THE STATE V. EZEKIEL FASINA ANIBIJUWON & ORS (2011)

THE STATE V. EZEKIEL FASINA ANIBIJUWON & ORS

(2011)LCN/5005(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of December, 2011

CA/I/133C/2006

RATIO

MURDER: THE INGREDIENTS THAT MUST BE PROVED BY THE PROSECUTION TO SECURE A CONVICTION FOR THE OFFENCE OF MURDER

Learned counsel for the different sets of respondents has correctly stated the position of the law as regards the duty of the prosecution in a charge of murder. In order to secure a conviction the prosecution must establish the following ingredients beyond reasonable doubt: 1. That the deceased died. 2. The act or omission of the accused which caused the death of the deceased was unlawful and 3. The act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was the probable consequence. See: Igabele V. The State (2006) 6 NWLR (975) 100 @ D – F; Abogede V. The State (1996) 5 NWLR (448) 270; Adekunle V. State (2006) 6 SCNJ 275 @ 287; Akpan V. The State (1994) 12 SCNJ 140 @ 149. It is also the law, as submitted by learned counsel for the 1st, 3rd, 4th and 5th respondents relying on Igabele V. The State (supra) and Ogba V. The State (1992) 2 NWLR (222) 164 @ 198 C – D that all three ingredients must co-exist and the onus of proof is on the prosecution throughout and never shifts. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

CIRCUMSTANTIAL EVIDENCE: THE NATURE OF CIRCUMSTANTIAL EVIDENCE THAT WOULD SUSTAIN A CONVICTION IN A MURDER CHARGE

On the nature of circumstantial evidence that would sustain a conviction the Supreme Court held in the case of: Mohammed v. State (2007) 11 N.W.L.R. (Pt, 1045) 303 at327 C-D; 329 D-E; 331 C-F as follows: “Circumstantial evidence is the proof of circumstances from which, according to the ordinary course of human affairs, the existence of some facts may reasonably be presumed. In other words, it is that evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. … It is the narration of surrounding circumstances which by undesigned coincidence is capable of proving with clear-cut accuracy the guilt of the person. For it to support a conviction in a criminal trial, particularly in murder cases, such circumstantial evidence must be cogent, complete and unequivocal. Indeed, it must be compelling and must be such that leads to only one irresistible conclusion that it is the prisoner and no one else who is the murderer. Those facts narrated, as being the base of circumstantial evidence, must be incompatible with the innocence of the accused and must be incapable of proffering any explanation of any other reasonable hypothesis than that of the guilt of the prisoner … Arguably, circumstantial evidence is often the best evidence in establishing a case of murder.” The cases of: Akinmoju v. State (1995) 7 NWLR (Pt. 406) 204: Ogundipe v. Queen (1954) 14 WACA 458; Esai v. State (1976) 11 SC 39; Obosi v. State (1955) 1 NMLR 129 were referred to. See also: Ikomi V. The State (1986) 5 SC 313. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

CONTRADICTIONS IN PROSECUTION’S CASE: NATURE OF THE CONTRADICTION IN THE PROSECUTION’S CASE THAT WOULD BE FATAL TO THE PROSECUTION’S CASE

The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie v. The State (2004) 14 NWLR (893) 257 at 280 A-D; Ikemson V. The State (1989) 2 NSCC (Vol. 20) 471; Onubogu V. The State (1974) 1 All NLR (Part II) 5; Okonji V. The State (1987) 1 NWLR (52) 659. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

MATERIAL EVIDENCE: EFFECT OF THE FAILURE OF THE PROSECUTION TO CALL A MATERIAL WITNESS IN PROVING ITS CASE

While it is trite that the prosecution is not expected to call a host of witness to prove its case, the failure to call a material witness would be fatal to its case. See: Usufu V. The State (2007) 1 NWLR (020) 94 @ 117 – 118 H – E; (2008) ALL FWLR (405) 1731; Akawo V. The State (2011) ALL FWLR (597), 624 @ 640 F – G. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

REBUTTABLE PRESUMPTION: WHETHER THE PRESUMPTION THAT THE PERSON LAST SEEN ALIVE WITH THE DECEASED MUST BE THE MURDERER IS A REBUTTABLE PRESUMPTION

The presumption that the person last seen alive with the deceased must be the murderer is a rebuttable one. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

PROBABILITY IN EVIDENCE: THE DUTY OF COURT TO BE HESITANT IN DRAWING PROBABILITIES FROM EVIDENCE WHERE THE ACCUSED IS CHARGED WITH A CAPITAL OFFENCE

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

THE STATE Appellant(s)

AND

1. EZEKIEL FASINA ANIBIJUWON
2. ISAAC OLUFISAYO AJEWOLE
3. LAMIDI LADOKUN
4. OSENI TAIWO AYEGBAJEJE
5. EZEKIEL OLU OPERINDE
6. FEMI OGUNTADE Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): The respondents were arraigned before the High Court of Osun State, Ilesa Judicial Division on a two-count charge of conspiracy and murder as follows:
Statement of Offence
Conspiracy: contrary to and punishable under Section 324 of the Criminal Code, Cap. 30 Volume II Laws of Oyo State of Nigeria, 1978 as applicable in Osun State.
Particulars of Offence
Ezekiel Fasina Anibijuwon II ‘m’ (2) Isaac Olufisayo Ajewole ‘m’ (3) Lamidi Ladokun ‘m’ (4) Oseni Taiwo Ayegbajeje ‘m’ (5) Ezekiel Olu Operinde ‘m’ and (6) Femi Oguntade ‘m’ on or about the 6th day of October, 1999 at Ilesa in Ilesa Judicial Division conspired to murder Israel Adekunbi Fadahunsi ‘m’.
Statement of Offence
Murder: Contrary to and punishable under Section 319 (1) of the Criminal Code Cap, 30 Volume II Laws of Oyo State of Nigeria, 1978 as applicable in Osun State.
Particulars of Offence
Ezekiel Fasina Anibijuwon II ‘m’, (2) Isaac Olufisayo Ajewole ‘m’, (3) Lamidi Ladokun ‘m’ (4) Oseni Taiwo Ayegbajeje ‘m’ (5) Ezekiel Olu Operinde ‘m’ and (6) Femi Oguntade ‘m’ on or about the 6th day of October, 1999 at Ilesa in Ilesa Judicial Division murdered Israel Adekunbi Fadahunsi ‘m’.
The respondents all pleaded not guilty to the two counts. The case proceeded to trial. The prosecution called ten witnesses and tendered several exhibits. At the close of the prosecution’s case, the respondents made a no case submission. It was overruled and they were called upon for their defence. The respondents each testified on their own behalf and called two additional witnesses. At the conclusion of the trial the learned trial Judge in a considered judgment delivered on 15/8/05 found each of the respondents not guilty on each count of the charge and discharged and acquitted them accordingly.
The appellant was dissatisfied with the judgment and filed a notice of appeal dated 26/8/2005 containing the omnibus ground of appeal. With leave of court the appellant filed an amended notice of appeal dated 29/7/08 containing four additional grounds of appeal.
The facts that gave rise to this appeal, as can be gathered from the record of proceedings and the briefs of arguments filed are as follows: The deceased, Chief Israel Adekunbi Fadahunsi, the Asolo of Ilase-Ijesa, an elderly man, had a long standing history of asthma and had been the 6th respondent’s patient at his hospital, Ireti-Ayo Hospital (hereinafter referred to as the Hospital) for more than 18 years before the incident that gave rise to the charge took place. The 6th respondent is a retired Superintendent Nursing Officer. On 3/10/99 Chief Fadahunsi’s in law, Thomas Ajayi Ogunfolabi, who testified as PW1, took him to the hospital for treatment. It was decided to try herbal treatment. He was placed on admission and his granddaughter, Mary Lawrence (PW2) stayed with him. On the night of 5/10/99 he began to agitate that he wanted to leave the hospital. In the morning of 6/10/99 he sent PW2 to his home at Ilase-Ijesha about 25km away to bring his driver and vehicle to take him home. He became restless when PW2 did not return on time and was seen going in and out of the hospital and complaining to the hospital staff. By the time PW2 returned with the driver later in the day, the old man was nowhere to be found. In spite of a thorough search nothing was seen or heard from him again until sometime in April 2000 when a headless corpse was discovered buried in a shallow grave at the deceased’s family farmland at Ibisomi Village at Ilase Ijesha. The body was exhumed and later identified to be that of the deceased. An autopsy was performed on the body and the cause of death was said to be cutting off of the head.
It was the prosecution’s case that all the respondents were linked to the disappearance of the deceased and that the 1st respondent in particular had some grievances against the deceased. That the 1st – 5th respondents and the deceased were involved in a dispute over a Chieftaincy farmland. It was also contended that incriminating evidence was found in the home of the 1st respondent.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant filed the following briefs all settled by N.O.O. OKE, SAN:
i. Appellant’s brief dated and filed on 29/7/08.
ii. Reply to 1st, 3rd, 4th and 5th respondents’ brief dated and filed on 31/3/09.
iii. Reply to 2nd respondents brief dated and filed on 31/3/09 but deemed filed on 22/4/09.
iv. Reply to the 6th respondent’s brief dated and filed on 28/4/09.
The 1st, 3rd, 4th and 5th respondents’ brief, settled by OLUWOLE ELUDOYIN ESQ., is dated 15/9/08 and filed on 17/9/08. The 2nd respondents brief, settled by MOSES A. ODETUNDE ESQ., is dated and filed on 24/9/08 while the 6th respondent’s brief, which was settled by OLUWOLE ELUDOYIN ESQ, is dated 24/2/09 and filed on 25/2/09. It was deemed properly filed on 22/4/09.
At the hearing of the appeal on 20/10/2011, MR. N.O.O. OKE, SAN adopted and relied on all the briefs filed by the appellant. In further amplification of arguments in the said brief he submitted that the alibi of the 2nd, 3rd, 4th and 5th accused were discredited by the prosecution and therefore it was proved that they were at the scene of crime at the material time. He also argued that conspiracy need not be proved by direct evidence so long as there are snippets of evidence woven together. He urged the court to allow the appeal.
MR. OLUWOLE ELUDOYIN, learned counsel for the 1st, 3rd, 4th and 5th respondents adopted and relied on his brief and submitted that the prosecution failed to disprove their alibis. He urged the court to dismiss the appeal. The 2nd respondents counsel was absent although duly served with hearing notice. He is deemed to have argued the appeal based on the brief filed pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules 2011. In his brief he urged the court to dismiss the appeal.
MR. O. ABIMBOLU, learned counsel for the 6th respondent adopted and relied on his brief. He relied on an additional authority: Insurance Brokers of Nig. Ltd. V. Atlantic iles Manufacturing Co. Ltd. (1996) 8 NWLR (466) 317 @ 327 in support of the argument at paragraph 5.1 of his brief to the effect that the learned trial Judge was right when he held that the contradictions and inconsistencies in the evidence of the medical doctor were fatal to the prosecution’s case. He urged the court not to substitute its views for those of the trial court where the court has properly evaluated the evidence. He argued that having regard to the fact that there are many possibilities as to how the offence was committed, the trial court was right to discharge the accused persons.
MR. OKE, SAN in reply submitted that the appellate court is entitled to interfere with the decision of the trial court and reach its own conclusions where the evidence on record does not support the conclusion reached.
The appellant formulated five issues for determination thus:
1) Having regard to the totality of the evidence before the court was the guilt of the accused persons not established beyond reasonable doubt in respect of the offence they were charged – Ground 1,
2) Whether the trial court was right in holding that the Police must have been responsible for the bringing of the incriminating materials found in the house of the 1st Respondent – Ground 2.
3) Whether the trial court was right in discharging and acquitting the Respondents on the alleged contradictions highlighted by the Court in the evidence of PW6, the Medical Doctor, when there are over-whelming evidence identifying the corpse – Ground 3,
4) Having regard to the evidence led by the prosecution, whether the trial court was right in not making any finding on the count of conspiracy against the Respondents Ground 4.
5) Whether the trial court was right in discharging and acquitting the respondents upon the overwhelming evidence of conspiracy and murder before the court – Ground 5.
The 1st, 3rd, 4th and 5th respondents formulated four issues thus:
1) Whether the decomposed corpse exhumed at Ibisomi Village via Ilase-Ijesa which was the subject of the autopsy contained in Exhibit Q was identified and proved with certainty as that of the missing man Chief Israel Adekunbi Fadahunsi.
2) Whether from the admissible evidence before the court the police officers who conducted the search and recovered some incriminating items (Exhibits E, F, G, H, J1, J2, and K) from the house of the 1st accused/respondent had the opportunity to plant same there.
3) Whether the alibi of the 4th accused (4th respondent) as to his where about on 6/10/99 was disproved by the prosecution.
4. Whether from the totality of the admissible evidence before the court, the prosecution was able to discharge the burden placed on them by law to prove the charge against the respondents beyond reasonable doubt.
The 2nd respondent distilled two issues for determination:
1) Whether from the available evidence before the court, the prosecution has discharged the burden placed on it by law to establish the charge against the 2nd respondent beyond reasonable doubt.
2) Whether the decomposed corpse exhumed at Ibisomi village near Ilase-Ijesa as contained in the autopsy report (Exhibit Q) was proved to be that of a missing Chief Israel Adekunbi Fadahunsi.
The 6th respondent also formulated two issues for determination:
1) Whether from the available evidence before the court, the prosecution has discharged the burden placed on it by law to establish the charge against the 2nd respondent beyond reasonable doubt.
2) Whether the decomposed corpse exhumed at Ibisomi village near Ilase-Ijesa as contained in the autopsy report (Exhibit Q) was that proved to be that of a missing chief Israel Adekunbi Fadahunsi.
After a careful consideration of the issues formulated by all the parties, I am of the view that the following issues will resolve all the issues in contention in this appeal:
1. Whether the decomposed corpse exhumed at Ibisomi Village via Ilase-Ijesa which was the subject of the autopsy contained in Exhibit a was identified and proved with certainty as that of the missing man Chief Israel Adekunbi Fadahunsi. (Appellant’s issue 3; 1st, 3rd, 4th and 5th respondents, issue 1; 2nd respondents’ issue 2 and 6th respondent’s issue 4).
2. Whether the trial court was right in holding that the Police must have been responsible for bringing the incriminating materials found in the house of the 1st respondent. (Appellants issue 2; 1st, 3rd, 4th and 5th respondents’ issue 2).
3. Whether the prosecution discharged the burden placed on it by law of proving the charge against the respondents beyond reasonable doubt. (Appellant’s issues 1 and 5; 1st, 3rd, 4th and 5th respondents’ issues 2 and 4; 2nd and 6th respondents’ issue 1),
4. Whether the learned trial Judge was right in not making any finding on the count of conspiracy against the respondents, (Appellant’s issue 4).
Issue 1
Whether the decomposed corpse exhumed at Ibisomi Village via Ilase-Ijesa which was the subject of the autopsy contained in Exhibit Q was identified and proved with certainty as that of the missing man Chief Israel Adekunbi Fadahunsi.
In support of this issue, Mr. Oke, SAN rejected the finding of the learned trial Judge to the effect that there were substantial and fundamental contradictions on vital aspects of the prosecution’s case on the identification of the exhumed corpse. He submitted that the identification of a corpse must be done by persons who knew the deceased. He referred to: Amusa V. The State (2002) 2 NWLR (750) 73 @ 89 and submitted that PW2 and some other family members identified the corpse in this case. He referred to the evidence of PW2 that she identified the corpse by part of the cloth on it and by his black toenails, which she had cut for him at the hospital. He submitted that her evidence was unshaken under cross-examination and supported that of the medical doctor (PW6). He argued that, the corpse having been identified by persons who knew the deceased, the alleged contradictions as to where the autopsy was performed and whether or not there was any cloth on the corpse became irrelevant. He argued that the alleged contradictions do not go to the root of the charge. He referred to: Obidike V. The State (2001) 17 NWLR (743) 601 @ 629; Awopejo V. The State (2000) 6 NWLR (659) 1 @ 17. He submitted that the medical doctor’s evidence supports the other evidence before the court and that the learned trial Judge ought to have considered all the evidence led on the issue together and not to have relied solely on the evidence of PW6. He argued that the medical report was not particularly relevant in this case. He submitted that the medical report ought to have been tested against the oral evidence of the doctor and other evidence adduced by the prosecution. He submitted that the identity of the deceased was clear and unambiguous. He referred to the case of: A.G. Federation V. Ogunro (2001) 10 NWLR (720) 175 @ 187; Idemudia V. The State (2001) FWLR (55) 549 @ 557.
Mr. Eludoyin, learned counsel for the 1st, 3rd, 4th and 5th respondents referred to the ingredients of the offence of murder, which must be proved beyond reasonable doubt by the prosecution as stated in several authorities, including Godwin Igabele V. The State (2006) 2 SCNJ 124 @ 133 where it was held that the three ingredients must coexist, and where one is absent or tainted with doubt the charge is said not to be proved. It was also held that the onus of proof is on the prosecution throughout and does not shift.
Learned counsel submitted that the first ingredient is that the prosecution must prove that a human being died and his identity must be clearly ascertained. He submitted that where the identity of the corpse in issue is in doubt, such doubt would be resolved in the respondents’ favour. He submitted that the identity of the corpse exhumed at Ibisomi Village via Ilase-Ijesa and on which Exhibit Q was issued by PW6 was not proved with certainty to be that of Chief Israel Adekunbi Fadahunsi (the missing man).
He referred to the evidence of PW6 at page 45 of the record and submitted that the method he adopted in conducting the post-mortem examination of the corpse first before calling on someone to identify it was wrong. He argued that this procedural defect was fatal to the prosecution’s case. He contended that where the corpse, as in this case, was three to six months old, any physical examination thereof would alter its physical condition and therefore any identification done thereafter would be a sham. He also argued that the oral evidence of PW6 contradicted the contents of Exhibit Q, the medical report and therefore creates doubt in the mind of the court. He submitted further that the evidence of PW2 contradicts that of PW10 as to how they identified the corpse. He noted that while PW2 said she was able to identify him by his black toenails, which she had cut for him in the hospital, PW10 stated that he identified him by his long, black toenails. He surmised that a person’s toenails, which had been cut just before his death could not have grown after death and therefore if the corpse was that of the missing man, it could not have had long toenails. He also noted that the person who identified the corpse to PW6 was not called to testify at the trial. He urged the court to hold that the oral evidence of PW6 contradicts the contents of Exhibit Q and further that the evidence of PW2 that she identified the cloth on the corpse contradicts paragraph 3 of Exhibit Q, which states that there was no cloth on the corpse. He urged the court to hold that the contradictions in the evidence of PW2, PW6, PW10 are irreconcilable and should not be believed or accepted. He relied on: S.A. Orepekan & 7 Ors. V. The State (1993) 11 SCNJ 68 @ 78. He urged the court not to disturb the findings of the learned trial Judge in this regard. He relied on: The State V. Joseph Nnolim & Anor. (1994) 5 SCNJ (Part 1) 48 @ 56; John Mammuda Buba V. The State (1994) 7 – 8 SCNJ (Part 3) 472 @ 477; Sunday Baridam V. The State (1994) 1 SCNJ 1 @ 12. He urged the court to hold that the exhumed corpse, which is the subject of Exhibit Q is not that of the missing man.
Mr. Odetunde, learned counsel for the 2nd respondent, in his brief referred to the case of Lori V. the State (1980) 8 – 11 SCNJ 95 – 96 and submitted that in a charge of murder the cause of death must be established unequivocally and that the accused must be discharged where the cause of death is not proved. He submitted that there are various possibilities as to the cause of death from the evidence before the court. He referred to the evidence of PW2 under cross-examination at page 20 of the record where she stated, the deceased asked what he was waiting for on earth” and contended that he might have committed suicide, could have been beaten to death or just dropped dead. He submitted that the prosecution did not lead any evidence as to cause of death and that Exhibit Q was of no help in this regard.
Mr. Abimbolu, learned counsel for the 6th respondent submitted that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not evidence on which the court can act, He referred to the analysis of the evidence of PW6 by the learned trial Judge at pages 145 and 146 of the record, showing the inconsistencies in the evidence and urged the court to hold that His Lordship was right when he resolved the doubt created by the highlighted contradictions in favour of the 6th respondent.
In his reply to the various briefs of argument on this issue, learned Senior Counsel for the appellant merely reiterated his earlier submissions to the effect that the alleged contradictions are not substantial and that the court should consider the entirety of the evidence of the prosecution’s witnesses on the identification of the corpse as that of the missing man.
Learned counsel for the different sets of respondents has correctly stated the position of the law as regards the duty of the prosecution in a charge of murder. In order to secure a conviction the prosecution must establish the following ingredients beyond reasonable doubt:
1. That the deceased died.
2. The act or omission of the accused which caused the death of the deceased was unlawful and
3. The act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was the probable consequence.
See: Igabele V. The State (2006) 6 NWLR (975) 100 @ D – F; Abogede V. The State (1996) 5 NWLR (448) 270; Adekunle V. State (2006) 6 SCNJ 275 @ 287; Akpan V. The State (1994) 12 SCNJ 140 @ 149.
It is also the law, as submitted by learned counsel for the 1st, 3rd, 4th and 5th respondents relying on Igabele V. The State (supra) and Ogba V. The State (1992) 2 NWLR (222) 164 @ 198 C – D that all three ingredients must co-exist and the onus of proof is on the prosecution throughout and never shifts.
It must be stated at the outset that the evidence in this case is circumstantial, as no one saw Pa Fadahunsi after he went missing until the headless corpse was exhumed in April 2000. On the nature of circumstantial evidence that would sustain a conviction the Supreme Court held in the case of: Mohammed v. State (2007) 11 N.W.L.R. (Pt, 1045) 303 at327 C-D; 329 D-E; 331 C-F as follows:
“Circumstantial evidence is the proof of circumstances from which, according to the ordinary course of human affairs, the existence of some facts may reasonably be presumed. In other words, it is that evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics.
… It is the narration of surrounding circumstances which by undesigned coincidence is capable of proving with clear-cut accuracy the guilt of the person.
For it to support a conviction in a criminal trial, particularly in murder cases, such circumstantial evidence must be cogent, complete and unequivocal. Indeed, it must be compelling and must be such that leads to only one irresistible conclusion that it is the prisoner and no one else who is the murderer. Those facts narrated, as being the base of circumstantial evidence, must be incompatible with the innocence of the accused and must be incapable of proffering any explanation of any other reasonable hypothesis than that of the guilt of the prisoner … Arguably, circumstantial evidence is often the best evidence in establishing a case of murder.”
The cases of: Akinmoju v. State (1995) 7 NWLR (Pt. 406) 204: Ogundipe v. Queen (1954) 14 WACA 458; Esai v. State (1976) 11 SC 39; Obosi v. State (1955) 1 NMLR 129 were referred to. See also: Ikomi V. The State (1986) 5 SC 313.
It is not in dispute between the parties that the headless body exhumed at Ibisomi Village had decomposed. It was therefore vital for the prosecution to prove beyond reasonable doubt that the corpse was that of Chief Israel Adekunbi Fadahunsi, as this was the only way to establish the first ingredient of the offence of murder.
PW6 carried out the post mortem examination of the corpse. For his evidence to be relevant, it must first be ascertained upon whom the post mortem examination was being conducted.
PW6 testified at page 45 of the record:
“I am a retired Chief Medical Officer in the Ministry of Health of Osun State. … I am now a private medial practitioner. … I remember 19/04/2000. The I.P.O. told me that an examination was to be done at a village near Ilesa. I followed them with the mortuary supervisor. We got to the village around noon on 19/4/2000, we were led by a group of people around 8 – 10 in number to the spot It was a shallow grave under the cocoa tree. When I was called to do the post mortem, I went through the whole body. I found that other areas had decomposed. The decomposition must have spanned between 3 – 6 months. The skeletal parts that were left were intact except the head that was missing. Other skeletal parts were intact I then called upon somebody to identify the body. He is one Gabriel who is a member of the family of the deceased. He identified the tattered clothes and the coloured nails. Other relatives there identified the corpse though I wrote only one name on the report. I later asked them to rebury the corpse. I later wrote my medical report. This is the report which I issued.”
The medical report was admitted in evidence as Exhibit Q.
Under cross-examination by learned counsel for the 1st – 5th accused he stated:
“I was physically present when the grave was dug. The body was not put in container before I did the examination. I inspected the body inside the shallow grave… The fabric of the cloth is guinea brocade … The material on the corpse must have spent about 6 months in the grave.”
Exhibit Q reads as follows:
1. Date and hour of receipt of corpse at mortuary … 19/4/2000 … 12 NOON.
2. Condition of corpse on arrival … ALREADY DECOMPOSING.
3. Mode on which parked (sic) No CLOTH WAS FOUND INSIDE.
4. Date and hour of holding examination … 19/4/2000.
5. Name of deceased (if known) … CHIEF ISRAEL ADEKANMBI FADAHUNSI.
6. By whom identified … MR. GABRIEL FADAHUNSI.
7. Approximate Age … 80 YRS.
8. Sex: MALE.
9. Height, Colour of hair, eyes, peculiar clothing and any other means of identity … 5FT 3INS DECOMPOSING.
10. Probable cause of death …. [blank]
11. Medical Report … A COMPLETELY DECOMPOSED BODY WAS EXHUMATED (SIC) FOR A POST MORTEM EXAMINATION. THE SKELETAL PARTS WERE INTACT EXCEPT FOR THE HEAD THAT WAS MISSING.
I certify the cause of death in my opinion to be … DUE TO REMOVAL OF THE HEAD.”
PW2, Mary Lawrence, Chief Fadahunsi’s grand daughter, testified at page 18 line 32 to page 19 lines 1-4 of the record thus:
“In April 2000, I heard that the deceased was found. We saw the corpse of the deceased in their family land. The corpse was exhumed. I identified part of the cloth on the corpse as that of the deceased. I also identified him with his black toenails, which I had earlier helped him to cut in the hospital. The cloth was the one he wore in the hospital.”
PW10, Adeleke Fagbolade testified at page 75 lines 8 – 9 and 18 – 23 as follows:
‘I know Israel Adekunbi Fadahunsi (the deceased) was my uncle. I saw the corpse and identified it by his feet I could identify him because I was familiar with him. He had long black toenails. Gabriel Fadahunsi is also my uncle. He was also present then at the place where the corpse was discovered. … Gabriel Fadahunsi is now dead. He died on 2/8/04.”
Under cross-examination he stated thus:
“The corpse was brought out of the grave and dropped on the ground. I met the corpse on the ground so I would not know how the doctor examined the corpse. The medical doctor did not examine the corpse in my presence. I saw the long toenails. They are like of a deer (sic). I do not know anything about the cutting of the toe nails in the hospital.”
At page 145 lines 12 – 24 the learned trial Judge made the following observations in respect of Exhibit Q vis-a-vis the oral evidence of PW6, the medical doctor:
1. “While the evidence adduced by the 6th PW was that the corpse was examined at the point of exhumation, the medical report states that the corpse was at the mortuary as at 12 noon on 19/4/2000.
2. While the evidence adduced by the 6th PW is that the corpse was identified through the tattered clothes, Exhibit Q reads that no cloth was found inside.
3. While the evidence adduced by the 6th PW is that the corpse was identified through the coloured toe nails, the medial report reads that the corpse was identified through his height of 5ft 3 ins.”
He held these contradictions to be substantial and fundamental and to have raised doubt about the identification of the corpse.
The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie v. The State (2004) 14 NWLR (893) 257 at 280 A-D; Ikemson V. The State (1989) 2 NSCC (Vol. 20) 471; Onubogu V. The State (1974) 1 All NLR (Part II) 5; Okonji V. The State (1987) 1 NWLR (52) 659.
There can be no doubt that having regard to the crucial factor of the identity of the corpse in this case, unresolved or unexplained contradictions in the evidence of PW6 and his report, Exhibit Q is fundamental and could lead to a miscarriage of justice. I however agree with learned counsel for the appellant that the court ought not to consider the evidence of PW6 alone on the issue of identification. Gabriel Fadahunsi, the person whom PW6 said identified the corpse to him, and whose name he mentioned in Exhibit Q did not testify. However, PW10, Pa Fadahunsi’s nephew, while testifying stated that Gabriel Fadahunsi died on 2/8/04. PW6 testified on 1/11/4. I have considered the contradictions highlighted by the learned trial Judge. There is no doubt that there is a clear contradiction between the oral evidence of PW6 and the contents of Exhibit Q. However the evidence showed that PW2 and PW10 who were very familiar with the old man positively identified the corpse as his by his clothes and black toenails. As for whether the toenails were long or short, PW2 did not state exactly when she cut them. There is also no evidence to establish that the old man died the very day he went missing. I am therefore of the view that contradictions highlighted were not sufficient to create a doubt in the mind of the court that the exhumed corpse was that of Pa Fadahunsi. The prosecution therefore established the first ingredient of the offence of murder. This issue is resolved in the appellant’s favour.
Issues 2, 3 and 4
Whether the trial court was right in holding that the Police must have been responsible for bringing the incriminating materials found in the house of the 1st respondent.
Whether the prosecution discharged the burden placed on it by law of proving the charge against the respondents beyond reasonable doubt.
Whether the learned trial Judge was right in not making any finding on the count of conspiracy against the respondents.
Learned Senior Counsel referred to the evidence of PW4, an Inspector from the Homicide Section of Force CID, Alagbon Close, Ikoyi and DW2, the daughter of the 1st respondent, on how Exhibits E – J2 & K were recovered from the home of the 1st respondent. He submitted that the evidence before the court was that when PW4 and three other officers arrived at the house, they met DW2 who informed them that her father insisted that his lawyer should be present during the search. That they went with DW2 to fetch the lawyer and when they returned they were searched by the lawyer and the 1st respondent’s son before being allowed to conduct the search. That PW4 testified that they were then led to the parlour where the incriminating items were found. He referred to DW2’s evidence in chief to the effect that it was the 1st respondent’s granddaughter who informed them that the Police were around and that she asked them to sit in the sitting room while she went to call her father and that they were alone in the sitting room while she went to call her father. He submitted that under cross-examination she admitted that she did not see any brown envelope with them when they were ushered into the house. He submitted that the learned trial Judge was wrong in law to hold that there was a possibility that the policemen planted the incriminating items in the 1st respondent’s house, which raised doubt in the prosecution’s case. He contended that this position is an admission of fact that the incriminating items found in the 1st respondent’s house belonged to the deceased.
In reply learned counsel for the 1st, 3rd, 4th and 5th respondents referred to the evidence of DW2 and contended that her version of events is more credible. That she testified that she met the policemen at the entrance to the sitting room and asked them to sit while she went to call her father. That they were alone in the sitting room for about 15 minutes before she returned with her father. They told him they had come to interview him. That it was at this point that her father insisted on his lawyer’s presence and she and the policemen then left to get the lawyer. That it was on their return that the policemen were searched before being allowed to conduct their search and that in conducting the search they went straight to the television set and brought out a brown envelope containing some documents. He submitted that she also testified that they did not search any other place in the flat.
Learned counsel submitted that the facts show that the policemen not only had the opportunity to plant all the incriminating items in the 1st respondent’s house but that they actually planted them there, particularly as they did not search any other room in the flat. He argued that if the court holds that the policemen had the opportunity to plant the items, their evidential value became irrelevant contrary to the submissions of Learned Senior Counsel for the appellant in paragraph 5.00 of his brief.
I have carefully considered the evidence of PW4 and DW2 on this issue. The issue to be considered here is whether it is probable that the policemen could have planted Exhibits E – J2 & K in the 1st respondent’s house. It is noteworthy that PW4 testified that the search of the home of the 1st respondent was as a result of information received. The details of the information were not stated save to say “some vital documents which wilt assist the police in the investigation were in possession of one of the accused.” (See page 26 lines 30 -33 and page 27 line 1 of the record). DW2 stated that she left the policemen alone in the sitting room for about 15 minutes while she went to fetch her father. PW4 stated at page 27 of the record:
“On arrival we met the daughter and told her our mission. We then called on the father who insisted that Barrister Wilson Atirene must be present.”
This evidence suggests that there was an interval between the time they met the 1st respondent’s daughter and the time they met the 1st respondent.
It is true that PW2 admitted under cross-examination that she did not see any brown envelope with any of them when they arrived. However it must be said that if there were an intention to plant evidence, such evidence would certainly not be held in plain sight. It is also correct that she and PW4 also testified that the son of the 1st respondent and his lawyer searched the policemen before they were permitted to conduct the search. However, from the evidence before the court the search took place after DW4 and the policemen returned with the 1st respondent’s lawyer. The evidence that the policemen were initially left in the sitting room for, about 15 minutes while DW2 went to call her father was unshaken under cross-examination. She was also unshaken in her evidence that upon their return the policemen went straight to the television set and retrieved the envelope, from under the visitor’s book and did not search any other part of the 3-bedroom flat. I am inclined to agree with the leaned trial Judge that the policemen had the opportunity to plant the exhibits in the 1st respondent’s house and that doubt was thereby created, which was rightly resolved in the 1st respondent’s favour.
Assuming I am wrong in this view, and having regard to the fact that this is not the final court, the evidential weight to be attached to the recovered items shall be considered when dealing with the submissions of learned Senior Counsel for the appellant on proof of conspiracy and the second ingredient of the offence of murder, i.e. that the act or omission of the accused caused the death of the deceased and was unlawful.
The search warrant and the items recovered from the 1st respondent’s house were admitted in evidence as follows:
“Court: The search warrant dated 1/12/2000, the letter written by Baba Tope dated 29/6/2000, the undated letter written by Iwarefa in English, the partly burnt picture (black and white), the letter dated March 2000 (typewritten in Yoruba), a copy of Saturday Tribune (page 11) of 25/12/99 and a ring with the inscription of Asolo are admitted in evidence as Exhibits D, E, F, G, H, J, J1, and J2 respectively.”
At paragraph 5 of his brief of argument learned Senior Counsel for the appellant submitted thus:
“There was evidence that the 1st respondent had some grievances against the deceased. Furthermore incriminating documents were found in the house of the 1st respondent and a ring belonging to the deceased man was also found. There is abundant evidence that the deceased, Pa Fadahunsi wore a ring with the insignia “Asolo”. The defence attempt to cast doubt on who an Asolo is cannot be used to sweep away the cogent evidence which led to the guilt of the 1st respondent. The old man was an Asolo, any attempt to lead evidence to the contrary was an afterthought. And this should not be accepted by the Court.”
He referred to the evidence of PW2 that Pa Fadahunsi always wore a Chieftaincy ring with Asolo inscribed on it and the evidence of the 1st respondent that Asolo Chieftaincy is not peculiar to Ilase alone and submitted that the evidence was conclusive that the ring recovered belonged to Pa Fadahunsi. He submitted that it was also not part of the case of the 1st respondent that there was more than one Asolo in Ilase or that one Michael Olayemi could be the owner of the ring. He submitted that the 2nd, 3rd, 4th and 5th respondents were seen around the vicinity on the material date and that there were letters written by the Iwarefas implicating the accused persons. He submitted that the 2nd and 3rd respondents are Iwarefas, the 4th respondent is a traditional healer while the 5th respondent is a Prince and brother of the 1st respondent. He submitted that there was evidence that the 1st respondent and Pa Fadahunsi had a bitter quarrel over a piece of land and that there was evidence that the 1st respondent once slapped a town-crier, an act regarded as a taboo. He submitted that Exhibit 25, written by the 1st respondent was incriminating against the respondents.
As regards the 4th respondent, he submitted that his alibi failed and yet the court held that the fact that he lied about his whereabouts does not point to his guilt. He referred to: Awopejo V. The State (2000) 6 NWLR (559) 1 @ 17; Akpan V. The State (2002) 12 NWLR (780) 189 @ 203; Nwabueze V. State (1985) 4 NWLR (86) 16 and Ozaki V. The State (1990) 1 NWLR (124) 92, and submitted that the 4th respondent ought to have been found guilty of conspiracy and murder.
As regards the 6th respondent, he submitted that he was the owner of the hospital where Pa Fadahunsi was admitted and that there was no other patient at the hospital, He submitted that the evidence of PW2 to the effect that one Nurse Omilabu was with him when she left to go and fetch his driver cannot cast any doubt on the prosecution’s case. He submitted that there was overwhelming evidence of conspiracy to murder against the respondents.
Relying on the case of State V. Uzuagwu (1979) 2 ECS LR 249; Igabele V. State (supra) and Akinmoju V. State (2000) 6 NWLR (662) 608 @ 626 E, he submitted that in a case of conspiracy to murder, the prosecution must establish an unbroken link between the act of the accused and the death of the deceased. He submitted that the circumstantial evidence led by the prosecution was substantial and cogent and ought to have been accepted by the court.
On the charge of conspiracy, learned Senior Counsel submitted that there was copious evidence tending to show beyond reasonable doubt that all the respondents had a common intention to commit the crime, He submitted that the role of each respondent in the disappearance of the old man and the late exhumation of a headless body identified by his coloured toes invariably led to an offence of conspiracy and murder. He relied on the case of Oduneye V. The State (2001) 2 NWLR (697) 311 @ 325.
In reply, learned counsel for the 1st, 3rd, 4th and 5th respondents submitted that assuming without conceding that the exhumed corpse was established to be that of the missing man, there was no evidence as to the cause of death. He submitted that the prosecution has the burden of establishing the cause of death unequivocally. He referred to: Udosen V. The State (2007) 1 SCNJ 482 @ 492; Sule Ahmed (Alias Eza) V. The State (2001) 12 SCNJ 1 @ 7: Iheanyigbi Apugo V. The State (2006) 7 SCNJ 587 @ 607. He submitted that the cause of death as stated in Exhibit Q is vague and inconclusive. He argued that the deceased could have been killed in many different ways before the head was removed, including suicide. He referred to the evidence of PW2 under cross-examination when she stated that Pa Fadahunsi asked what he was waiting for on earth. He submitted further that there is no evidence of any act of the respondents that caused the death of the deceased.
He submitted that there was no evidence that there was a quarrel between the 1st respondent and the missing man. He submitted that Exhibits Z7-9 show clearly that the dispute about the Chieftaincy farmland is between a branch of Aro family of Ilase represented by one Ali Fagbolade on the one hand and the 1st respondent on the other. He submitted that the evidence of the 1st respondent that he did not know Pa Fadahunsi and that it was his senior brother, Ali Fagbolade that he sued was not controverted.
On the charge of conspiracy he submitted that to succeed on this issue of common intent, the prosecution must show what the common intent was and how it was hatched and executed. He contended that there was no such evidence before the court. He relied on the case of Mumuni & Ors. V. The State (1975) 6 SC 79 @ 93.
Learned counsel for the 2nd respondent also argued that there was no conclusive evidence of the cause of death. He submitted that there was no evidence linking the 2nd respondent with the death of Pa Fadahunsi. He stated that the 2nd respondent was shown to be an Iwarefa of Ilase and submitted that the undated and unsigned allegedly incriminating letter found in the house of the 1st respondent (Exhibit F) was demolished by the evidence of DW1, Supt. of Prisons) who explained the procedure adopted when a detainee writes a letter from the prison. He submitted that none of the steps was followed with regard to Exhibit F and that DW1 stated under cross-examination that the letter is not an official letter from the prison. He submitted that there is no evidence on record to substantiate the submission of learned Senior Counsel for the appellant that the 2nd respondent or 3rd, 4th and 5th respondents were seen around the vicinity of the hospital. He submitted that the prosecution failed to prove both counts of the charge against the 2nd respondent.
Learned counsel for the 6th respondent submitted that the respondent ought not to have been charged in this case at all, submitted that there was no evidence of a quarrel between him and Pa Fadahunsi. He submitted that on the contrary the old man had been his patient for 17 years and was known as the 6th respondent’s father. He submitted that the fact that he was last seen at the 6th respondent’s hospital was not sufficient ground to charge him with the offence having regard to his evidence under cross-examination to the effect that the old man had a history of discharging himself from the hospital since he became his patient. He submitted that his evidence that he discharged himself on the day he went missing was not contradicted or shaken under cross-examination and ought to be accepted as the correct version of events. He relied on several authorities including: Oduneye V. The State (supra) and Bello V. Eweka (1981) 1 SC 101.
On what constitutes conspiracy he referred to: Harb V. F.R.N. (2008) ALL FWLR (430) 705 @ 729. He submitted that there was no evidence from which conspiracy with the other respondents could be inferred. He submitted that all the respondents stated that they did not know the 6th respondent before this case.
Referring to the ingredients for the offence of murder, he referred to the case of: Esai & Ors. V. The State (1976) 11 SC 39 where the Supreme Court held that for circumstantial evidence to ground a conviction it must lead to only one conclusion i.e., the guilt of the accused and that where there are other possibilities as to who might have committed the offence or that there were others who had the opportunity of committing the offence the accused cannot be convicted of murder. He submitted that from the evidence there are many possibilities of what could have caused the death of the deceased. He referred to some of those highlighted by the learned trial Judge and submitted that the prosecution failed to prove that the 6th respondent caused the death of the deceased.
In reply, learned counsel for the appellant submitted that conspiracy could be proved through correspondence and relied on Exhibits E – J. He submitted that the exhibits incriminate the 1st – 5th respondents. He also relied on Okeke V. The State (1999) 2 NWLR (590) 246 @ 266. With regard to the 4th respondent he referred to the evidence of PW7 and maintained that the prosecution disproved the 4th respondent’s alibi, With regard to the 6th respondent he referred to the evidence of PW5 and submitted that conspiracy could be inferred from his conduct. He also maintained that the deceased was last seen at the 6th respondent’s hospital.
I had earlier observed in the course of resolving the first issue that the evidence in this case is entirely circumstantial. For the purpose of emphasis, I restate part of the decision in Mohammed V. The State (supra) on the nature of circumstantial evidence that would lead to a conviction:
“For it to support a conviction in a criminal trial, particularly in murder cases, such circumstantial evidence must be cogent, complete and unequivocal. Indeed, it must be compelling and must be such that leads to only one irresistible conclusion that it is the prisoner and no one else who is the murderer. Those facts narrated as being the base of circumstantial evidence, must be incompatible with the innocence of the accused and must be incapable of proffering any explanation of any other reasonable hypothesis than that of the guilt of the prisoner … Arguably, circumstantial evidence is often the best evidence in establishing a case of murder.”
Learned counsel for the respondents has argued that the cause of death as stated in Exhibit Q is inconclusive and that there are many other possibilities as to how the deceased met his death. The law is settled that while the prosecution has a duty to prove its case beyond reasonable doubt, there is no duty to prove its case beyond the shadow of a doubt. In the present case, I am of the view that the cause of death as stated in Exhibit Q i.e. the removal of the head is credible in the circumstances of this case. In other words, once a person’s head is removed there can be no life. The crucial issue for determination is whether the respondents were linked with the death of the deceased and the circumstances of his death.
As regards the 1st respondent, the evidence of PW1, Thomas Ajayi Ogunfolabi, was that he is a nephew-in-law of the deceased. He stated that the 1st respondent is the reigning Oba of Ilase; the 2nd respondent is the next in rank and the 3rd respondent is the Aro of Ilase and one of the kingmakers. That the 4th and 5h respondents were very well known to him while the 6th respondent was a personal friend. He testified that the deceased and the 1st respondent did not have a cordial relationship because the deceased did not support the 1st respondent’s candidature to the stool of Lojaship of Ilase and refused to allow the 1st respondent to enjoy some of the perks of his office, such as access to the farmland and allowing him to stay in the Aro’s compound. He testified that the 1st respondent sued the Aro family for denying him access to the land. That the case was to be heard before the Customary Court, Ilase on 20/10/99 but the deceased went missing on 6/10/99. Exhibits Z2, Z4, and Z7 – Z9 were tendered to prove the fact of the litigation and animosity between the 1st respondent and the deceased.
In his evidence in chief the 1st respondent testified at pages 112 – 114 of the record as follows:
“There is a chieftaincy farm which is to be enjoyed by the incumbent Oba. But I was installed Aro family wrote to warn me not to go on the land. I am the 13th Loja of Ilase. The previous Lojas enjoyed the farmland. They wrote the letter because they were not happy that their candidate was not installed. I was installed by my community… One Aderibigbe Omiru Salebe contested the chieftaincy with me. He was installed as Loja of Ilase by Owa Obokun of Ijesaland. When this happened I went to the Governor who then published my name in the Gazette. Salebe instituted an action against me in the High Court He has now appealed to the Court of Appeal. Salebe is alive. The Loja Chieftaincy land does not belong to Aro family. In Ilase Aro family has three branches. The 3 branches did not join hands together to attack me on the farm. Ali Fagbolade wrote a letter to me warning me not to go on the Chieftaincy land again… He wrote one of the letters himself and the other through his lawyer, Prince Adeyeye Adelekun. … I caused my lawyer Ade Adedeji to reply the two letters.”
The letters were admitted in evidence as Exhibits Z7 – Z9. The 1st respondent continued:
“After the letters we went to court, I sued Ali Fagbolade. I do not know Israel Fadahunsi, I did not sue him. I sued his senior brother Aro Ali Fagbolade. I had no quarrel with Israel Fadahunsi. … I heard that Israel Fadahunsi slapped a town crier. The implication traditionally is banishment. I did not want this so I caused a letter to his son to appeal to his father not to trouble the community. The town crier came to me to report the incident. I had no relationship with Israel Fadahunsi. I heard that Israel Fadahunsi was Asolo Omo. Asolo Omo chieftaincy is honorary. It is not a traditional title. He does not come to the palace.”
Under cross-examination by learned counsel for the prosecution he stated that he instituted his action against the Fagbolade family and was not aware that Israel Fadahunsi succeeded Fagbolade.
I have examined Exhibits Z7 – Z9, which were written in 1995.
There is no doubt that they show that there was a dispute between the 1st respondent, the Loja of Ilase-Ijesa and the Aro Chieftaincy Family of which Chief Ali Fagbolade was the head, as Aro of Ilase. There is no mention of Israel Fadahunsi in any of the letters and there is no suggestion of any personal dispute between him and the 1st respondent. I have also examined Exhibit 22, the letter dated 27/05/96 signed by PW9, the Ilase Community secretary and addressed to Francis Fadahunsi the son of Israel Fadahunsi informing him of the slapping of the town crier and complaining of his father’s “uncompromising attitude Ilase Community has been enduring”. PW9 admitted that he signed the letter on the instructions of the 1st respondent. The letter concluded by saying that since Francis’s father and mother had taken steps to make amends, the community had decided to take a lenient view of the matter. I am not satisfied that these exhibits indicate in any way that the 1st respondent had a personal axe to grind with the deceased.
The prosecution also relied on Exhibits E – J2 and K as incriminating the 1st respondent. Exhibit E is a hand-written letter dated 29/6/2000 written in Yoruba language signed by one “Baba Tope.” It is addressed to “Kabiyesi” (Royal Highness). It is translated in Exhibit R2. It is to the effect that the said Baba Tope had visited the chiefs’ in detention at Alagbon. That they were in bad shape and complaining that they had been abandoned. It also contained some instructions allegedly from the 4h respondent to hide incriminating evidence and to take care of the drivers. Exhibit F is an undated letter stated to be from Ilesa Prison addressed to “Loja” and signed by “Iwarefa” also complaining of being abandoned and threatening to confess all. Exhibit H is a typed anonymous letter dated March 2000 addressed to Aro-Mogbe Family of Ilase-Ijesa. It is written in Yoruba Language. It is translated in Exhibit R1. It seeks to inform the family that the writer witnessed some people burying something at Ibisomi, which he suspected to be the body of the chief who had been declared missing. Exhibit G is the partially burnt photograph of the deceased while Exhibits J1 and J2 are photocopies of some pages of the Saturday Tribune of 25/12/99 with an article on the mysterious disappearance of the deceased.
Reviewing these exhibits, the learned trial Judge held at pages 148 – 149:
“It is unclear who the writers of the letters are. There is no evidence before me that any of the accused has a child by name Tope. Exhibit E was written by Baba Tope. Exhibit F is a letter written by Iwarefa at Ilesa Prison. The 1st accused is not an Iwarefa. The 6th accused is also not an Iwareh. Who then are Iwarefas? Who were in Ilesa Prison? The 3rd accused, Lamidi Ladokun provided the answer. He said, “The chiefs in Ilase are Orisa, Odofin, Saro, Aro, Ejemu, Asolo, Sajiku and Saba. They are the High Chiefs called Iwarefa. I am the Aro of Ilase…Sajiku was dead. Odofin and Saro were dead then. Only 3 of the Iwarefas were arrested by the police out of the 5 who were alive. Orisa, Aro and Asolo are the ones arrested. Asolo is at Ilase. He was released at Ede when we were being taken to Alagbon Police Headquarters. We were arrested at Ilase. I do not know how Asolo was released but he was released on the second day of our arrest.” Since this evidence was not challenged by the prosecution under cross-examination, I accept it as true. The meaning is only (Aro) and Orisa were the Iwarefas in prison. Could the letters have been written by them? None of them agreed to have written them. There is no handwriting expert’s analysis to link them with the letter.”
I have examined the evidence of PW4 whose team recovered the exhibits referred to above. He stated under cross-examination that he was not able to find the authors of Exhibits E, F and H and since he could not find the author of Exhibit F he did not visit Ilesa prison. Furthermore, DW1, Samuel Sunday Olagunju, Superintendent of prisons testified on subpoena. He testified at page 94 lines 33 – page 95 lines 1 – 10 thus:
“1st D.W.: Supt. of Prisons – Samuel Sunday Olagunju. Sworn on Holy Bible, states in English. I am a Prison Official. I am here on subpoena. My station is Nigeria Prisons Service Ilesa. There are inmates in the Prison. I see Exhibit F. I have been serving in the Prison for the past 15 years. Before a letter is sent out or brought in there is a protocol. If an inmate wants to send a letter out the inmate must consult the welfare department who will give the inmate writing material. The welfare department will censor it with the stamp of the Nigeria Prisons. The welfare officer will append his signature over it. We use our letter headed papers to write such letters. There is no stamp of the Prisons. There is no signature of any official there; Exhibit F is not from Ilesa Prison.
His evidence was not discredited under cross examination. He was a neutral witness. I am of the view that the learned trial Judge was correct not to place any evidential value on those exhibits.
PW2 and PW10 testified that the deceased always wore a ring with “Asolo” inscribed on it. They identified Exhibit K as his ring. The learned trial Judge held that there was evidence before the court that one Michael Olayemi is an Asolo in Ilase. In other words, that it was not proved with certainty that Exhibit K belonged to the deceased. Learned counsel for the appellant submitted that the contention that there was another Asolo in Ilase was an afterthought. The 2nd and 3rd respondents both testified that only three out of the five Iwarefas were arrested, Orisa, Aro and Asolo but that Asolo was released on the second day of their arrest. The 2nd respondent is the Orisa of Ilase while the 3rd respondent is the Aro. The 3rd respondent testified at page 96 of the record as follows:
“The missing man was Asolo Omo Owa and the other Asolo is Michael Olayemi. The missing man’s title is honorary while that of Michael Olayemi is that of Iwarefa.”
They were not cross-examined on this aspect of their evidence.
With regard to Exhibit K the learned trial Judge held thus at page 149 of the record:
“A ring on which the name Asolo is inscribed was also recovered from the house of the accused. There is abundant evidence to show that one Michael Olayemi is an Asola in Ilase.”
The uncontroverted evidence that three Iwarefas were arrested but one was released and the fact that the person released was an Asolo, coupled with my earlier finding that the 15 minutes spent in the 1st respondent’s sitting room by PW4 and his team before the 1st respondent came to meet them are unaccounted for, to my mind raises some doubt as to whether the ring found in the house of the 1st respondent was indeed that of the deceased.
I am therefore of the view that reasonable doubt had been raised in the case against the 1s respondent, which was properly resolved in his favour.
I have given careful consideration to the evidence against the 2nd, 3rd, 4th and 5th respondents. It is abundantly clear from the evidence that the only reason the 2nd and 3rd respondents were arrested is because the 2nd respondent is the second in command to the 1st respondent while the 3rd respondent is a kingmaker. In other words, they are Iwarefas. The prosecution was unable to link them to Exhibits E and F. The 5th respondent is the 1st respondent’s older brother. There was no evidence that any of them had any axe to grind with the deceased. There was no evidence of any plan hatched to do away with the deceased. I have held earlier in this judgment that Exhibits Z7 to Z9 do not constitute proof of personal animosity between the respondents and the deceased.
This is a case of suspected ritual murder. The 4th respondent testified that he is a member of Obokun/Oriade Traditional Healers Association. He denied being a herbalist. He gave an alibi that he was called to the Ministry of Works and Water Resources Ede by his boss, one Mr. Moshood Oyeyemi on 6/10/99. The alibi was investigated. The said Mr. Oyeyemi (PW7) denied that he sent for him on that day. In the instant case, the question is whether the fact that the alibi of the 4th respondent was disproved, raises the inference of his guilt in the circumstances of this case. The 4th respondent was not shown to have been within the vicinity of the hospital from which the deceased disappeared. He was also not alleged to be the herbalist who prescribed treatment for the deceased. PW2 who was with the deceased when the herbal medicine was administered on him did not identify the 4th respondent as the person who administered same. There was no evidence that the 1st – 5th respondents were aware of the deceased’s hospitalisation. It was held in the case of: Okpere V. The State (1971) 1 ALL NLR 1 @ 5 that the fact that a person has told lies it does not relieve the prosecution of the burden of proving the guilt of the accused of the offence charged beyond reasonable doubt. See also: Haruna & Anor. V. The Police (1967) NMLR 145 @ 153; Ogidi V. The State (2005) 5 NWLR (918) 286 @ 318 F – H. It has been held that mere presence at the scene of crime does lot, as a matter of law, render the person so present guilty of the crime. There must be clear evidence that either prior to or at the time of commission of the crime, the person present did something or omitted to do any act such as aiding or abetting to facilitate the commission of the offence. See: Orji V. The State (2008) 10 NWLR (1094) 31 @ 54 E – F; 55 B; Mohammed V. The State (1991) 5 NWLR (192) 438; Oguntana V. The State (1995) 5 NWLR (395) 266. In the instant case it was not established that the 4th respondent was at the hospital. The scene of the crime is not known. The circumstances in which the deceased met his death are not known. The prosecution therefore had to go further to establish the nexus between the 4th respondent and the commission of the crime. In my humble view they failed to discharge the burden.
With regard to the 6th respondent, PW3, Sgt. Wilson Mereti of State CID Osogbo stated under cross-examination that he arrested him because the deceased was last seen at his hospital. It is the contention of the prosecution that the admission of the deceased at the 6th respondent’s hospital, the treatment with herbal medicine and his subsequent disappearance was all part of a grand scheme hatched by the respondents to eliminate him because of the chieftaincy dispute.
There is no evidence to show that any of the 1st – 5th respondents knew the 6th respondent before the incident. The uncontradicted evidence before the court was that the deceased was a long-standing patient of the 6th respondent and that PW1, his nephew-in-law often accompanied him when he went for treatment. He testified that upon the suggestion of the 6th respondent, he and other members of the family agreed that herbal medicine should be used to treat the deceased. He however admitted that Francis Fadahunsi, the son of the deceased was not aware of this. He stated that he noticed some improvement in the deceased’s health after he received the herbal medicine. It was later in the day on 6/10/99 that the 6th respondent informed him that the deceased was missing.
The prosecution led evidence through PW5, Olawale Oladejo, a Customs Officer in an effort to establish a link between the 6th respondent and the death of the deceased. He stated that he was the Chief Security Officer to Francis Ade Fadahunsi, son of the deceased. PW4 had testified earlier that Francis Fadahunsi was the Assistant Controller General of Customs. PW5 testified that Francis Fadahunsi handed him over to one James, a policeman to assist him with the investigation. The James referred to was ASP Michael James who testified as PW8, PW5 testified that he told PW8 that he knew one Oginni who claimed to be the head of OPC in Ilesa and that after discussions with the said Oginni he was invited to one of their meetings. This was in March 2000. Oginni allegedly informed him that he had found the driver that was used to kidnap the missing man. He testified as follows at page 38 of the record:
“Bayo finally came I took him in my vehicle to Ireti-Ayo Hospital where he said he had some money to collect from the 6th accused. He said it was the cost of hiring his vehicle. When we got to Ireti-Ayo Hospital he entered the hospital but I did not know what he discussed with the 6th accused. The 6th accused came with Bayo and gave Bayo N2000. He introduced me to him as his friend. We then went to Ilase (Bayo and I). He led me to a place about 2km to Ilase inside a bush. There is a village close to a cocoa farm in the area. He showed me a place close to one Araba tree. Already there were yams growing on the place. I then went back to the Mr. James to show him where I was shown. He went to report to the police for reinforcement. I called my boss Fadahunsi who also sent some people. They started digging. One of the diggers pulled out the torn cloth and the bone. … It was the junior brother of the deceased that identified the cloth and the leg of the deceased. Police were detailed to guard the place and authority to exhume the corpse was obtained.”
Under cross-examination by learned counsel for the 1st – 5th accused at page 39 lines 17 – 19 of the record he stated:
“Bayo has absconded because he said his life was in danger. I do not know the reason why the 6th accused gave Bayo N2000 but I only know what Bayo told me.”
Under cross-examination by learned counsel for the 6th accused he stated:
“Oginni is dead. Oginni was my friend. I have helped him in the course of my duty. I know him only as Oginni. I only know Bayo as Bayo alone… When Bayo entered Ireti-Ayo Hospital I was outside. I cannot say which room they entered … The Police search for Bayo to no avail.”
ASP James (PW8) testified that a case of kidnapping and suspected ritual murder was reported by Mr. Francis Fadahunsi to the Inspector General of Police and referred to his team at Force CID Alagbon, Lagos for investigation, He stated that the complainant had alleged that the Oba of Ilase and his Iwarefas were the brains behind the disappearance of his father because of a chieftaincy dispute and also that PW1 had conspired with one Selia Fagbolade to lure his father to the 6th respondent’s hospital. He testified as to how he obtained the statements of the 1st – 5th accused and other steps taken in the investigation.
With regard to the evidence of Olawale Oladoja he stated at page 62 of the record:
“Olawale PW6, the Custom Officer told me that Oginni and Bayo assisted him in recovering where the deceased was buried but all efforts made for him to produce them proved abortive. I looked for Bayo but could not get him.”
My first observation is that the Bayo mentioned by PW5 (or PW6, as the case may be – there was some mix-up in the numbering of the witnesses) was a vital witness in this case whose testimony would have been of immense assistance in unravelling this case. According to the witness, not only was Bayo’s vehicle used to kidnap the deceased, he also knew where the body was buried. The contention that it was the 6th respondent who hired the vehicle is hearsay as PW5 stated that it was what he was told by Bayo, who was nowhere to be found. It also seems very strange that the said Bayo, who did not know PW5 before he was introduced to him by Oginni, would wait for his arrival before collecting his fee for the hire of his vehicle more than six months previously. PW5 stated that he did not accompany Bayo into the hospital and did not know what he and the 6th respondent allegedly discussed. It is also strange that after a discussion inside the hospital, the 6th respondent would accompany him outside and pay the money there. Bayo’s identity was not established.
I am of the view that the evidence of the said Bayo would have provided the link if any between the act of the 6th respondent and the death of the deceased. The failure to call him cast serious doubts on the prosecution’s case. While it is trite that the prosecution is not expected to call a host of witness to prove its case, the failure to call a material witness would be fatal to its case. See: Usufu V. The State (2007) 1 NWLR (020) 94 @ 117 – 118 H – E; (2008) ALL FWLR (405) 1731; Akawo V. The State (2011) ALL FWLR (597), 624 @ 640 F – G.There is no doubt that the circumstances of the disappearance of the deceased from the 6th respondent’s hospital raise many unanswered questions. What happened to him after he left the hospital? How did he leave the hospital? Did he walk out or did someone come into the premises to kidnap him? Where was he killed? Who severed his head? The prosecution had the burden of establishing a link between the respondents and any of these factors.
The 6th respondent testified that one Nurse Yemisi Omilabu was on duty on the morning of 6/10/99. PW4 stated under cross-examination at page 33 of the record that he arrested the said Yemisi Omilabu but she was “dropped” by the DPP. Her evidence could also have shed light on the case. The presumption that the person last seen alive with the deceased must be the murderer is a rebuttable one.

It is also trite that a trial Judge or a court must be slow or reluctant to draw probabilities from evidence, especially where the accused is charged with a capital offence, See: Okeke V. The State (1999) 2 NWLR (590) 246 @ 275 B – D; 278 C – D; 281 D – E.
In order for the circumstantial evidence to lead to a conviction it must be so cogent and unequivocal as to point to no other direction but the guilt of the accused. The quality of the evidence must be such as to leave no reasonable grounds for speculation that some other person other than the accused committed the offence. See: Akinmoju V. The State (2000) 6 NWLR (662) 608 @ 626 D – E. In the instant case I am of the view that the circumstantial evidence was not cogent or compelling enough to lead irresistibly to the conclusion that the respondents committed the offence of murder. I am of the view that they were rightly discharged and acquitted of this count.
With regard to the charge of conspiracy, it is trite that it is seldom proved by direct evidence. In Obiakor V. The State (2002) 6 SC (part II) 3.3 @ 39 – 40 the Supreme Court held per Kalgo, JSC:
“Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.” (Emphasis mine)

On the nature of proof required to establish criminal conspiracy, Achike, JSC had this to say in Oduneye V. The State (2001) 1 SC (part I) 1 @ 6-7:
“A conviction for conspiracy is not without its inherent difficulties. First the offence of conspiracy is not defined under the Criminal or Penal Code. But perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is “evidence not of the fact in issue but of other facts from which the fact in issue can be inferred… Evidence in this connection must be of such quality that irresistibly compels the court to make an inference at to the guilty of the accused.” (Emphasis mine)
See also: Patrick Njovens V. The State (1973) 5 SC 17; Dabo & Anor. V. The State (1977) 5 SC 22: Kaza V. The State (2008) 1 – 2 SC 151 @ 164 – 165.
In the instant case, I am of the view that the circumstantial evidence led in this case did not establish beyond reasonable doubt that there was a meeting of the minds or that the respondents acted in concert to commit the alleged offence. In the judgment appealed against the learned trial Judge held that the prosecution failed to prove any of the counts of the charge against the accused persons and found them not guilty of the said counts. Contrary to the contention of learned counsel for the appellant, he made findings on both counts of the charge. This is a case that was founded on suspicion. The law is settled that suspicion no matter how high cannot ground criminal responsibility. See: Orji V. The State (supra) @ 47 H; 55 B – C; Iko V. The State (2001) 14 NWLR (732) 221.
The effect of my findings above is that the prosecution failed to establish its case against the respondents beyond reasonable doubt. I hold that the appeal lacks merit. It is hereby dismissed. The judgment of the lower court discharging and acquitting the respondents on both counts of the charge is hereby affirmed.

CHINWE E. IYIZOBA J.C.A: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree with the reasoning and conclusions therein. The prosecution in this unfortunate murder trial had only circumstantial evidence to work with. An old man disappeared in a hospital in Ilesa and a headless Corpse was exhumed in another town Ilase. The prosecution’s difficulty started with adducing convincing evidence to link the missing man with the exhumed headless corpse. The evidence led by the witnesses was contradictory. “In order to sustain a conviction based on circumstantial evidence, the circumstances relied upon by the prosecution must lead conclusively and indisputably to the guilt of the accused person” Per Oguntade JSC Orji V. The State (2008) 10 NWLR (Pt. 1094) 31. If the circumstances give room for other explanations or possibilities other than the guilt of the accused, then conviction cannot be based on such circumstantial evidence. There is always the possibility that such circumstantial evidence could be fabricated in order to cast suspicion on an innocent person. All these issues were very ably and meticulously considered in the leading judgment. I agree that the circumstantial evidence was not cogent or compelling enough to lead irresistibly to the conclusion that the respondents committed the offence of murder. The prosecution failed to prove the case against the respondents beyond reasonable doubt. I too hold that the appeal lacks merit and ought to be dismissed. I dismiss it and confirm the judgment of the lower court discharging and acquitting the respondents.

MOORE A. A. ADUMEIN J.C.A: I read before now the judgment just delivered by my learned brother, KEKERE-EKUN, JCA. His Lordship has meticulously analysed and discussed the issues that arose for determination in this appeal. I entirely agree with the reasoning and conclusion in the leading judgment, my little contribution is for the sake of emphasis only.
As rightly stated in the leading judgment, the evidence adduced by the prosecution in this case is completely circumstantial. In such a circumstance the evidence must be scientifically or mathematically accurate, pointing conclusively to only one direction, namely: the guilt of the accused person, leaving no room or opportunity for any other person than the accused to have committed the offence charged. See IJIOFOR V. THE STATE (2001) I NWLR (Pt.718) 371 at 383; FATOYINBO v. ATTORNEY-GENERAL OF WESTERN NIGERIA (1966) WNLR 4; ADIE V. THE STATE (1980) 1-2 S.C.116; UKORAH V. THE STATE (1977) 4 S.C. 167; AIGBADION V. THE STATE (2000) 7 NWLR (Pt.666) 686 and NWEKE V. THE STATE (2001) 4 NWLR (Pt.704) 588 at 600.
In the present case, the circumstantial evidence relied upon by the prosecution is mutilated by unexplained contradictions that create very reasonable doubt as to the guilt of the accused persons/respondents. It is trite that any reasonable doubt, in a criminal trial, must be resolved in favour the accused. The evidential burden of proof placed on the prosecution is to prove every criminal allegation or accusation beyond reasonable doubt. See ODUNEYE V. THE STATE (2001) 2 NWLR (Pt.697) 311 at 328 where the Supreme Court, per ACHIKE, JSC, held thus:
“It is now trite that in all criminal cases, without exception, the prosecution have the heavy responsibility to prove the offence preferred against the accused beyond reasonable doubt. See: Okpulor v. State (1990) 7 NWLR (Pt.164) 581 at 593 and Seneviratne v. R (1936) 3 All E. R. 36.”
For these reasons and the comprehensively commanding reasons in the lead judgment, I too dismiss this appeal for lacking merit.
I abide by the consequential orders in the leading judgment.

Appearances

N. O. O. OKE, SAN and O. S., AKINBODEFor Appellant

AND

OLUWOLE ELUDOYIN
M. A., ODETUNDE, ESQ.,
O. ABIMBOLUFor Respondent