TOPE OLATUNJI v. THE STATE
(2019)LCN/13353(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/AK/68CA/2017
RATIO
CRIMINAL LAW AND PROCEDURE: HOW TO PROVE GUILT IN CRIMINAL LAW
Generally in criminal law, the guilt of an accused person can be proved by one of three ways:-
1. The confessional statement of the accused person;
2. Circumstantial evidence and
3. Evidence of eye witness of the crime.
See: IGABELE V STATE (2006) 6 NWLR PT 975, 100.PER PATRICIA AJUMA MAHMOUD, J.C.A.
CIRCUMSTANTIAL EVIDENCE: DEFINITION
Circumstantial evidence is defined in MOHAMMED V STATE (2007) 13 NWLR, PT 1050, 186 AT 204 as an evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics..
This is perhaps why it is often referred to as the best form of evidence. See also OKPAKO V STATE (2018) LPELR 43875 (SC) and AMOS V STATE (2018) LPELR 44694.PER PATRICIA AJUMA MAHMOUD, J.C.A.
CONSPIRACY PROCEEDINGS: WHETHER THE STATEMENT OF ONE CONSPIRATOR IN THE ABSENCE OF OTHERS IS ADMISSBLE
In the case of NWOSU V STATE (2004) 15 NWLR PT 897, 466 this Court held that;
in a conspiracy proceeding, evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that, if they are all conspirators what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it might have been said in the absence of the other conspirators.PER PATRICIA AJUMA MAHMOUD, J.C.A.
COMMON INTENTION: THE EFFECT WHEN ESTABLISHED
This provision is akin to common intention in criminal law. Where common intention is established, a fatal blow or gunshot though given by one of the parties is deemed in the eyes of the law to have been given by all those present and participating. See the Supreme Court cases of NWANKWOALA V STATE (2006) 14 NWLR, PT 1000, 663; ADEKUNLE V STATE (1989) 5 NWLR, PT. 123, 505; OYAKHIRE V STATE (2006) 15 NWRL, PT. 1001, 157 and ALARAPE V STATE (2001) 5 NWLR, PT. 705, 79.PER PATRICIA AJUMA MAHMOUD, J.C.A.
IT IS IMMATERIAL TO PROVE WHAT ACCUSED PERSONS DID IN THE ACTUALIZATION OF THE PRE-CONCEIVED COMMON PURPOSE
In other words it is immaterial to prove what each of the accused persons did in the actualization of their pre-conceived common purpose. See NWANKWOALA V STATE (SUPRA) AND OYAKHIRE V STATE (SUPRA).PER PATRICIA AJUMA MAHMOUD, J.C.A.
COMMON INTENTION: IN PRACTICAL TERMS , IT IS DIFFICULT TO PROVE CONSPIRACY
In practical terms, it is difficult if not impossible to prove common intention, like it is difficult to prove conspiracy. Its existence can only be inferred from the circumstances disclosed. See again the case NWANKWOALA V STATE (SUPRA).PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: THE TRIAL COURT CAN ACT ON THE EVIDENCE OF A WITNESS WHERE IT IS UNCHALLENGED AND UNCONTROVERTED
The law is well settled that the trial Court is entitled to act on the evidence of a witness where such evidence is unchallenged and uncontroverted. See the apex Court cases OMOREGBE V LAWANI (1980) 3-4 SC, 108 and MATTHEW V STATE (2018) LPELR – 44070 (SC) NWEZE, JSC in deciding on the effect of unchallenged/uncontroverted evidence held that:
It is well known that where evidence of a witness is uncontradicted and unchallenged, the Court would relate it to the applicable law………PER PATRICIA AJUMA MAHMOUD, J.C.A.
MURDER: WHETHER A COURT CAN STILL CONVICT A PERSON OF MURDER WHEN THE CORPUS DELICTI (BODY) EVEN WHEN THE BODY HAS NOT BEEN FOUND
On the contention of the appellant that the headless body found in the soak away was never identified as that of the deceased Jacob Ajayi not even by PW1, his father, I find that such misgivings have been adequately answered by the Supreme Court in the case of OBIDIKE V THE STATE (2014) 7 SCM 104 AT 137-139 PARAS 1, A – I & A-C:
The first is the fact that the body of the deceased (the corpus delicti) was never found ..
In the case of Jua V. The State, this Court, per Ogbuagu, JSC held thus:
The Law as regards the absence of the corpus delicti is that a Court may still convict an accused person of murder even though the deceaseds body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed In other words, the fact of death, is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime.
and UDOR V THE STATE (2014) 6 SCM 199 AT 215 paras H-I;
The law is that when the body of the deceased was not found or as in the case at hand, the head was missing, the accused/appellant can still be convicted on the basis of the surrounding circumstances
These two cases together bear strong similarities to the instant case. This is in the sense that the accused person made no confession of any participation in the crime and the head of the deceased was missing. I am however satisfied that the surrounding circumstances of this case point conclusively to the fact that the body recovered was that of the deceased Jacob Ajayi. See also the case of JUA V THE STATE (2010) 4 NWLR, PT 1184, 217, PER TOBI, JSC.PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: WITNESSES: HOW MANY WITNESSES SHOULD THE PROSECUTION CALL
It is trite law that the prosecution is not meant to call every witness but only such number as required to prove its case. In the case of TAIYE V THE STATE (2018) LPELR 44466 (SC) the Court held that the prosecution has no obligation to call a host of witnesses. But a discretion to call only such material witnesses sufficient to prove its case. See also the decision of this Court in ADEKUNLE V STATE (2002) 4 NWLR, PT 756, 169.PER PATRICIA AJUMA MAHMOUD, J.C.A.
CRIMINAL LAW AND PROCEDURE: THE DOCTRINE OF LAST SEEN
This doctrine presumes that any person last seen with a deceased bears full responsibility for his death. The doctrine has no statutory flavor but its a creation of case law. See the case of KOLADE V THE STATE (2017) LPELR 42362 (SC). See also the cases of MADU V THE STATE (2012) 15 NWLR, PT 1324, 405, ANYASODOR V THE STATE (2018) LPELR 43720 (SC), UMAR V STATE (2018) LPELR 43719 (SC) and of course OKETAOLEGUN V THE STATE (SUPRA) cited by respondent’s counsel.PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
TOPE OLATUNJI Appellant(s)
AND
THE STATE Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): In this case four persons were tried together, convicted and sentenced. One of the active participants in the crime, one Sunday Fagbemi remains at large. The appellant Tope Olatunji was the fourth accused in the trial. As this is an appeal by only one of the four convicts, I will not constrain myself with setting out all the facts of the case. It will suffice and I will be content with such of the facts as are necessary for the purpose of bringing out the points in the appeal which are material to the issues raised for determination by the appellant herein.
The appellant, Tope Olatunji, along with three others were charged, tried and convicted by Hon. Justice K. M. Akano of the Osun State High Court sitting first at Ilesha and later at Oshogbo on a two count charge of conspiracy and murder contrary to SECTIONS 324 and 329 (1) respectively of the Criminal Code Law CAP 34, Laws of Osun State, 2002. In proof of its case the prosecution called three witnesses and tendered about thirteen Exhibits including the extra judicial statements of the accused persons.
The accused
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persons in their own defence each testified for themselves and called no other witness.
At the conclusion of hearing, the learned trial Judge in his judgment delivered on the 8th November, 2016 found the appellant together with the three others guilty of the two count charge, convicted and sentenced them accordingly. It is against this judgment that the appellant by an amended notice of appeal filed on the 30/10/2017 but deemed on the 04/12/2018 appealed to this Court on seven grounds as follows:-
1. The Osun State High Court per Hon. K. M. Akano J erred in law when she held that the Appellant herein was guilty of the offence of conspiracy to murder the deceased Jacob Ajayi in conjunction with other accused persons when there was no evidence, be it direct, circumstantial or confessional on the record capable of sustaining such a conclusion.
2. The Osun State High Court per Hon. K. M Akano erred in law when she held that the Appellant herein was guilty of the offence of murder when there was no evidence, be it direct, circumstantial or confessional on the record capable of sustaining such a conclusion, particularly when the learned trial judge
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held thus in the following portion of her judgment in issue:
As stated earlier, there is no eye witness account to the murder of the deceased. All the accused persons except DW3 that is Femi Famuyiwa who stated that he joined Sunday to kill Jacob denied the offence of murder?..
The portion of the statements of all the accused persons highlighted above is to show the role played by each of them in this case, their denial of same in their evidence in Court notwithstanding. Moreso, considering the fact that all the statement (sic) were admitted without any objection from their counsel.
Putting all as highlighted above by all the accused persons together or side by side, with the exhibits the only inference that can be drawn is that they each played a role in one way or the other together with Sunday Fagbemi now at large to murder the deceased and dispose his corpse in the soakaway in the fenced house where the 1st accused person is the day and night guard. The end result of the murder was for money making ritual. The combination of all the acts of all the accused persons led to the death of the deceased, Jacob Ajayi.
3. The learned
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trial judge erred in law when she held that the end result of the murder was for money making ritual particularly when she held thus:
I have carefully considered the entire evidence before me together with exhibits tendered and I have come to the conclusion that all the accused persons cannot be availed any defence in respect of the offence of murder. They were all out from the beginning to carry out the murder of the deceased. Moreso, they intended to make money ritual with human parts?.
4. The learned trial judge further erred in law when she held that it has been proved beyond reasonable doubt that Jacob Ajayi died and moreso with the discovery of the corpse from the soakaway.
5. The learned trial judge erred in law when she held that the guilt of the accused person had been established beyond reasonable doubt by circumstantial evidence before the Honourable Court without specifying the particulars of or chain of the circumstantial evidence relied upon and thereby came to a wrong conclusion, which occasioned a grave miscarriage of justice.
6. The learned trial judge erred in law when she relied on Exhibit 1D1, 1D2 and 1D3
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purported photographs of the deceased person and relied on same for the purpose of identifying the deceased person.
7. The learned trial judge erred in law in the consideration of the case of the Appellant when she failed to consider his defence particularly all those aspects which showed that it was impossible for him to commit the offences charged.
Whereof the appellant seeks the order of this Court allowing the appeal and setting aside the conviction and sentence of the lower Court.
In prosecuting the appeal the appellant filed his brief of argument also on the 30/10/2017 but equally deemed on the 04/12/2018. In arguing the appeal, Mr. Adedayo Adedeji of counsel for the appellant adopted the brief as his legal arguments in support of the appeal. In it counsel raised three issues for determination as follows:-
1. Whether or not from the evidence led by the prosecution there was sufficient circumstantial evidence on the record forcibly suggesting that the Appellant murdered the deceased person. (Grounds 2, 3, 5 and 7).
2. Whether the Trial Court was not in grave fundamental error when it convicted the Appellant of the offence of
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conspiracy on the discredited and unreliable evidence presented by the prosecution (Ground 1).
3. Whether the Trial Court was not in grave fundamental error when he admitted Exhibit 1D1, 1D2 and 1D3 purported photographs of the deceased person in evidence and relied on same in convicting the Appellant. (Grounds 4, 6).
Mr. Adedeji argued issues 1 & 2 together and issue 3 separately. It should be pointed out though that learned counsel at page 17 of the brief wrongly titled issue 3 as issue 2. I do not consider it germane to the determination of this appeal to detail out the submission of counsel in the 20 page brief. It suffices to give only a brief summary of the submissions of counsel and to go back to any detail in the course of this judgment if the need arises. Mr. Adedeji submitted that from the evidence led by the prosecution there was no circumstantial evidence on the record pointing to the conclusive proof that the appellant murdered the deceased, Jacob Ajayi. That the totality of the evidence led by the prosecution in proof of the twin charges of conspiracy to murder and the murder of Jacob Ajayi is unreliable and discredited leaving
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nothing on record that the appellant murdered the deceased. Counsel contended that conviction and sentence of the appellant without evidence was wrongful and has occasioned a grave miscarriage of justice to him. Counsel finally argued that the trial Court was in grave fundamental error when he admitted Exhibits ID1, ID2 and ID3, the purported photographs of the deceased person in evidence and relied on same to convict the appellant.
In opposing the appeal, the respondent filed their brief of argument on the 21/03/018 which was deemed on the 13/11/2018. In arguing same, Mr. Abiodun Badiora of counsel for the respondent adopted the brief as his legal arguments in opposition to the appeal. In it, counsel raised a sole issue for determination thus:-
?Whether the prosecution proved the charge against the appellant beyond reasonable doubt with credible evidence.?
In summary Mr. Badiora submitted that the evidence led by the prosecution though circumstantial points irresistibly to the guilt of the appellant and his cohorts. Counsel further submitted that the trial Court never relied on Exhibits ID1, ID2 and ID3 to convict the appellant and
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that therefore expunging them from the records will not have any effect on the conclusion reached in the case by the lower Court. The final contention of Mr. Badiora is that the respondent adduced credible evidence to prove its case against the appellant and his co-accused beyond reasonable doubt as required by law. Whereof counsel urged the Court to dismiss the appeal and uphold the judgment of the lower Court.
The respondents sole issue is in pari material with the appellant?s issue (1). I therefore intend to take them together. These two issues interrogate the evidence as to whether it proved the charge(s) against the appellant beyond reasonable doubt. There were no eye witnesses to this offence. The case of the prosecution is predicated mainly on circumstantial evidence. Generally in criminal law, the guilt of an accused person can be proved by one of three ways:-
1. The confessional statement of the accused person;
2. Circumstantial evidence and
3. Evidence of eye witness of the crime.
See: IGABELE V STATE (2006) 6 NWLR PT 975, 100.
Circumstantial evidence is defined in MOHAMMED V STATE (2007) 13 NWLR, PT 1050, 186
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AT 204 as ?an evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics?..?
This is perhaps why it is often referred to as the best form of evidence. See also OKPAKO V STATE (2018) LPELR ? 43875 (SC) and AMOS V STATE (2018) LPELR ? 44694. The grouse of the appellant is that there is no circumstantial evidence linking him with the murder of the deceased.
The question to contend with at this point is whether there is such circumstantial evidence. In answering this question in the affirmative Mr. Badiora referred to the extra judicial statement of Tobi Ojo, the 2nd accused person at the trial Court where he said among other things:-
?. Sometimes in April, 2012 after training Tope called me and Jacob aside and told us that there is another hope for us if we want to look for spiritual money. He told us that if we are ready to set the money we should come tomorrow he will direct us to somebody who will take us there. The next morning me and Jacob went and met Tope at the garage he then introduced one Ayo
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to us. Ayo told us to wait for his (sic) for about five minute when we did and when he came back he took us to the stadium where we met one man whom he introduced to us as Sunday and a herbalist?
Both the appellant and Tobi Ojo were co-accused along with two others at the trial in the lower Court. In the case of NWOSU V STATE (2004) 15 NWLR PT 897, 466 this Court held that;
in a conspiracy proceeding, evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that, if they are all conspirators what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it might have been said in the absence of the other conspirators?.?
It is conceded in the instant appeal, that this case is premised mainly on circumstantial evidence. There was no eye witness to the crime, neither is there a confessional statement by any of the parties. Where a case is based on circumstantial evidence as in the instant case, it is competent for the Court to convict thereon. I must however sound a note of warning
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like the Supreme Court did in the case of OGUNO & ANOR V STATE (2013) 6 SCM, 145 AT 162 ? 163, PARAS I-C ?that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other person could have been responsible for the commission of the offence.?
I find that the circumstantial evidence in this case is the only available evidence. I am satisfied also that it leaves no chance that other persons other than the appellant and the three co-accused persons could have committed the offence(s). This is reinforced by the provisions of SECTION 7 of the Criminal Code Cap Law Cap 34, Laws of Osun State, 2002:-
?When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of offence, and may be charged with
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actually committing it, that is to say:
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence ?..?
This provision is akin to common intention in criminal law. Where common intention is established, a fatal blow or gunshot though given by one of the parties is deemed in the eyes of the law to have been given by all those present and participating. See the Supreme Court cases of NWANKWOALA V STATE (2006) 14 NWLR, PT 1000, 663; ADEKUNLE V STATE (1989) 5 NWLR, PT. 123, 505; OYAKHIRE V STATE (2006) 15 NWRL, PT. 1001, 157 and ALARAPE V STATE (2001) 5 NWLR, PT. 705, 79. In this case therefore in the course of the execution of their common intention to do a money ritual, the killing and beheading of the deceased and the removing of his genitals in my view, following this authority is enough proof of the criminal liability of all the four accused persons or convicts as it were, including the appellant to establish that one of them caused the death of the victim. In other words it
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is immaterial to prove what each of the accused persons did in the actualization of their pre-conceived common purpose. See NWANKWOALA V STATE (SUPRA) AND OYAKHIRE V STATE (SUPRA).
In practical terms, it is difficult if not impossible to prove common intention, like it is difficult to prove conspiracy. Its existence can only be inferred from the circumstances disclosed. See again the case NWANKWOALA V STATE (SUPRA). In the instant case, and as succinctly put by the learned counsel to the respondents, nobody apart from the convicts, including the appellant except the Almighty God, knew what happened to the victim, Jacob Ajayi that turned him into a headless corpse without genitals rotting away in the soak away pit in the fenced house where the 1st convict Oluwafemi Fagbemi lived and doubled as the day and night guard. The explanation of the, accused persons, appellant inclusive as to what transpired are as contained in their extra judicial statements admitted in evidence and marked as Exhibits A, B, C, D & D1, D2, E & E1, F & F1, G, G1 & G2. It can be gleaned from these that the appellant introduced money ritual to the deceased and Tobi,
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(2nd accused) who were close friends and lived together in a room rented and paid for by the deceased?s father. The appellant asked them to go to one Ayo who would take them to Sunday Fagbemi (still at large), a herbalist who would do the ritual. The said Sunday Fagbemi was living with his father, Oluwafemi Fagbemi the 1st accused. For about three days, Famuyiwa Femi, Tobi Ojo and the deceased were always with the said Sunday Fagbemi in his father?s house. The 1st accused is reported to have said that he overheard the four men or boys talking about making ritual money. Both Tobi Ojo and Famuyiwa Femi said on a particular day, they saw Sunday Fagbemi put a leaf in the deceased?s mouth and asked him to go to the backyard of the house. They also both said that Tobi Ojo hid himself so that the deceased would not see him when he entered the house. After the deceased disappeared, the 1st ? 3rd accused/convicts were aware that his mutilated body was in the soak away but they continued to assemble in the house as if nothing had happened. Tobi Ojo who was supposed to be his friend never looked for him or raised any alarm to his father or the
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police that he had disappeared. The 1st accused/convict told some of the other convicts (Tobi Ojo and Famuyiwa Femi) to forget about the deceased as ?he has gone his own way?. This was a euphemism understood by the duo to mean that the deceased had died.
I also uphold the submission of Mr. Badiora that these extra judicial statements were tendered without objection from all the convicts. That none of the convicts including the appellant cross examined each other or PW2 and PW3 on the different roles the convicts played in the events that led to the death of Jacob Ajayi. Neither did any of the convicts give contrary evidence to challenge these pieces of evidence on the different roles played by each of them. It follows that the evidence remains uncontroverted and unchallenged. The law is well settled that the trial Court is entitled to act on the evidence of a witness where such evidence is unchallenged and uncontroverted. See the apex Court cases OMOREGBE V LAWANI (1980) 3-4 SC, 108 and MATTHEW V STATE (2018) LPELR – 44070 (SC) NWEZE, JSC in deciding on the effect of unchallenged/uncontroverted evidence held that:
It is well known
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that where evidence of a witness is uncontradicted and unchallenged, the Court would relate it to the applicable law
Based on this authority, I am emboldened to uphold the submission, of Mr. Badiora that the evidence of the role(s) played by each of the convicts contained in the extra judicial statement as against the other convicts is admissible against the accused persons. See the case of ADELEKE V STATE (2013) 12 SCM, PT 2, 1 AT 21-22 PARAS I-A:-
On the point raised by the Appellant that the evidence of a co-accused is not admissible against other accused persons is not a general rule that is taken hook, line and sinker without exception. This is because where, as in this case, there is a link or nexus from the contents of the statement of a co-accused or even his extrajudicial statement with a strong connection from other independent evidence then the exception is accepted as making that general rule aforesaid give way for the reality on ground. I place reliance on the case of Oyakhire V The State (2006) 12 SCM (Pt. 1) 369 at 380 and 381.
I also uphold
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counsels submissions that the evidence of the roles played by each of the convicts in the extra judicial statements is consistent with the independent evidence of death of the deceased at the 1st convict?s place of work and abode. I find therefrom that these pieces of evidence or explanations constitute or provide circumstances in which the Court could rightly infer that the convicts were either actively involved in the beheading and removal of the genitals of the deceased and dumping what was left of the corpse in the soak away pit or their action or omission facilitated the killing of the deceased as aforesaid. The said evidence did not put the appellant in the house of the 1st convict where the deceased was with the three other convicts. There was no evidence at any point prior to the killing on this. However the evidence of the second convict, Tobi Ojo showed that it was the appellant that introduced them to money ritual; directed them to the house of the 1st convict from where the deceased never said came out alive. I have already found in this judgment that by SECTION 7 (b) of the Criminal Code Law, Cap 34 (supra) the appellant by his
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action/inaction facilitated the herbalists to whom he directed or referred the deceased to making it possible or easier for them to kill the deceased, behead him and remove his genitals. In the eyes of this law, even though the appellant may or may not have been physically present or and participated in the actual commission of the crime, he is nonetheless guilty of the offence.
On the contention of the appellant that the circumstantial evidence in the instant case is based on mere speculations and suspicion, the respondent?s counsel submitted that all the inference made by the trial Court was deducible from the evidence before the Court. On the trial Court having a perceived notion of the appellant being a ritualist Mr. Badiora submitted that such fact is borne out of the evidence before the Court.
I have dispassionately considered the submissions of both counsel on some of these issues and the entire evidence available in the records of the trial Court. I must say without a doubt that I have no difficulty in coming to the conclusion as urged by the learned counsel to the respondent. That is that circumstantial evidence is not direct
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evidence. It is often evidence of surrounding circumstances. It is from these circumstances that the Court can draw or make inferences. It is in evidence in this case that Tobi Ojo and the deceased were in the house of the first convict for money ritual; that the appellant introduced them to the Fagbemis for the purpose of money ritual; that the headless body of the deceased was found in the soak way in the house of the Fagbemis and that the foul odour of the decomposing body did not stop the convicts (1st-3rd) from carrying on with their lives as normal in the house all justify the inferences made by the trial Court. In other words, the suggestion that the inferences were made based on misconceived notion and not on surrounding circumstances from the case is completely misconceived. See the case of OKETAOLEGUN V THE STATE (2015) 9 SCM, 196 AT 217.
On the contention of the appellant that the headless body found in the soak away was never identified as that of the deceased Jacob Ajayi not even by PW1, his father, I find that such misgivings have been adequately answered by the Supreme Court in the case of OBIDIKE V THE STATE (2014) 7 SCM 104 AT 137-139
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PARAS 1, A I & A-C:
The first is the fact that the body of the deceased (the corpus delicti) was never found ?..
In the case of Jua V. The State, this Court, per Ogbuagu, JSC held thus:
The Law as regards the absence of the corpus delicti is that a Court may still convict an accused person of murder even though the deceased?s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed In other words, the fact of death, is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime.?
and UDOR V THE STATE (2014) 6 SCM 199 AT 215 paras H-I;
The law is that when the body of the deceased was not found or as in the case at hand, the head was missing, the accused/appellant can still be convicted on the basis of the surrounding circumstances.?
These two cases together bear strong similarities to the instant case. This is in the
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sense that the accused person made no confession of any participation in the crime and the head of the deceased was missing. I am however satisfied that the surrounding circumstances of this case point conclusively to the fact that the body recovered was that of the deceased Jacob Ajayi. See also the case of JUA V THE STATE (2010) 4 NWLR, PT 1184, 217, PER TOBI, JSC.
I should consider two other ancillary issues raised by the appellant. These are with regards to the photographs tendered and admitted as ID1, ID2 and ID3. The appellant?s objection is premised on the fact that the trial Court relied on the photographs to convict the appellant and that they were not tendered through the maker as well as failure to call the sanitation officers who brought out the corpse as witnesses. These contentions are in my view of no moment in this appeal. There is no evidence on record and the appellant showed none that the trial Court relied on the photographs to convict the appellant. I agree with the respondent?s counsel that the trial Court only made reference to the photographs and never relied on them to convict the appellant, towards what end I may
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ask. See the last paragraph of Page 99 of the records:-
The evidence before the Court from the prosecution witnesses and the accused persons is that the corpse of the deceased as recovered and shown in 1D1, 1D2 and 1D3 was headless with missing genital and part of the flesh on the tight cut off.
The issue of the maker tendering them in the circumstances does not arise. The photographs in my view were superfluous as they added no value to the evidence of the prosecution. Expunging them from the records as urged in the alternative would not affect the prosecution?s case in any way. This submission is only of nuisance value. It is accordingly discountenanced. So also is the submission on the sanitation officers. How does ?the circumstances surrounding the process of exhuming the corpse? become a fundamental issue to the appellant?s case? It is not enough for parties or litigants to throw up issues without tying them to the case at hand. It is the work of sanitation officers and not police to deal with things like soak away where the corpse was dumped. There is no dispute from both the prosecution and the defence
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that the corpse was exhumed. It is trite law that the prosecution is not meant to call every witness but only such number as required to prove its case. In the case of TAIYE V THE STATE (2018) LPELR ? 44466 (SC) the Court held that the prosecution has no obligation to call a host of witnesses. But a discretion to call only such material witnesses sufficient to prove its case. See also the decision of this Court in ADEKUNLE V STATE (2002) 4 NWLR, PT 756, 169.
Assuming that I have not been dispassionate enough in the consideration of the issues raised particularly as to whether there is sufficient circumstantial evidence to ground conviction I am guided by the doctrine of ?last seen. This doctrine presumes that any person last seen with a deceased bears full responsibility for his death. The doctrine has no statutory flavor but it?s a creation of case law. See the case of KOLADE V THE STATE (2017) LPELR ? 42362 (SC). See also the cases of MADU V THE STATE (2012) 15 NWLR, PT 1324, 405, ANYASODOR V THE STATE (2018) LPELR ? 43720 (SC), UMAR V STATE (2018) LPELR ? 43719 (SC) and of course OKETAOLEGUN V THE STATE
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(SUPRA) cited by respondent?s counsel.
In the present case, the statements of the 1st, 2nd and 3rd accused persons show that the deceased was last known to be alive in their company in the same house where his beheaded body was found in the soak away. It is instructive that there is no evidence of a break in into the house to dump the corpse in their soak away. I have found that these statements of the accused persons are admissible against one another. They are also credible.
From the surrounding circumstances of this case, I am satisfied that there is enough circumstantial evidence in this case. And, it points mistakenly to only one conclusion that the appellant together with his co-accused are the killers of Jacob Ajayi. There is no evidence that other persons had access to the building or house where the incident happened. There is no evidence that the corpse found in the soak away could have been brought into the place by any other person. Also instructive is the attempt by the accused persons to hide the deceased?s death which I find amounts to a grand plan to cover up the crime.
I am also satisfied that from the available
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evidence on record, there is no defence open to the appellant. The position of the appellant in these proceedings is that he did not commit the offences charged. Where an accused claims that he did not commit the offence for which he is charged, I hold that no defence will be open to him. This is because there is no offence upon which the defence will rest. See the decision of this Court in OKEKE V STATE (1999) 2 NWLR, PT 590, 246.
From the findings in this judgment thus far, I see no justification in disturbing the judgment of the Court below. I am an advocate of the legal maxim that it is better for a hundred guilty people to be set free than for one innocent person to be convicted. I however cannot lose sight of the fact that in criminal matters, justice is not only to the accused but also to the victim who is crying from the grave for justice. In the instant case not only justice for his murder but for desecrating his body by beheading him and cutting off his genitals. Justice is a two way traffic. It has to work both ways to be fair and balanced.
I find no merit in this appeal. It fails and I accordingly dismiss it. I affirm the decision of the
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trial Court which convicted the appellant and sentenced him to death for the murder of Jacob Ajayi.
I cannot end this judgment without thinking aloud of the nature of greed that will make one human being kill another for ritual money. That for doing no work, one is prepared to sacrifice the life of another often in the most brutal and inhumane way as it involves the removal of vital body organs/parts to get ritual money. A lot of the times the victim is either a close friend or family member of the perpetrator. It is my view that the legal jurisprudence as it relates to killing for money ritual be overhauled. Advisedly the burden of proof should shift to the accused to prove that he did not kill the victim and for money ritual. Whatever direction this pendulum swings the situation requires a drastic measure to check this ugly monster before it overruns our society or country.
May God have mercy on our country Nigeria.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Appellant herein was tried jointly and convicted alongside one Famuyiwa Femi whose appeal has just been
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dismissed in Appeal No. CA/AK/68C/2017 by my brother Patricia Ajuma Mahmoud, JCA, the facts and evidence are the same.
The Appellant was properly brought to justice. The expatiation of his conscience can only be done by the affirmation of the conviction and dismissal of appeal.
God has provided enough material resources for man to make a living from; but some have chosen the way of perdition.
May God save his own and his will in justice as herein dismissing the appeal be.
I concur, therefore, that the appeal be dismissed for the overwhelming evidence disclosed at the trial Court.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA.
My lord took his precious time to dissect and treat the issues in good faith being a criminal appeal. The reasoning and conclusion reached therein are far fetched and in the interest of justice for both sides. The appeal is unmeritorious and bound to fail with consequence result of dismissal. It is therefore dismissed.
I also affirmed the decision of the trial Court in conviction and sentence to death.
Appearances:
Mr. Adedayo AdedejiFor Appellant(s)
Mr. Abiodun Badiora (AG/PT, Osun State MOJ) with him, Mr. Bewaji Adeniyi (PSC)For Respondent(s)
Appearances
Mr. Adedayo AdedejiFor Appellant
AND
Mr. Abiodun Badiora (AG/PT, Osun State MOJ) with him, Mr. Bewaji Adeniyi (PSC)For Respondent
