UDOM v. STATE
(2020)LCN/15697(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, May 19, 2020
CA/C/448C/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
UDUAKOBONG EFFIONG UDOM APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
CONVICTION NOT BEING BASED ON SUSPICION BUT ON EMPIRICAL FACTS
The implication of the above questions which reveal some gaps in the analysis and conclusion of the learned trial judge is to show that the conviction of the Appellant was based on suspicion rather than empirical facts and evidence on record.It is trite law that suspicion however grave cannot take the place of legal proof. See State vs. Ogbubunjo (2001) 2 NWLR (pt. 698) 576, Orji vs. State (2008) 10 NWLR (pt. 1094) 31, Bozin vs. State (1985) 2 NWLR (pt. 8) 465. MOJEED ADEKUNLE OWOADE, J.C.A.
A CASUAL LINK OF THE ACT OF THE APPELLANT AND THE DEATH OF THE DECEASED SHOULD BE ESTSBLISHED BEYOND REASONABLE DOUBT
In the instant case, the totality of the evidence of the prosecution did not establish any link between the act of the Appellant and the death of the deceased. It is the law that for an accused to be convicted of the offence of murder or even manslaughter as in the instant case, whenever it is alleged that death has resulted from the act of a person a causal link between the death and the act must be established and proved beyond reasonable doubt. If there is the possibility that the deceased died from other causes than the act of the accused, the prosecution has not established the case against the accused person.
See Audu vs. State (2003) 7 NWLR (pt.820) 516, Uguru vs. State (2002) 9 NWLR (pt. 771) 90 SC, Oforlete vs. State (2000) 12 NWLR (pt. 631) 415 SC, Oche vs. State (2007) 5 NWLR (pt. 1027) 214. MOJEED ADEKUNLE OWOADE, J.C.A.
CONCLUSION OF GUILT FROM THE CIRCUMSTANTIAL EVIDENCE
The gravamen of the offence with which the appellant was charged was murder but convicted for the lesser offence of manslaughter. The vital evidence was the fact of dropping the corpse of the deceased in a private mortuary and the attempt by the appellant to run away. Thus, the evidence is circumstantial in nature.
However, in drawing an inference and reaching a conclusion of guilt from circumstantial evidence leading to the conviction of an accused, it is necessary to be sure that there are no other co-existing circumstances. MUHAMMED LAWAL SHUAIBU, J.C.A.
THE REASONABLE GROUND FOR SPECULATION
In the instant case, the running away from the mortuary after the appellant dropped the deceased corpse leave reasonable ground for speculation which undoubtedly weaken the inference and conclusion by the learned trial judge. In other words, there are existing co-existing circumstances which would weaken or destroy the inference in the instant case. I too allow the set aside the judgment of the trial Court. MUHAMMED LAWAL SHUAIBU, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Akwa Ibom State delivered by Honourable Justice Felicita Ibanga, sitting in MkpatEnin Judicial Division in Charge No. HME/2C/2016. The Appellant as the accused person was arraigned on a two count charge of murder, contrary to Section 326 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000. And being a member of an unlawful society, contrary to Section 72 (a) of the same law. The trial judge found the Appellant not guilty on the two counts. However, in relation to the charge of murder proceeded to convict the Appellant for the lesser offence of manslaughter.
The prosecution called six (6) witnesses PW1 – PW6 and tendered five (5) Exhibits, A – F. The case of the prosecution was/is that the Appellant in company of a motor cyclist brought the corpse of the deceased one Ukpe Udo Koffi to a private mortuary at Ikot Ndua Imam Village in Onna Local Government Area in the early hours of 13th March, 2014. That after the Appellant inquired from the mortuary attendant – PW1 the procedure for depositing corpse, he dropped the corpse and ran away. He was later apprehended by the police and eventually made three extra judicial statements Exhibits A, C and D none of which was confessional. However, in Exhibit D, the Appellant stated that the gunshot that killed the deceased during their vigil was fired by one Bright who is from Ibiotio village where the deceased come from and also the youth president. The Appellant stated thus in his evidence in chief as DW1.
I was invited to a vigil night by a friend I cannot remember the date. It was in November, 2014 I went there at about 10pm I met my friend there and we were altogether. While the vigil night was on going, I heard a gunshot in the neighbourhood. When I turned around to find out where the gunshot was from, I saw my friend who invited me on the ground. I tried to lift him up to know what had happened. Other people ran and came around. They lifted him up to sit on the ground. I saw blood stains on his face and on his clothes…. A motorcycle was brought. The victim was put on top of the motorcycle and I sat behind him. We wanted to rush the victim to a hospital or a health centre for First Aid but we did not find one. At the certain point on the road, the motorcyclist and the other persons who accompanied us stopped on the road to find out the state of the victim but he was dead. They suggested that the corpse be taken to a mortuary. I took the corpse to the mortuary. I carried the corpse down from the motorcycle but the motorcyclist rode away and left me behind. The security men took me inside and inquired to know what had happened. I was trying to inform them of what had happened when they invited the police. Apart from the deceased, I did not know any other person at the vigil night.
Under cross examination, the Appellant as DW1 stated further
“The name of my friend who invited me to the vigil night is UkpeKoff – my friend informed me that the vigil was for his relative that died. UkpeKoffi was the class representative in my school. It is not true that my other friends from my school also attended the vigil night.”
In concluding that it was the Appellant that fired the gunshot that killed the deceased, the learned trial judge reasoned that even though the Appellant made earlier extra judicial statement as in Exhibits A and C, he (Appellant) only mentioned Bright in Exhibit D as the person who fired the shot that killed the deceased. That he, (Appellant) did not even mention Bright in his evidence in Court as the person who shot the gun that killed the deceased. Again, apparently because of the evidence of PW6 that Appellant “also mentioned the names of his fellow cult members and their possible hideout— efforts to arrest the people he mentioned was unsuccessful,” the learned trial judge speculated that Bright does not exist. In his review of evidence, the learned trial judge nodded with approval the submission of the Defence counsel that
“It was the accused person who was last seen with the deceased. He carried him from the venue of the vigil night at Asong village after he was shot to the private mortuary as Ikot Ndua Imam in Onna Local Government Area where he attempted to abandon the corpse and flee. The accused has not denied this fact either —-“
On these facts and based on what the learned trial judge believed to be circumstantial evidence, he curiously came to a conclusion that it was the Appellant that fired the gun shot that killed the deceased. His Lordship’s fuller reasoning that led to the acquittal of the Appellant on the offence of murder and his (Appellant’s) conviction for the lesser offence of manslaughter would be found on pages 141-143 of the Record of Appeal as follows: first, at pages 141 – 142 that:
From the available evidence, the accused person was the person who carried the deceased from the venue of the vigil night at Asong village to the mortuary at Onna. The Post Mortem Examination in Exhibit E stated the cause of death as gun shot. The accused person both in his evidence in Court and extra judicial statement admit that the deceased died of gunshot which was fired during the vigil night in Exhibit D, he told the police that one Bright fired the gunshot which killed the deceased but the police stated that efforts to either identify or arrest the said Bright was unsuccessful. This is a clear indication that the said Bright does not exist because he failed to mention the said Bright in his evidence in Court as he told the Court that he heard gunshot in the neighbourhood and when he turned around to find out where itcame from he saw his friend the deceased on the floor. According to him, it was the deceased who invited him to the said vigil and he did not know any other person which is contrary to his extra judicial statements in Exhibits A, C and D that one Akan invited him and others and he named other persons whom he knew there. The prosecution witnesses and even the accused person agree that the deceased was last seen with the accused person. He took the corpse of the deceased from Asong village, the venue of the vigil night to the mortuary at Onna Local Government Area where he attempted to abandon it and flee. The only irresistible inference that can be drawn from the surrounding circumstances in this case is that the accused person fired the gunshot which killed the deceased Ukpe Udo Koffi. The circumstantial evidence points to the guilt of the accused person. I am therefore in total agreement with the submission of the learned counsel for the State that the accused person is criminally liable for the death of the deceased. It is therefore beyond reasonable doubt by circumstantial evidence that the accused person caused the death of the deceased Ukpe Udo Koffi.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Second at pages 142 – 143 of the Record of Appeal thus:
The third ingredient in a Charge of Murder which the prosecution must prove is that the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. The Law presumes that a man intends the natural and probable consequence of his act. And the test to be applied is the objective test namely, the test of what a reasonable man would contemplate as the probable result of his acts. See the cases of IBIKUNLE VS. STATE (2007) 2 NWLR (PT. 1019) 546 AT 582, UWAGBOE VS. STATE (2007) 6 NWLR (PT. 1031) 606 AT 620, GARBA VS. STATE (2000) 6 NWLR (PT. 661) 378.
The accused person who was present when the incident took place told the Court that the deceased was killed by the gunshot which was fired during the vigil night at Asong Village. This Court found from the circumstantial evidence that the accused person fired the gunshot which killed the deceased. The issue now is what was the intention of the accused person when he fired the gunshot at the vigil night which killed the deceased. Was it to honour or celebrate the deceased person inwhose honour the vigil night was held or was it fired intentionally to kill Ukpe Udo Koffi, the deceased in this case. The Law is trite that a Court of Law only acts on available evidence and is not permitted to speculate. Based on the above, it is the view of this Court that the prosecution has failed to establish that the accused person fired the gunshot intentionally at the vigil night to kill the deceased Ukpe Udo Koffi.
The law is trite that in a Charge of murder, the three (3) elements/ingredients earlier set out must co-exist and where one of them is not proved or tainted with doubt, then the charge is not proved. In the light of above, it is the view of this Court that the prosecution has failed to prove the Charge of murder against the accused person beyond reasonable doubt.
However, since the act of the accused person in shooting the gun at the vigil night resulted in the death of Ukpe Udo Koffi, it is the view of this Court that the prosecution has proved beyond reasonable doubt the offence of manslaughter contrary to Section 332 of the Criminal Code, Cap 38, vol. 2 Laws of Akwa Ibom State.
Dissatisfied with the judgment, the Appellant at first filed a Notice of Appeal containing two (2) Grounds of Appeal on 24th October, 2017. However, on 7th October, 2019, the Appellant filed an Amended Notice of Appeal containing seven (7) grounds of Appeal.
The relevant briefs of argument are:
1. Appellant’s Brief of Argument filed on 22nd March, 2018 but deemed filed on 30th January, 2020. It is settled by Emmanuel Akpan Esq.
2. Respondent’s Brief of Argument filed on 7th June, 2019 but deemed filed on 30th January, 2020. It is settled by Emmanuel Ubengamah Assistant Chief State Counsel, Ministry of Justice, Uyo.
3. Appellant‘s Reply Brief filed on 17th March, 2020 was deemed filed on 18th March, 2020. It is settled by Martha A. Obot Esq.
Learned Counsel for the Appellant nominated five (5) issues for determination of the appeal. They are:
1. Whether the evidence led by the prosecution before the trial Court could sustain a conviction on the offence of manslaughter.
2. Whether the contradictions in the testimony of the prosecution witnesses were substantial and fatal to the prosecution case.
3. Whether failure of the prosecution to produce in Court the final investigation report on the investigation that led to the trial does not amount to withholding evidence and fatal to the prosecution case.
4. Whether mere suspicion without more would sustain the conviction of the Appellant on the offence of manslaughter.
5. Whether the trial Court could still rely on the extra judicial statement of the accused and his testimony in Court after finding them to be contradictory.
Learned Counsel for the Respondent on the other hand formulated two (2) issues for determination of the appeal.
They are:
1. Whether the prosecution proved its case against the Appellant beyond reasonable doubt.
2. Whether the trial Court was right to convict the Appellant for manslaughter based on the evidence before the trial Court.
I have carefully gone through the record of appeal in this case and the processes filed by the parties. I think a sole issue in terms of Appellant’s issue No. 1 would suffice for the justice of the case.
I therefore adopt Appellant’s issue No. 1 as the sole issue for determination of the appeal.
Learned counsel for the Appellant divided his arguments on the sole issue formulated by this Court into five (5) segments coinciding with the five issues hitherto nominated by him.
He submitted first that the evidence proffered by the prosecution cannot sustain a conviction on the offence of manslaughter. In the entire evidence of the prosecution, none said that he saw the Appellant killed the deceased. That the finding by the learned trial judge on page 139 – 140 of record that since the Appellant did not mention Bright as the person who fired the gunshot that killed the deceased in exhibit A and C, and that effort by PW6 to arrest the said Bright proved abortive is a clear indication that the said Bright does not exist is borne out of speculation.
On this Appellant’s Counsel submitted that the Court should only act on evidence and not speculate. Further, that the Court did not take into consideration exhibit F, under the heading findings item vii, which states “That the suspect on our custody denied being the killer but Bright – the youth leader of Ibioto village MkpatEnin.”
He noted that the youth leader of a village cannot be said not to exist. He submitted further that on page 140 of the records, in his judgment, the learned trial judge relied on the written submission of the prosecuting counsel and held that “as rightly observed by the prosecution counsel, the accused was last seen with the deceased —“
That this observation by the learned trial judge is not correct. That the inference that a person last seen alive with a person later found to have been murdered was the murderer could not be drawn in every case. It is an inference which may not be drawn depending on the ascertained evidence as to the manner the deceased met his death. That where there is undisputed evidence as to how the deceased met his death, no inference can be drawn that it was the person last seen with him alive who killed him. He referred to the case of MBANG VS. STATE [2009] 12 M. J. S. C. (pt. 11) page 248 at 249 – 250.
He submitted that in the instant case the circumstances the deceased met his death is known and the Appellant was only found with his corpse in company of another, who ran away.
He submitted that the agreement by the learned trial judge with the submission of the prosecuting counsel on the possibility of the “last seen doctrine” was not borne out of the evidence before the Court and also a wrong application of the law.
He submitted that there is no evidence, direct or circumstantial before the Court to the effect that the Appellant fired the shot that killed the deceased and that Exhibit E, which is the Pathology Form did not link the act of the Appellant to the death of the deceased.
He referred to the case of Aiguobarueghian vs. State (2004) 17 NSCQR page 442 at 453 and submitted that the burden which never shifts is on the prosecution to prove not only that the act of the accused could have caused the death of the deceased but that it certainly did. If there is the possibility that the deceased died from other causes than the act of the accused, the accused is entitled to be acquitted. In the instant case said counsel, the prosecution failed to link the act of the Appellant to the cause of death of the deceased and from the evidence before the Court there are clear possibilities that the act of another could have caused the death of the deceased. He submitted that it is on this basis that the inference drawn by the learned trial judge on page 142 of the Records, that “The only irresistible inference that can be drawn from the surrounding circumstances in this case is that the accused fired the gunshot which killed the deceased Ukpe Udo Koffi”.
was borne out of speculation and not supported by any piece of evidence before the Court.
Learned counsel for the Appellant also referred us to page 141 of the Records wherein the learned trial judge stated in his judgment that:
“—The PW5 told the Court that the accused person was arrested at the mortuary at Onna Local Government Area where he attempted to abandon the corpse of the deceased and ran away. The accused person definitely knows something about the death of the deceased for the prosecution in the Prosecution’s Reply to the Defence Final Address argued that these evidence (i.e. evidence of PW1, PW2, PW3, PW4 and PW6 are all strong, cogent, circumstantial evidence pointing irresistibly to the guilt of the accused person. The Defence Counsel did not join issues with the submission of the prosecuting State Counsel on this point. I am therefore tempted to say that the defence counsel conceded the point —“
Appellant’s counsel pointed out that the above passage which indicated reliance by the learned trial judge on the Written Address of prosecuting counsel is not borne out by the evidence before the Court, as there is no evidence of the witnesses relating to the circumstances that led to the death of the deceased.
He added, relying on the case of Ebenehi vs. State [2009] 2 – 3 M.J.S.C. 138 at 142 to 143 and submitted that for a conviction to be based on circumstantial evidence, the evidence must be positive, unequivocal and lead irresistibly, to the conclusion that it is the accused person that committed the offence charged. Still on the first segment of his submission on the sole issue, Appellant’s Counsel referred to the evidence of PW5 – IPO, where he stated on page 119 of the Records that at the end of the investigation the Appellant stated that he was not the one that killed the deceased and went further to mention one Bright and from his investigation he could not identify and arrest the said Bright after several attempts.
On this, Appellant’s Counsel submitted that any contrary opinion as to the cause of the death of the deceased will be against the content of Exhibit F and that the law is trite that oral evidence cannot vary the content of a document.
Finally, he noted on this score the evidence of PW4 to the effect that he does not know who killed his son and that he does not know the accused person.
On the second segment on the sole issue, Appellant’s Counsel tried to draw out contradictions as to the dates the Appellant made the three extra judicial statements, the date, the Pathology Form was issued and in between the evidence of PW6 and Exhibit F – the police status report.
He submitted that when contradictions abound on material issues in a charge, such contradictions must be resolved in favour of the accused person.
He referred to the case of AJIAH VS. STATE [2010] 3 (PT. 111) M. J. S. C. 139 at 150 t 151.
In addressing on the third segment of the sole issue, Appellant’s Counsel alleged that the failure of the prosecution to produce and or file the police final investigation report in this case amounts to withholding evidence. Appellant’s Counsel Submission on item iv which is closely related to his submission on item iii is that there was no decision by the Commissioner of Police to prosecute the Appellant, more so when the prosecution did not file a final investigation Report.
Fifth and finally, Appellant’s Counsel submitted that the learned trial judge ought to have disregarded the Appellant’s extra judicial statements and his testimony rather than acting on them.
Learned Counsel for the Respondent submitted that the trial Court was right to have attributed the unlawful killing of the deceased to the Appellant through circumstantial evidence as it was strong, cogent and proved irresistibly that the Appellant killed the deceased.
He submitted that the Appellant was last seen with the deceased before he died and that the failure of the Appellant to give satisfactory explanation relating to the death of the deceased cloth him with criminal liability for the death of the deceased.
He referred to the case of MADU VS. THE STATE (2012) 15 NWLR (pt. 1234) 405.
Respondent’s Counsel submitted that the Appellant did not mention “Bright at the earliest opportunity when he made his extra judicial statement in Exhibit “A” and “C”, he only mentioned the name of Bright in Exhibit “D”. He added that it was the Appellant who took the deceased to the mortuary, who upon interrogation by PW1 and PW2 ran before he was caught by PW3.
Respondent‘s Counsel disagreed with the idea of any contradiction in the case of the prosecution nay between the evidence of PW5 and PW6. He referred to the cases of Princent & Anor. Vs State (2000) 12 NSCQR 16, Ahmed vs. State (2001) 18 NWLR (pt. 746) 622 that in any event, it is only material contradictions that may affect the case of the prosecution.
In answer to the Appellant’s Submission in his item III, Learned counsel for the Respondent submitted that Exhibit F, the “Status Report case – case of murder” is the police investigation report in this case. That the mere fact that an investigation report made by the IPO and addressed to the Commissioner of Police was not filed could not amount to withholding of evidence. That it is not a requirement of the law that Police Investigation Report should be made part of proof of evidence.
Finally on Appellant’s submission on item V of the sole issue, Respondent’s Counsel submitted referring to the case of Ogudo vs. State (1993) 7 NWLR (pt. 30) 383 that is the law that even though an accused person’s extra judicial statements and evidence in Court are contradictory, the Court can still refer to them when considering the total evidence adduced in a trial.
RESOLUTION OF SOLE ISSUE
The main issue in this appeal is the sidelining or abandonment of evidence by the learned trial judge for speculation and suspicion in the guise of circumstantial evidence. For example:
1. When the learned trial judge held on page 142 of the Records that “the said Bright does not exist —“on account of the evidence of PW6 that “efforts to either identify or arrest the said Bright was unsuccessful —“with respect, the conclusion of the learned trial judge was based on speculation and not evidence.
2. When the learned trial judge either on account of the fact that the Appellant took the corpse of the deceased to the mortuary, or was last seen with the deceased or on account of the fact that the Appellant did not mention the name of Bright in Exhibits A and C or indeed for all of those reasons held on page 142 of the records that “The only irresistible inference that can be drawn from the surrounding circumstances in this case is that the accused person fired the shot which killed the deceased Ukpe Udo Koffi —“ With respect the conclusion of the learned trial judge was based on speculation and not evidence.
3. When the learned trial judge observed and held at page 141 of the Records that “—The PW5 told the Court that the accused person was arrested at the mortuary at Onna Local Government Area where he attempted to abandon the corpse of the deceased and ran away. The accused person definitely knows something about the death of the deceased. Learned counsel for the prosecution in the prosecution’s Reply to the Defence Final written Address argued that these evidence (i. e. evidence of PW1, PW2, PW3, PW4, PW5 and PW6 are all strong, cogent, circumstantial evidence pointing irresistibly to the guilt of the accused person. The defence counsel did not join issues with the submission of the prosecuting State Counsel on this point. I am therefore tempted to say that the defence counsel conceded the point —“ With respect the conclusions of the learned trial judge were based on speculation and not evidence.
4. When the learned trial judge held at page 140 of the Records that “As rightly observed by the Defence Counsel in his Written Address, it was the Accused Person who was last seen with the deceased. He carried him from the venue of the vigil night at Asong Village after he was shot to the private mortuary at Ikot Ndua Imam in Onna Local Government Area where he attempted to abandon the corpse and flee. The accused has not denied this that either—–“ With respect the conclusion of the learned trial judge was based on speculation and not evidence.
In the instant case, the above speculations are the type of inferences which the learned trial judge tagged circumstantial evidence on which the conviction of the Appellant was based. The speculations in this case include the opinions expressed by counsel in their Addresses rather than facts presented in evidence by the parties.
Yet, Courts of law act on empirical legal evidence and not on speculations. See Okoko vs. The State(1964) 1 All NLR 423 at 425, Igabele vs. The State (2006) 6 NWLR (pt. 975) 100 SC. Kekong vs. State(2017) 18 NWLR (part 1596) 108 at 147, Abieke vs. State (1975) 1 All NLR (pt. 11) 57, Ajaegbo vs. State(2018) 11 NWLR (part 1631) 484 SC.
Indeed, another look into the facts of this case which suggest that the most important evidence against the Appellant was the fact of dropping the corpse of the deceased in the mortuary and his attempt to run away – would activate the following questions:
a. Is running away from the mortuary after the Appellant dropped the deceased corpse proof of guilt?
b. Suppose it was the motorcyclist that took the Appellant that was caught or both the Appellant and the motorcyclist – would it also be assumed that it was the motorcyclist that fired the gunshot that killed the deceased or both of them?
The implication of the above questions which reveal some gaps in the analysis and conclusion of the learned trial judge is to show that the conviction of the Appellant was based on suspicion rather than empirical facts and evidence on record. It is trite law that suspicion however grave cannot take the place of legal proof. See State vs. Ogbubunjo (2001) 2 NWLR (pt. 698) 576, Orji vs. State (2008) 10 NWLR (pt. 1094) 31, Bozin vs. State (1985) 2 NWLR (pt. 8) 465.
In the instant case, the totality of the evidence of the prosecution did not establish any link between the act of the Appellant and the death of the deceased. It is the law that for an accused to be convicted of the offence of murder or even manslaughter as in the instant case, whenever it is alleged that death has resulted from the act of a person a causal link between the death and the act must be established and proved beyond reasonable doubt. If there is the possibility that the deceased died from other causes than the act of the accused, the prosecution has not established the case against the accused person.
See Audu vs. State (2003) 7 NWLR (pt.820) 516, Uguru vs. State (2002) 9 NWLR (pt. 771) 90 SC, Oforlete vs. State (2000) 12 NWLR (pt. 631) 415 SC, Oche vs. State (2007) 5 NWLR (pt. 1027) 214.
In the instant case, the prosecution has not established the causal link between the act of the Appellant and the death of the deceased to warrant a conviction even for the offence of manslaughter.
The only issue in this appeal is in favour of the Appellant. The appeal has merit and succeeds.
The Judgment conviction and orders of the Hon. Justice Justice Felicitas J. Ibanga sitting at the High Court of Justice, Mkpat Enin Judicial Division of Akwa Ibom State delivered on 9th October, 2017 in charge No. HMC/2C/2016 are hereby set aside.
The Appellant is accordingly discharged and acquitted of the offence of manslaughter.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. I agree entirely with the reasoning therein and conclusion arrived thereat.
The appeal is meritorious and hereby succeeds.
MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, Mojeed A. Owoade, JCA obliged me with the draft of the leading judgment just delivered. I agree with his lordship that this appeal is meritorious and should be allowed.
The gravamen of the offence with which the appellant was charged was murder but convicted for the lesser offence of man slaughter. The vital evidence was the fact of dropping the corpse of the deceased in a private mortuary and the attempt by the appellant to run away. Thus, the evidence is circumstantial in nature.
However, in drawing an inference and reaching a conclusion of guilt from circumstantial evidence leading to the conviction of an accused, it is necessary to be sure that there are no other co-existing circumstances.
In the instant case, the running away from the mortuary after the appellant dropped the deceased corpse leave reasonable ground for speculation which undoubtedly weaken the inference and conclusion by the learned trial judge. In other words, there are existing co-existing circumstances which would weaken or destroy the inference in the instant case. I too allow the set aside the judgment of the trial Court.
Appearances:
Emmanuel Akpan Esq. For Appellant(s)
Emmanuel Ubengamah Esq. For Respondent(s)
