referred to LUTH and enroute LUTH they discovered that the deceased had given up the ghost. Although he quoted their landlord to have heard from neighbours that the defendant killed his apprentice Ikechukwu because of meat.

The fact that the defendant while the deceased laid on the ground unconscious, stood still on the balcony from where he had been pushed down, disinterested in the fate of the deceased was confirmed by other neighbours to the police in this exhibit, namely Kingsley Ogu and Kelechi Ben who stated that at about 10:30 – 11pm, he and the occupants of his own flat started hearing loud noise (commotion that represented fighting between two which made him suspect an armed robbery attack in Sunday Asumogha’s flat. He said he could not come out for fear, but suddenly, they heard a very big noise which made them rush downstairs where they met the deceased lying on the ground facing up with blood gushing out from his head and ear. And while they were struggling to revive the deceased, the Master Sunday Asumogha was starring at them from the balcony without coming down. This therefore confirmed that the defendant was with the deceased at the time of the later’s fall from the balcony consistent with a push with the person with whom he was on the balcony ie., the defendant. He was seen on that same balcony immediately after the later’s landing on the ground. It therefore debunks the defendant’s story that he was in his room when he heard people shouting which made him to immediately rush downstairs.
…………………
In this same exhibit, it is reported that the defendant admitted telling lies to the police in its earlier statement in Exhibit P1, by stating that the deceased was asked to go and buy fuel at about 10:30pm while he was fast asleep and when he was searching for money he heard a noise/shout that the deceased had jumped down from upstairs. That the statement was on the instruction of the medical director of Crown Hospital Sabo Dr. Anameje who denied it on interrogation. Also in this report, it is reported that the defendant’s brother Chizoba Asumogha is the one that had stated that he, after his bath, was inside his room, dressing, when he heard some people shouting in the compound and having rushed to ascertain what was going on, met some of their neighbours surrounding Ikechukwu Idoko ‘M’ who was lying on the ground unconscious …. In this additional statement, still in this report, he is said to have admitted that there was a hot argument between his elder brother and the deceased during which he warned his elder brother to take it easy with the deceased. Although this said, statements by the neighbours and defendant’s wife and Chizoba are not before the court their absence does not make the case against defendant weak.

There is sufficient evidence that the defendant was on the same balcony from where the deceased fell down and that the fall was consistent with push and inconsistent with an intentional jump as the defence would want the court to believe. I am therefore satisfied that the defendant and no other person pushed the deceased to his death from its wicked and overbearing nature. The case for the prosecution has been proved beyond any unreasonable doubt. He is therefore hereby convicted as charged” (My emphasis).

In addition, the witnesses whose statements were compiled in Exhibit P7 were not presented for cross-examination at the court below.
It has been held that the evidence of a witness who was not presented for cross-examination or whose evidence was untested under cross-examination by the failure to put him for cross-examination after his evidence-in-chief has no probative value vide the cases of Shofolahan v. State (2013) 17 NWLR (pt.1383) 281 at 320 -321 per the Judgment of Augie, J.C.A., (C.O.N.), Al Mustapha v. State (2013) 17 NWLR (pt.1383) 350 at 423 -424 per the judgment of Augie, J.C.A., (C.O.N.), following the case of Isiaka v. The State (2011) All FWLR (pt.583) 1966, and the fairly recent Supreme Court case of Ikaria v. State (2014) 1 NWLR (pt. 1389) 639 at 652 (para. A).

It is pertinent to state that outside the so-called corroborative evidence of the witnesses that were not called to testify, there is no scrap of evidence, direct or circumstantial, to prove beyond reasonable doubt that the appellant murdered the deceased.

Some disturbing pronouncements were, also, made by the court below respecting the appellant in pages 83 of the record thus –

“It is also obvious that the Defendant was a tyrant and a very bossy big Master to the deceased whom he saw as a mere slave with no right of his, much less a life to life …….. He gave the impression that he had more right to live than the deceased. As a matter of fact at the time the prosecution witnesses testified, the demeanour of the Defendant was that of defiance and he gave the impression of a blood thirsty human vampire”.

It is hard to appreciate the severe words (supra) of the court below which had no bearing on the ingredients of the offence (supra). There is, also, no reliable evidence in the record to justify the said censure. That the said hard words were made at the time of evaluation of evidence by the court below indicated the uneven-handed manner the court below handled the case before it.

The other reason the court below gave for the conviction of the appellant was that PW3, the morbid anatomist, gave “direct evidence” of the cause of death of the deceased vide pages 81 -82 of the record. PW3 is a pathologist/morbid anatomist. He examined the corpse of the deceased. He did not witness how the deceased met his death. Therefore PW3 was not in a position to give direct evidence of the cause of death of the deceased. The court below was, accordingly, in error in holding that PW3 gave direct evidence of the cause of death of the deceased. The evidence of PW3 was based on his post mortem examination of the deceased. Thus it is opinion evidence of an expert vide sections 67 -76 (especially section 68) of the Evidence Act 2011 (Evidence Act) dealing with opinion or expert evidence. It is not direct evidence. Direct evidence comes from eye witnesses of an event or incident.

PW3 had testified in page 15 of the record that the deceased had no external head injury or fracture of the bone of the head at the time he examined his corpse. However, PW1, a medical practitioner, who attended to the deceased by way of first aid treatment stated in his evidence in page 9 of the record that the base of the skull of the deceased was fractured. PW2, the police investigator of the case, also stated in his evidence in page 13 of the record that the deceased had head injury at the point of impact.

The pieces of evidence of PW1 and PW2 that the deceased had head injury before his death and/or before his corpse was examined by PW3, the anatomist, sharply contradicted/challenged the expert evidence of PW3, the anatomist, that there was no external injury on the head of the deceased at the time he performed post mortem examination on the corpse of the deceased. It was held in Kalu v. State (1993) 3 NWLR (pt.279) 20 at 32 -33 per the Judgment of Ndoma-Egba, J.C.A., (as he was, now of blessed memory) that medical evidence must not contradict other evidence so far led on the physical injury on the deceased.
In that case (supra) the medical doctor, PW1, had given evidence that there were no physical injuries on the corpse of the deceased at the time of post mortem examination by him, whereas the evidence of PW2 and PW3 who saw the deceased before the post mortem examination stated that there were physical injuries on her body. See also Nwaobasi v. State (2008) All FWLR (pt.446) 1974 at 1995 where the Court held that expert evidence that is contradicted should not be accepted hook, line and sinker, so to speak. Consequently, the court below was in error in relying heavily on the expert evidence of the PW3 in pages 15 -16 of the record to find in its judgment in pages 81 -82 of the record that the cause of death of the deceased was due to a fall from a push from a two storey building.

The appellant’s submission to the effect that material conflict or contradiction between the evidence of an accused and his extra judicial statement renders both the evidence and the extra judicial statement unreliable is, with deference, inapplicable to confessional statements which the court is entitled to rely on and disregard the sworn evidence vide Egboghonome v. State (1993) 7 NWLR (pt.306) 383.

With respect to Exhibits P and P1, the extra judicial statements of the appellant, there is nothing therein to suggest that they are confessional. The two statements, Exhibits P and P1, did not admit the commission of the offence charged, nor does the evidence of the appellant in pages 37 -40 of the record aggregate to the admission by the appellant of the commission of the offence charged.

Flowing from the fact that the appellant did not admit killing the deceased by pushing him from the balcony of a two storey building, the court below went too far in its judgment in pages 82 -86 of the record to hold and infer that because the appellant was allegedly with the deceased at the material time when there was no firm cogent, compelling and conclusive evidence to lead and did not lead to the irresistible or inevitable/unavoidable conclusion that the appellant was with the deceased and actually murdered the deceased vide the case of Aigbadion v. State (2000) 7 NWLR (pt.666) 686 and the cases of Anekwe v. State (1976) 9 -10 S.C. 255, Ukorah v. State (1977) 4 S.C. 167, Adie v. State (1980) 1 -2 S.C. 116 and Lori v. State (1980) 8 -11 S.C. 81.
The surrounding circumstances of the case only cast a thick cloud of suspicion on the appellant that he had the opportunity to kill the deceased. But evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence vide Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408.
From the pattern of the extra judicial statements of the appellant in Exhibits P and P1 and his sworn evidence (as the court below endeavoured to demonstrate in its judgment in pages 82 -86 of the record), the appellant lied on circumstances that led to the death of the deceased; but in the absence of evidence positively linking the appellant with the death of the deceased and/or that the appellant in fact killed the deceased, the lies per se and the bad image or demenour of the appellant in the witness box cannot ground his conviction for the offence charged vide Omogodo v. State (1981) N.S.C.C. 119 at 128, Okpere v. State (1971) 1 All N.L.R. 1 at 5, Haruna and Anor. v. Police (1967) N.M.L.R. 145.

In the result, I find merit in the appeal and hereby allow it and quash the conviction and sentence imposed on the appellant by the court below. Accordingly, I enter a verdict of not guilty for the appellant and hereby acquit and discharge the appellant of the offence charged.

CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother IKYEGH JCA. I agree with my Lord that the appeal is meritorious.
In the case of Bakare v. The State (1987) 3 SC 1 the Supreme Court per Oputa JSC of blessed memory observed:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherence in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability…”

The question is ‘Did the prosecution adduce such evidence as would lead a reasonable man to conclude that it proved its case beyond reasonable doubt, such as would cause the burden to shift on the appellant to prove reasonable doubt? No eye witness testified that he saw the appellant throw down the deceased from the balcony during the alleged altercation between them. The Lower Court relied on statements of witnesses in the police report Exhibit P7 who were not called to testify and also the circumstantial evidence deduced from the contradictory evidence of two medical doctors PW1 and PW3 as to the cause of the injury. These surely do not translate to such proof beyond reasonable doubt as would shift the burden on the appellant to prove reasonable doubt.

I agreement with my learned brother that there was no evidence, direct or circumstantial to prove beyond reasonabel doubt that the appellant murdered the deceased. I also find merit in the appeal and hereby quash the conviction and sentence imposed on the appellant by the court below. I abide by the consequential orders in the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother J. S. Ikyegh has affored me the privilege of a prior perusal of the lead judgment just delivered.

The issues in contention have been exhaustively considered and resolved in line with the relevant laws and I am in agreement with the reasoning and conclusions contained therein. I have nothing extra to add.

I also hold that the appeal is meritorious and it is hereby allowed.

The judgment of the Lower Court is hereby set aside and the conviction and sentence quashed. The Appellant is accordingly discharged and acquitted.

Appearances

Mr. R. A. Aladesanmi (with Mr. G. Uwaifo and Miss. G. A. Okewole)For Appellant

AND

Mr. H. F. Owokoniran (P.S.C. Lagos State)For Respondent