USMAN SULE v. THE STATE (2013)

USMAN SULE v. THE STATE

(2013)LCN/6538(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of November, 2013

CA/EK/86/C/2013

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBANI Justice of The Court of Appeal of Nigeria

Between

USMAN SULE Appellant(s)

AND

THE STATE Respondent(s)

RATIO

INGREDIENTS OF THE OFFENCE OF MURDER

As succinctly put by Mr. Musibau Adetunbi for the Appellant, the Law is settled that for the prosecution to succeed in a charge of murder, it must prove that:
(i) The deceased had died;
(ii) The death of the deceased has resulted from the act of the accused;
(iii) The act of the accused was intentional with knowledge that, death or grievous bodily harm was its probable consequence. See EDWIN OGBA VS THE STATE (1992) 2 NWLR (Pt.222) 164 at 198 paragraph G. OTEKI VS ATTORNEY-GENERAL, BENDEL (1986) 2 NWLR (Pt.24) 648. PER AKINBAMI, J.C.A.

THE POSITION OF THE LAW ON THE CONVICTION OF AN ACCUSED PERSON BASED ON CIRCUMSTANTIAL EVIDENCE

The Law is that for a conviction to be based on circumstantial evidence, the circumstantial evidence must point to only one rational conclusion namely that the offence had been committed and that it was committed by the accused. In other words, the circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused person.
NASIRU VS STATE (1999) 2 NWLR (PT 589) 87. Further, in order to draw the inference of the accused person’s guilt from circumstantial evidence there must not be any other co-existing circumstances which would weaken or destroy the inference. The facts must be such that they cannot be for any other rational hypothesis, other than the guilt of the accused. STATE VS EDOBOR (1975) 9 – 11 SC 69; EZE VS STATE (1976) 1 SC 125; MOHAMMED VS STATE (2007) 13 NWLR (Pt 1050) 186. PER AKINBAMI, J.C.A.

THE BURDEN OF PROOF IN CRIMINAL TRIALS

The burden of proving the guilt of the accused person remained throughout on the prosecution and cannot shift. This includes the burden of leading evidence to disprove any defence set up by the accused or likely to arise in the case. The prosecution cannot be said to have discharged the onus of proof beyond reasonable doubt that the Appellant herein killed the deceased when they did not lead evidence to eliminate the possibility that the deceased may have committed suicide See IDOWU VS STATE (2000) 12 NWLR (Pt 680) 48 at 80 – 81 H – A. ALONGE Vs I.G.P (1959) SCNLR 516. R VS. ABENGUORE (1936) 3 WACA 85, R VS OLEDIMA & ORS (1940) 6 WACA 202. PER AKINBAMI, J.C.A.

THE POSITION OF THE LAW ON WHERE DEATH FOLLOWS INJURY INFLICTED ON A DECEASED PERSON

The Law is well settled that where death follows injury inflicted on the deceased and the fact of the injury relied on without medical evidence is circumstantial evidence of cause of death, the injury suffered must be so well described and be of such a nature, from such description that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie proof of cause of death. See the dictum of Ayoola JSC in the case of AHMED VS STATE (2001) 18 NWLR (Pt 746) 622 at 649 paragraphs E – G. PER AKINBAMI, J.C.A.

THE ONS OF PROOF IN A CHARGE OF MURDER OR MANSLAUGHTER

In the case of AHMED VS STATE (SUPRA) per Kutigi JSC (as he then was) at 652 para. E – F he put the Law clearly as follows:
“It is settled Law that in a charge of murder or manslaughter it is not enough to show that the act of the accused person could have caused the death of the deceased. The prosecution has the onus to prove that it did in fact cause the death, and if the evidence does not prove that he did then the failure of the defence to suggest some other cause not confirm the case for the prosecution (See FRANK ONYENANKEYA VS. THE STATE (1964) ALL NLR 151, R. VS. OLEDINMA 6 WACA 202. The cause of death of the deceased was therefore not proved in Law cases”.
For a circumstantial evidence to be used as a parameter for the conviction of the Appellant in the instant appeal, the testimonies of the prosecution witnesses must answer the questions of what caused the death of the deceased and who caused the death of the deceased. This is the position of the Law in the case of AIGBADON VS STATE (2000) 7 NWLR (Pt.666) 686 at 698 para. G – A.
“Now there can be no doubt that it is trite that in a criminal case a conviction based on circumstantial evidence can be obtained by the prosecution. However, to do so the evidence adduced by the prosecution must be positive, unequivocal and lead irresistibly to the conclusion that it is the accused person that committed the offence charged.” PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The Appellant Usman Sule was arraigned before Adeyeye, J of the High court of Ekiti state, sitting at Ado Ekiti on the 8th day of February, 2010, on a one count charge of murder, contrary to section 319 of the criminal Code, Cap. 30 Vol. II Laws of Ondo State of Nigeria (now Cap. 37 Vol. I revised Laws of Ondo State as applicable to Ekiti State).

STATEMENT OF OFFENCE
MURDER, contrary to section 319 of the Criminal Code, Cap 30 Vol. II, Laws of Ondo State of Nigeria 1978 as applicable to Ekiti State.

PARTICULAR OF OFFENCE
USMAN SULE ‘M’ on or about the 24th day of September, 2005 at about 8.00am at Sabo, Quarters, Aramoko Ekiti Magisterial District did unlawfully cause the death of Mohammed Sheu ‘M’ by stabbing him with a sharp knife. The Appellant pleaded not guilty to the charge.

In brief the prosecution’s case is that the deceased Mohammed Sheu (M) was on the 24th day of September 2005, stabbed to death during a fight between him and the Appellant at Sabo Quarters in Aramoko – Ekiti. The prosecution’s evidence is hinged on circumstantial evidence, obtained from one Musa Sanni (the Head of the Hausas) in Aramoko-Ekiti. He knew both the Appellant and the deceased. He remembered the 24th September 2005, when the Appellant walked up to him to report that the deceased was smoking which he said was risky because of the presence of policemen around. They were cleaning their surroundings, when the Appellant reported the deceased to Musa Sanni. He advised them not to fight and went on his own way. He later saw people shouting and the Appellant with a knife. He heard the people asking the Appellant why he had to kill another person. He remembered that it was Ibrahim Danmani that collected the knife from the Appellant. He prevented the people at the scene from killing the Appellant. He promptly took the Appellant to the police station and handed him over to the Police.

Appellant was arraigned for the murder of the deceased. At the trial of the case, the prosecution called three witnesses. The Appellant testified on his own behalf, and called no other person as witness. Learned Counsel for the parties filed written addresses which were duly adopted. At the close of the case of the prosecution and the defence, the Learned trial Judge, in a considered judgment convicted the Appellant, and sentenced him to death by hanging.
The Appellant aggrieved by the decision of the court, caused a notice of appeal to be filed. This Court granted leave to the Appellant to amend, his notice of appeal, consequent upon which he filed Amended Notice of Appeal on the 22nd July, 2013. The Amended Notice of Appeal contains eight (8) grounds of appeal.
The grounds of appeal without their particulars are as follows:

(1) Ground One
The decision is unreasonable, unwarranted and cannot be supported having regard to the evidence.

(2) Ground Two
The learned Trial Judge erred in Law when he convicted the Appellant of murder notwithstanding the fact that there is possibility that the deceased died of other causes.

(3) Ground Three
The Honourable Trial Judge erred in Law when he held that: “Although the evidence of PW1 may not be regarded as a direct evidence in that he did not watch the act of killing, but his evidence unequivocally leads to the commission of the offence by the accused person”.
(4) Ground Four
The Learned Trial Judge erred in Law when he held thus:
“The story of the accused person in the witness box that he did not know the deceased died was an afterthought. The story of the accused person up to the point that he reported the deceased to PW1 married with the evidence of PW1 and PW2 brings to focus that the accused stabbed the deceased to death as a result of the quarrel which arose between them over the advice of the appellant to the deceased not to smoke Indian Hemp”.

(5) Ground Five
The Learned Trial Judge erred in Law when he held thus:
“The prosecution in my view had therefore proved the case beyond reasonable doubt and I so hold. I found the accused person guilty of the offence of murder as charged and he is accordingly convicted. The accused person shall be hanged by the neck until he be dead”.

(6) Ground Six
The Learned Trial Court erred in Law when he held as follows:
“On whether or not the accused caused the death of the deceased, the prosecution called PW1, the Head of Hausa Community in Aramoko-Ekiti who testified that he intervened in the quarrel and begged the accused and the deceased not to fight only to find out later that the accused had stabbed the deceased. He saw the accused holding knife and people who gathered around the accused person castigating him for killing a fellow human being. He was the person who prevented the accused from being killed in return and he equally alerted the police. PW2 said he recovered a blood stained knife from the accused person. PW3 observed that the deceased was stabbed on the left hand side of his chest. The story of the accused in the witness box that he did not know the deceased died was “an afterthought. The story of the accused person up to the point that he reported the deceased to PW1 married with the evidence of PW1 and PW2 brings to focus that the accused stabbed the deceased to death as a result of quarrel which arose between them over the advice of the Appellant to the deceased not to smoke Indian Hemp”.

(7) Ground Seven
The Learned Trial Judge erred in Law when his Lordship used circumstantial evidence to convict the Appellant for the grievous offence of murder when there are sufficient positive evidence which the prosecution deliberately failed, refused and neglected to call as a witness.

(8) Ground Eight
The Learned Trial Judge erred in Law when he held at page 70 of the record thus:
“Again the nature of injury described by PW3 could not have been self inflicted especially when the accused person was seen holding a knife”. I therefore have no difficulty in coming to the conclusion that the act of the accused person caused the death of the deceased. I came to the conclusion because the accused should know that stabbing a person on the chest or shoulder with a sharp knife is an act that has the probability of causing the death of that person”.

In line with the Rules of this Court parties filed and exchanged briefs of arguments. At the hearing of the appeal on 3rd of October, 2013 the Learned counsel for the Appellant, Musibau Adetunbi adopted the Appellant’s brief of argument filed on the 27th July, 2013 deemed filed on the 3rd October, 2013 as well as the Reply Brief filed on the 13th September, 2013 and urged the court to allow the appeal and set aside the decision of the Court below.

The Learned counsel for the Respondent O. P. Alabi, Deputy Director, Public Prosecutions in the Ekiti Ministry of Justice, adopted the Respondent’s brief filed on the 29th August 2013, and urged on the Court to uphold the conviction and sentence imposed on the Appellant by the court below.

In the Appellant’s brief one lone issue was distilled for determination and it reads thus:

“Considering the entire circumstances of this case, with specific reference to lack of evidence linking the death of the deceased with the act or omission of the Appellant, non calling of any of the eye witnesses and inadmissibility of the evidence the prosecution witnesses would it be right and/or safely said that the prosecution has proved the offence of murder beyond reasonable doubt to deflate the sacred presumption of innocence duly accorded the Appellant under the organic Law of the land” (Grounds 1 – 8).

In his brief of argument, Learned counsel for the Respondent also formulated only one issue for determination:
(1) Whether the Respondent/Prosecution, by the totality of the circumstantial evidence adduced before the Trial Court proved the offence of murder against the Appellant beyond reasonable doubt.

Learned Counsel for the Appellant Musibau Adetunbi Esq after setting out the law on burden of proof in murder trials and what the prosecution must prove to secure a conviction for murder, submitted relying on the cases of EDWIN OGBA V THE STATE (1992) 2 NWLR (PT 222) 164 at 198 PARAGRAPH G; OTEKI V ATTORNEY GENEREAL, BENDEL STATE (1986) 2 NWLR (PT.24) 648 that the prosecution failed abysmally to prove that the act of the Appellant caused the death of the deceased, and that the Appellant knew that death or grievous bodily harm would be the probable consequence of his act.

Counsel submitted that, the evidence adduced by the prosecution as regards the events, and circumstances that led to the death of the deceased, did not allude or point to any direct or indirect act of the Appellant that caused the death of the deceased. Counsel further submitted that, a perusal of the record of appeal shows also that, there is no evidence on record by any of the prosecution witnesses of anything said, done or omitted to be done by the Appellant that can be linked to the death of the deceased or as to be the probable cause of his death. Counsel consequently submitted that, the learned trial Judge was wrong to have held that the prosecution proved a case of conspiracy and murder against the Appellant.

Mr. O. P. Alabi Deputy Director, Public Prosecutions, Ekiti State for the respondent in his brief of argument relying on the case of IBIKUNLE VS STATE (2007) All NWLR (pt 354) 209 submitted that the Learned trial Judge correctly relied on circumstantial evidence. Learned counsel argued that the evidence of the witnesses called by the prosecution, coupled with other circumstantial facts proved at the trial, connected perfectly in an unbroken chain of events leading to the murder of the deceased.

I have set out just the gravamen of the arguments of both counsels. Further details of their submissions will be considered as the need arises in the course of the judgment.

Appellant’s Counsel contends that until and unless the prosecution succeeds in conjunctively proving those three ingredients, the Appellant will be entitled to an acquittal. See ALABI VS STATE (1993) 7 NWLR (PT 307) 511 at 523 paragraph F – H.

Learned Counsel noted that it is vital that not only must all the elements of murder stated above be conjunctively proved. Moreover, it is necessary that the sequence of proving same in the sequence of enquiring must be understood. This is necessary so that the probability of misdirection in Law shall be minimized. In AHMED VS STATE (2001) 18 NWLR (PT 746) 622 at 641/642 Ayoola JSC stated the Law thus:
“Where a person is charged with an offence of culpable homicide, the sequence of inquiry is whether the person alleged to be killed is dead; the cause of his death; and whether any act of the accused person as described in section 220 (a)-(c) is the cause of death. This was not exactly the sequence adopted by the trial judge who proceeded on the footing that “the sequence” of the ingredients of the offence was:
(1) That the death of a human being has occurred.
(2) That the accused person caused the death of that human being.
(3) That the accused intentionally caused the said death or had reason to know that death will be the likely and not the probable consequence of the act”.
In a charge of culpable homicide if the cause of death has not been proved it is futile and illogical to proceed to consider whether it was the accused who caused the death. The primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. The question at that stage is what caused the death and not who. When what caused the death has been ascertained “the question who caused the death is one of causal connection between the act of the accused and the biological cause of death”.

As succinctly put by Mr. Musibau Adetunbi for the Appellant, in the case at hand, the prosecution called 3 witnesses and tendered two confessional statements in an attempt to prove “what caused the death herein, and the fact that there was a ‘causal connection between the act of the Appellant herein, and the ‘biological cause of death’ of the deceased. It is not in dispute that Mohammed Shehu is dead but the pertinent question is: did the prosecution prove what caused his death? If yes, did the prosecution successfully prove who caused the death by establishing in evidence the ‘causal connection’ between any act of the accused and the death of the deceased?

The Learned Trial Judge in an attempt to resolve this pertinent riddle stated among other things at page 67 – 68 of the records thus:

“These interpreters were not called as witnesses by the prosecution. PW2 and PW3 confirmed that the statements of the accused person that is Exhibits ‘B’ and ‘D’ were recorded through interpreters. None of the two interpreters was called as a witness in the case. See QUEEN VS YORRO (1960) 5 FSC 12; OLALEKAN VS THE STATE (2001) 18 NWLR (PT.746) 793”.

The Learned trial Judge, based on the above Supreme Court cases held that Exhibits ‘B’ and ‘D’ are not legally admissible in evidence, since the interpreters of the two confessional statements were not called witnesses in this case, the two exhibits were expunged from the record of the court. Appellant’s counsel submitted that the learned trial Judge was right in law to expunge the two exhibits. See STATE VS SALAWU (2011) 18 NWLR (PT 1279) 580.
The Learned trial Judge on page 68 lines 19 – 23 stated thus:
“With the exclusion of Exhibits ‘B’ and ‘D’ which would have strengthened the case of the prosecution in establishing the guilt of the accused person, the prosecution is left with the evidence of PW1 – PW3. Whether or not these places of evidence will be sufficient to establish the guilt of the accused person will be seen later in the judgment”

The Learned trial Judge thereafter considered the case of the prosecution and that of the defence as well as the possible defence which may be available to the Appellant and thereafter came to the conclusion that the Appellant was guilty as charged.

It was aptly contended by Appellant’s counsel that the gravamen of the testimonies of PW2 and PW3 were oral hearsay. That his Lordship in the course of considering the case of the prosecution committed a grave error, in that neither PW2 nor PW3 witnessed what they testified about and that Exhibits ‘B’ and ‘D’ which his Lordship rightly held to be hearsay and the oral testimonies of PW2 as PW3 were derived from the same sources.

PW2’s testimonies are contained at pages 10 -12 of the record. PW2 testified that PW1 came to the station with the Appellant and that PW1 reported a case of murder against the Appellant. He testified that accompanied by two other officers they went to General Hospital Aramoko-Ekiti and thereafter stated at page 41 lines 9 – 11 thus:

“At the General Hospital we saw the corpse on a stretcher.
I took photograph of the corpse, which was taken to the hospital by Musa Sanni”.
The witness further testified that they came back to the office, he cautioned the Appellant and after which the Appellant volunteered a confessional statement. At page 41 lines 28 – 31 and page 42 lines 1 – 2 PW2 stated thus:

“The accused person volunteered a statement in Hausa language which was interpreted to me in English Language. I recorded the statement in English Language. I only took the second statement. The first statement volunteered by the accused was taken/recorded by PC Edwin Ekwu who understands Hausa very well. The said statement identified by PW2 was tendered and admitted as Exhibit ‘B’ after which he further testified.

At page 42 lines 11 – 14 thus:
“I also recovered a knife with blood stains from the accused person. I later brought the corpse, the knife and the accused to the State CID Ado Ekiti. No post mortem examination was performed on the corpse because the brother of the deceased said it is against their religion. That is all I did in respect of this case”.

Under cross examination PW2 stated thus:
“The knife was recovered at the station and not at the scene. I did not go to the scene of crime, also to my knowledge the accused person saw the corpse”. The testimonies of PW1″ was critically examined by Appellant’s counsel in search of evidence for what caused the death of the deceased and whether there was a causal connection between any of the acts of the appellant and the death of the deceased.

Appellant’s counsel contended from the testimony of PW2:
(1) That PW2 recovered a knife stained with blood from the appellant at the Police station.
(2) PW2 saw the corpse (probably that of the deceased) at the station.
(3) PW2 took photograph of the corpse which he saw and tendered same.
Appellant’s counsel deduced that there is nothing again useful to the prosecution in the evidence of PW2. Though the Appellant told PW2, something through Corporal Tanko Lawal, but since Tanko Lawal was not called by the prosecution, whatever PW2 might have heard from Tanko Lawal whether he did put same down or stated same orally, same remains inadmissible.

Appellant’s counsel for emphasis elucidated the fact that PW2 did not say that he saw or observed any wound on the deceased. He did not say that PW1 identified the corpse which he saw to be that of the deceased Mohammed Sheu. He did not say he sought for any explanation from the appellant in respect of the knife he recovered and the corpse he saw.

On the evidence of PW3, Appellant’s counsel submitted that he did not describe the nature of the wound which he saw or observed on the corpse of the deceased, proferred evidence is thus summarized by Appellant’s counsel as follows:
(1) The Appellant reported the deceased to PW1 as attempting to smoke something unknown to PW1 but which must not be seen by policemen.
(2) PW1 warned the Appellant and the deceased not to fight and thereafter went out.
(3) By the time he, PW1 was coming back he saw some people shouting and he saw a knife in the hand of the Appellant.
(4) He PW1 heard the people shouting saying that the Appellant had killed somebody and that they attempted to mob the Appellant.
(5) He PW1 witnessed Ibrahim Danmani collecting the knife from the Appellant and he emphatically said that the said Ibrahim Danmani witnessed the act of killing the deceased by the Appellant.
(6) Finally, he took the Appellant to the police station.
Appellant’s counsel emphatically noted that PW1 did not say he made any attempt to identify who the Appellant was accused of killing. He did not say he noticed any wound either on the body of the deceased and or any other person. He did not say that he inquired from the mob who the Appellant killed.
See JAMB Vs ORJI (2008) NWLR (PT 1072) 552.

Mr. Musibau Adetunbi Appellant’s counsel submitted that at this stage that it is obvious that the substantial testimonies of PW2 and PW3 are inadmissible hearsay evidence. Equally the most significant evidence of PW1 which tends to show what caused the death and the causal connection between the act of the appellant and the death of the deceased is equally hearsay evidence which is inadmissible in Law. The contention of the Learned Appellant’s counsel gains judicial endorsement in the case of MAIYAKI VS STATE (2008) 3 NWLR (PT.1075) 429.

Learned Counsel itemized pieces of evidence of PW1, PW2 and PW3 as follows:

PW1
(1) The Appellant reported the deceased to PW1 as attempting to smoke something unknown to PW1 but which must not be seen by policemen.
(2) PW1 warned the Appellant and the deceased not to fight and thereafter went out.
(3) By the time he was coming back he saw some people shouting and he saw a knife in the hand of the Appellant.
(4) He witnessed Ibrahim Danmani collecting the knife from the Appellant and he emphatically said that the said Ibrahim Danmani witnessed the act of killing the deceased by the Appellant.
(5) Finally, he took the Appellant to the police station. Ref. to page 37 of the record.

PW2
(1) PW2 recovered a knife stained with blood from the Appellant at the police station.
(2) PW2 saw the corpse (probably that of the deceased) at the station.
(3) PW2 took the photograph of the corpse which he saw and tendered same. Ref. to pages 40 – 42 of the record.

PW3
(1) He testified that he saw the wound.
(2) He testified that he released the corpse to a brother of the deceased Ref. to pages 48 – 49 of the record’

On the other hand, the summary of the testimonies of the Appellant is as follows:
(1) He cautioned the deceased not to smoke Indian Hemp and reported him to PW1 for attempting to smoke Indian Hemp when Law enforcement officers were around
(2) That he did not hold any knife and he did not use any knife on the deceased.
(3) The deceased attacked him and even slapped him.
(4) He claimed not to know where about of the deceased.

The case at hand is that the Appellant stabbed the deceased and that he died shortly thereafter. It was well enunciated by Appellant’s counsel that the prosecution bore the burden to adduce either direct or indirect evidence showing conclusively that the Appellant was in possession of a knife with which he inflicted injury or wound on the deceased and consequent upon which the deceased died. Rather at the close of the case of the prosecution, the prosecution left so many questions unanswered.

PW1 was the only witness who testified that he saw a knife in the hand of the Appellant. That one Ibrahim Danmani retrieved the same knife from the hand of the Appellant at the scene of crime and he took the Appellant to the police station. (See page 37 of the record) whilst PW2 testified emphatically that he retrieved the said knife from the hand of the Appellant at the police station.

Appellant’s counsel posed the question: How many knives were recovered from the Appellant? Was it one or two? Who exactly retrieved the knife or knives? Was it PW2 or Ibrahim Danmani? The Learned Trial Judge accepted the testimony of PW1 that he saw a knife stained with blood in the hand of the Appellant. (See Page 70 of the record). Learned counsel asked the question which knife? Was it the knife retrieved by Ibrahim Danmani or the one retrieved by PW2? Was it proper for the Learned Trial Judge to have accepted that the Appellant was in possession of a knife without the evidence of Ibrahim Danmani who was said to have retrieved the said knife. Clearly there is contradiction between the evidence of PW1 and PW2 on how and when the said knife was retrieved, and coupled with the fact that the Appellant denied being in possession of any knife.
The inadmissibility of PW1’s testimony was well elucidated by Appellant’s counsel in the absence of the people he claimed told him that the Appellant had killed “another person”. Aside from the fact that this piece of evidence remains inadmissible there are still unanswered questions surrounding it which are who was this another person? How was he killed?
I must note that from all the evidence before the court these questions were never answered.

On PW2’s testimony, Appellant’s counsel dislodged it in that he claimed he saw a corpse, but did not state whether there was a wound on the corpse or not, whilst PW3 observed a wound on the left shoulder of the deceased, but aside from that fact he failed to expatiate or describe the wound, neither did he give particulars as to the cause of the wound.
I agree with Appellant’s counsel that for the Learned Trial Judge to hold that the ” evidence of PW1 may not be regarded as a direct evidence in that he did not watch the act of killing, but his evidence unequivocally leads to the commission of the offence by the accused person”. It must be unequivocally shown that the Appellant was in possession of a knife at the scene of crime and that same was used on the deceased by him. But the contradiction in the evidence of PW1 and PW2 created a doubt on the issue of whether the Appellant was in possession of a knife hence it could not be said that the contradiction is minor.

It was rightly pointed out by Appellant’s counsel that the testimony of PW1 nor any other witness did not trace the origin of the knife that was alleged to have been seen with the Appellant. Where and how did the Appellant come across the knife he was said to be holding? Where did PW1 see the Appellant? Was it outside the house or inside the house? PW1 was silent on the fact whether he saw the corpse of the deceased in a pool of his own blood when he returned. Appellant’s counsel asked the very pertinent question where actually was the scene of the crime? Was it inside the house or outside the house? I agree with Appellant’s counsel that the answers to these questions are very germane to this whole case.

It was succinctly put by Appellant’s counsel that the failure of the prosecution to answer all the above questions by way of credible evidence, the usage of circumstantial evidence to hold the Appellant guilty as charged and it rendered the pronouncement of the Learned Trial Judge that the evidence of PW1 circumstantially proved the guilt of the Appellant beyond reasonable doubt to be pronouncement without foundation.

The facts which the lower court deemed circumstantial evidence sufficient to convict the Appellant are as follows:
“The prosecution called PW1, the head of Hausa Community in Aramoko Ekiti, who testified that he intervened in the quarrel between the Appellant and the deceased earlier in the morning of the 24th September, 2005, and begged the Appellant and the deceased not to fight only to find out later that the Appellant had stabbed the deceased. He saw the Appellant holding a knife and people who gathered around the Appellant castigating him for killing a fellow human being. He prevented the Appellant from being mobbed and he took him to the police station. PW2 in his own testimony intimated the lower court that he recovered a blood stained knife from the Appellant”.

PW3 on his part observed that the deceased was stabbed on the left hand side of his chest. The story of the Appellant in the witness box that he did not know how the deceased died was an afterthought. The story of the Appellant up to the point that he reported the deceased to PW1 married with the evidence of PW1 and PW2 brings to focus that the accused stabbed the deceased to death as a result of the quarrel which arose between them over the advice of the Appellant to the deceased not to smoke Indian Hemp”.

The learned Trial Judge rejected the made up story of the Appellant tending to deny any involvement in the killing of the deceased and the submission of counsel that the deceased’s death could have been caused by any other factor such as the deceased who smokes Indian hemp could have killed himself. It was the conclusion of the Learned trial Judge that although the evidence of PW1 may not be regarded as a direct evidence in that he did not watch the act of killing but his evidence unequivocally leads to the commission of the offence by the accused person.

O. P. Alabi for the respondent in his brief argued that the evidence led by PW1, PW2 and PW3 with other circumstantial facts proved at the trial that the Respondent succeeded in proving the offence of murder against the Appellant beyond reasonable doubt. That notwithstanding the calling of only three, out of the six witnesses listed in the proof of evidence the Respondent was able to establish the major ingredients of murder alleged against the Appellant.

The facts which the lower court deemed circumstantial evidence sufficient to convict the Appellant are as follows:
“The deceased was said to have been stabbed on the left side of his chest by the Appellant with a sharp knife. The Appellant was seen with a blood stained knife at the scene in the midst of people who wanted to kill him in retaliation and the deceased died almost immediately as PW2 said he visited the hospital immediately after the case was reported and saw the corpse of the deceased on a stretcher in the hospital. There was therefore sufficient evidence tying the accused to the murder of the deceased. In the case of AKPA VS THE STATE (2008) ALL FWLR (Pt 420) 644 at 662 the Supreme Court held that an accused person could be convicted of murder even if the body was not found if there is enough compelling circumstantial evidence that the accused person killed the deceased.
The Court went further that a court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence.
Again the nature of injury described by PW3 could not have been self inflicted especially when the accused person was seen holding a knife. I therefore have no difficulty in coming to the conclusion that the act of the accused person caused the death of the deceased. I come to the conclusion because the accused should know that stabbing a person on the chest or shoulder with a sharp knife is an act that has the probability of causing the death of that person. The Law presumes that a man intends the natural and probable consequences of his acts, and the test to be applied in the circumstance is the objective test, namely, the test of what a reasonable man would contemplate as the probable result of his acts. See IBIKUNLE Vs THE STATE (2007) ALL FWLR (Pt 354) 209. The accused person in this case in my view knew that the death of the deceased would be the probable consequence of his act. It is clear that the act of stabbing resulted in the death of the deceased”.
“In conclusion, I have found that the accused person’s act of stabbing Mohammed Sheu at the shoulder caused his death and that he did the act with the knowledge that his death would be the probable consequence. I have also found that the defences of self defence and provocation are not available to the accused person”.

As far as the Appellant herein is concerned, I have no doubt in my mind that the facts above fall gravely short of the standard required to secure a conviction against him based on circumstantial evidence. The only facts concerning the Appellant is that he was seen at the scene of crime holding a knife.
I agree with Appellant’s counsel that for it to be held as done by the Learned Trial Judge that the evidence of PW1 unequivocally leads to the commission of the offence by the accused person, it must be unequivocally shown that the Appellant was in possession of a knife at the scene of crime and that same was used on the deceased by him. But the contradiction in the evidence of PW1 and PW2 created a doubt on the issue of whether the Appellant was in possession of a knife hence it could not be said that the contradiction is minor. However neither the testimony of PW1 nor any other witness traced the origin of the knife that was alleged to be seen with the Appellant. Where and how did the Appellant come across the knife he was said to be holding? Where did PW1 see appellant? Was it outside the house or inside the house? PW1 saw the Appellant when he was coming back but he did not testify that he equally saw the deceased either as a dead person or in his pool of blood or wounded or injured person. Then where actually was the scene of crime? Was it inside the house or outside the house? If it was inside the house, who saw the Appellant coming out of the house with a knife? lf it was outside the house why did PW1 not see the deceased either in his pool of blood or as a wounded person?

I agree with Appellant’s counsel that the failure of the prosecution to answer all the above stated questions by way of credible evidence murdered the usage of circumstantial evidence to hold the Appellant guilty as charged and rendered the pronouncement of the Learned Trial Judge that the evidence of PW1 circumstantially proved the guilt of the Appellant beyond reasonable doubt to be a pronouncement without foundation.

With regards to the Doctrine of last seen O. P. Alabi surmised that actually it works in favour of the Respondent to substantiate the circumstantial evidence that it was the act of the Appellant that caused the death of the deceased. He referred to the case of OSUAHA VS STATE (2010) 16 NWLR (Pt 1021) at page 364 Ratio 19 at 377. At page 6 of his brief, Mr. Alabi went further to present the evidence of PW1 that he testified as to how he met the Appellant amidst a crowd who accused him of murder and wanted to lynch him. He also gave evidence as to the fact that the Appellant was holding a knife as at that time. PW1 stated how he rescued the Appellant and took him to the Police station in Aramoko-Ekiti. PW2 who was the Investigation Police Officer at the station substantially corroborated the evidence of PW1 as to the fact that the latter was the one that brought the Appellant to the station, and also took the corpse of the deceased to the hospital. Also PW2 testified that he recovered a knife from the Appellant at the station. With all due respect to the Learned counsel l do not agree with his view.

The evidence led in this case by the three witnesses called by the prosecution was simply inadequate to discharge the burden on the prosecution to prove the case beyond reasonable doubt. The prosecution failed to link the commission of the crime to the Appellant, all they laid before the Honourable Trial Court was suspicion and rumours from those present at the scene of the crime, which were uninvestigated and thus could not ground the conviction and sentence of the appellant. See KALU VS STATE (1993) 3 NWLR (Pt 279) 20 at 32-33 paragraphs G – A.
“suspicion and gossip may have been disseminated and unproved accusation made. “The nagging question to answer is who did the deed? Suspicion however strong cannot resolve that crucial issue. That must be conclusively proved by admissible evidence. Failure or omission to do so swings the doubt arising therefore in favour of the Appellant’s acquittal. The quality of circumstantial evidence inferable from the totality of the evidence produced in this case is not only unconvincing but incomplete, especially as to effective cause of the deceased’s death. Besides it lacks the force to compel the court to decide positively that the Appellant and no other person or persons murdered him”.
With due respect to Mr. Alabi I must state that the facts he laid before the court consists of suspicions, rumours and gossip, and thus lack the force to compel the court to decide positively that the Appellant committed the crime. The evidence all put together failed to answer the question. Who did the deed? There is no doubt that the inconclusive evidence of PW1, PW2 and PW3 leaves one with suspicions as to what actually happened. But suspicion no matter how strong can never found a conviction in the absence of cogent and compelling evidence. In AKINMOJU VS STATE (1995) 7 NWLR (Pt 406) 204. It was observed referring to some English authority that circumstantial evidence is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. The evidence led in this case by the three witnesses called by the prosecution was inadequate to discharge the burden on the prosecution to prove the case beyond reasonable doubt.

The prosecution contended before the Learned Trial Judge that the Appellant stabbed the deceased and that he died shortly thereafter. PW1 was the only eye witness who testified that he saw a knife in the hand of the Appellant. He testified emphatically that one Ibrahim Danmani retrieved the knife from the hand of the Appellant at the scene of crime and that he took the Appellant to the police station. (See page 37 of the record) PW2 testified emphatically that he retrieved the said knife from the hand of the Appellant at the station. I must note that the prosecution did not ascertain with clarity the number of knives retrieved from the Appellant and by whom.

The Learned Trial Judge was in error to have accepted the testimony of PW1, that he saw a knife stained with blood in the hand of the Appellant (See page 70 of the record). The question is which knife? Was it the knife retrieved by Ibrahim Danmani or the one retrieved by PW2? There is contradiction between the evidence of PW1 and PW2 on how and when the said knife was retrieved and coupled with the fact that the Appellant denied being in possession of any knife.

The evidence of PW1 and PW2 were not properly evaluated by the Learned Trial Judge in that PW1 testified that he heard people saying that the Appellant had killed “another person”. There was no witness before the court to give evidence of the actual commission, the act of killing another person. The court was not told how the deceased was killed.

PW2 saw a corpse but he did not state that he saw any wound on the corpse. PW3 observed a wound on the left shoulder of the deceased but aside from the fact that he did not describe the wound; he did not state what caused the wound.
The Learned Trial Judge at page 69 lines 15 – 18 held thus:
“I reject the make-up story of the accused tending to deny any “Involvement in the killing of the deceased and the submission of counsel that the deceased’s death could have been caused by any other factor such as the deceased who smoked hemp could have killed himself. Although the evidence of PW1 may not be regarded as a direct evidence in that he did not watch the act of killing but his evidence unequivocally leads to the commission of the offence by the accused person”.
For the Learned Trial Judge to have held that the evidence of PW1 unequivocally leads to the “commission of the offence by the accused person” it must be unequivocally shown that the Appellant was in possession of a knife at the scene of crime and that same was used on the deceased by him. The contradiction in the evidence of PW1 and PW2 created a doubt on the issue of whether the Appellant was in possession of a knife hence it could not be said that the contradiction is minor. Neither the testimony of PW1 nor any other witness traced the origin of the knife that was alleged to be seen with the Appellant. Where and how did the Appellant come across the knife he was said to be holding? Where did PW1 see the Appellant? Was it outside the house or inside the house? PW1 saw the deceased when he was coming back but he did not testify that he equally saw the deceased either as a dead person or in his pool of blood or a wounded or injured person. Then, where actually was the scene of crime? Was it inside the house or outside the house? If it is inside the house who saw the Appellant coming out of the house with a knife? lf it was outside the house why did PW1 not see the deceased either in his pool of blood or as a wounded person? Failure of the prosecution to answer all the above stated questions by way of credible evidence murdered the usage of circumstantial evidence to hold the Appellant guilty as charged and rendered the pronouncement of the Learned Trial Judge that the evidence of PW1 circumstantially proved the guilt of the Appellant beyond reasonable doubt to be a pronouncement without foundation.

The Learned Trial Judge was wrong to have placed so much reliance on the evidence of PW1 and PW2. The prosecution clearly did a shoddy job in the investigation of the case. Worst of all, the interpreters who interpreted the statement of the Appellant were not called to give evidence.

Ibrahim Danmani whom PW1 said was an eye witness to the commission of the crime was not called as a witness at all. Likewise all the people at the scene of the crime who witnessed the commission of the crime who were described as querying the Appellant after the commission of the crime were not called as witnesses. The Appellant denied owning the knife which he was alleged to have used to kill the deceased. Despite the denial the prosecution failed to proffer positive evidence showing that the Appellant in fact committed the offence.

Appellant on page 14 of the Appellant’s brief contended that there were eye witnesses to the crime, but they were not called in evidence, the PW1 mentioned the name of one Ibrahim Danmani but he was not called as a ‘witness, there was obviously no evidence that the death resulted from the act of the Appellant there was nothing to show from the totality of evidence that the Appellant stabbed the deceased at all. Thus, Appellant submitted that before the burden on the prosecution would be discharged there ought to have been a forensic and laboratory analysis of the knife to show the nexus “between the Appellant and the said knife. The knife should have been examined for finger prints too, these were not done, and even the knife was lost”.

The main issue here is that the Appellant relied on the defence that the deceased committed suicide by stabbing or falling over the knife, while the prosecution claims he was killed by the Appellant. The prosecution is consequently duty bound to lead evidence to eliminate the possibility that the deceased committed suicide. This the prosecution failed to do. It is surprising that the prosecution failed to call as witness any of the numerous persons said to have attempted to mob the Appellant. Under cross examination at page 37 of the record, PW1 said “l did not know what the deceased was smoking that time. I was not there when the incident happened”.

From the above testimony, it is obvious, that PW1 was not an eye witness to the events culminating in the death of the deceased. PW1 referred to the fact that Ibrahim Danmani was an eye witness to the incident that led to the death of the deceased. So also there was a mob which attempted to lynch the Appellant.

The question is why did the prosecution not call any of those eye witnesses mentioned by PW1 to give evidence? No explanation whatever was given for the failure to call any of them. There was no evidence in the record of appeal that attempt to secure their attendance was unsuccessful. In short no effort whatever was made to call any of them. On this issue the Supreme Court case of ONAH VS STATE (1985) 3 NWLR (Pt 12) 236 is quite illuminating. The Appellant was convicted of murder and sentenced to death by the Anambra State High Court. She was alleged to have killed one Edengwu Ogwa, a relation of her husband, by inflicting matchet cuts on her. The evidence against the accused was mainly circumstantial. The corpse of the deceased was found close to her compound. Blood stains were found on her wrapper. A blood stained matchet was found in her room which she shared with her husband. Matchet cuts were found on the deceased. There was however no positive evidence linking the accused with the actual killing of the deceased. The prosecution during the trial failed to call a witness one Eke Agbo, who seemed to know more than anybody else the circumstances surrounding the killing and whose evidence could have helped in deciding the case one way or the other. Nevertheless, the Learned trial Judge convicted the accused as charged, and this was confirmed by the Court of Appeal. The Supreme Court set aside the conviction holding that although in criminal cases, the prosecution has the discretion to call whichever witness it considers necessary to prove the offence charged, its failure to call very vital witnesses whose evidence may determine the case one way or the other will be fatal to the case. At pages 241 – 242 paragraphs F – A of the Judgment Uwais, JSC (as he then was) observed;
“There is no doubt that this appeal is well grounded on the argument that the circumstantial evidence adduced by the prosecution is not so irresistible that the appellant could have been found guilty of murder by the trial court. It is not in dispute that there was no eye witness to the killing of the deceased. The evidence which positively indicated that the Appellant was responsible for the murder of the deceased was the evidence of PW4 whose testimony was based on the ipse dixit of Eke Agbo. Eke Agbo was not called as a witness by the prosecution. She is a vital witness in the case as the inference to be drawn from the prosecution evidence is that either she was an eye-witness to the Appellant committing the offence or that the Appellant confessed to her that she (the appellant killed the deceased). In the absence of her evidence the important question as to whether the Appellant is guilty of the offence charged could not have been properly resolved by the Learned trial Judge. This is the more so since the evidence of PW4 that Eke Agbo told her that the Appellant killed the deceased had been shown under cross examination of the witness to be inadmissible as hearsay, because PW4 admitted that at the time Eke Agbo narrated the story, the Appellant was not present. It was outside the house of PW4 that Eke Agbo narrated the story. Therefore the failure of the prosecution to call Eke Agbo as a witness was fatal to that case – See OPAYEMI VS THE STATE (1985) 2 NWLR (Pt 5) 101 at 108 and ABDULKADIR GUSAU VS COMMISSIONER OF POLICE (1968) NMLR 329”.

Just as in the above case, I think that the failure by the prosecution to call vital witnesses who were present at the time of the alleged stabbing of the deceased is fatal to the prosecution’s case.

The witnesses not called are vital for the proof of the prosecution’s case. Indeed the Law is that where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, that had that witness been called, his evidence would have been unfavourable to the party who called him. Section 149 (d) of the Evidence Act. How else does one explain the fact that so many persons were mentioned in the evidence adduced by the prosecution who were said to be eye witnesses to the incident, yet the prosecution failed to call any of the witnesses but called the witnesses who were not present and could only give hearsay evidence that the deceased was killed by the Appellant. The only rational explanation is that if those witnesses had been called their evidence would have been unfavourable to the prosecution.

The surrounding circumstances of this case are not cogent, positive and compellingly linking the Appellant to the commission of the offence of murder.

The prosecution has woefully failed to show any nexus to reflect that it is the Appellant that killed the deceased and resolve the issue of non calling of vital witnesses against the prosecution.

The poser that comes to our learning mind is whether the prosecution witness gave any description of the injury and the nature of the injury so described as what caused the death of the deceased herein.
The only piece of evidence before the trial court which tends to show this is from PW3 where he testified at page 48 lines 33 – 34 of the Record of Appeal as follows:
“On my observation of the corpse of the deceased, I saw wound on the left side of his shoulder”.

The only thing deducible from the above piece of evidence is that there was a wound on the left side of the shoulder of the deceased. Of what degree or dept is the injury? Did PW3 testify that the deceased died as a result of the injury he had on the left shoulder? How long was the knife recovered from the Appellant? Was it long enough to touch the heart, vein, or arteries? Did the knife cut any vein? Did the knife cut any arteries? Did the accused bleed to death? All these questions were not answered from the testimonies of the prosecution witnesses. From the circumstances of this case, there is nothing that is suggestive of the conclusion that the Appellant caused the death of the deceased and as such the surrounding circumstances of this case are not positive, cogent and compelling enough to inescapably link the Appellant with the commission of the offence of murder.
The observation of PW3 could not be used as the cause of the death of the deceased because he was not present at the scene of crime and there was no evidence before the trial court to show that PW3 is a medical practitioner that could give a professional remark on the cause of the death which did not happen in his presence.
In the case of AHMED VS STATE (SUPRA) per Kutigi JSC (as he then was) at 652 para. E – F he put the Law clearly as follows:
“It is settled Law that in a charge of murder or manslaughter it is not enough to show that the act of the accused person could have caused the death of the deceased. The prosecution has the onus to prove that it did in fact cause the death, and if the evidence does not prove that he did then the failure of the defence to suggest some other cause not confirm the case for the prosecution (See FRANK ONYENANKEYA VS. THE STATE (1964) ALL NLR 151, R. VS. OLEDINMA 6 WACA 202. The cause of death of the deceased was therefore not proved in Law cases”.
For a circumstantial evidence to be used as a parameter for the conviction of the Appellant in the instant appeal, the testimonies of the prosecution witnesses must answer the questions of what caused the death of the deceased and who caused the death of the deceased. This is the position of the Law in the case of AIGBADON VS STATE (2000) 7 NWLR (Pt.666) 686 at 698 para. G – A.
“Now there can be no doubt that it is trite that in a criminal case a conviction based on circumstantial evidence can be obtained by the prosecution. However, to do so the evidence adduced by the prosecution must be positive, unequivocal and lead irresistibly to the conclusion that it is the accused person that committed the offence charged.” In the present case there is no doubt that the deceased was at all material times in company of the Appellant before he was taken to the hospital on the 4th day of December, 1999 where he was pronounced dead. The questions the prosecution must prove are: What caused the death of the deceased? And who caused the death?
Failure of the prosecution to show the cause of the death of the deceased and that the appellant caused it in this appeal is vital to the proving of the 2nd element of the offence of murder.

Musibau Adetunbi Esq showed the war that exists in the prosecution’s case, that PW1 was not only emphatic on the fact that Ibrahim Danmani witnessed the commission of the offence of murder but equally testified at page 37 lines 21 – 22 of the record that “it was Ibrahim Danmani who collected the knife from the accused person” PW2 was very sincere when he testified that he did not visit the scene of the crime. He testified at page 42 lines 12 – 13 of the Record that “l also recovered a kindle (sic) knife with blood stain from the accused person”. The combined effect of PW1 and PW2’s testimonies takes us back to the said Ibrahim Danmani whom PW1 said collected the knife from the Appellant.
Even PW2 gave evidence that the knife was recovered at the Police Station, then he asked, how did the knife get to the police station? There was no evidence that Ibrahim Danmani went to the Police Station, neither was there evidence that PW1, collected the knife from Ibrahim Danmani. In this particular instance, he submitted that it is incumbent on the prosecution to lay all these facts bare before the court, because they are important and vital indication to the guilt of the Appellant bearing in mind that the Appellant denied committing the offence at all. Except this is done, he submitted that the prosecution simply put together a ‘fairy tale’ which is totally unable to ground a conviction.

The major problem with the case of the prosecution is the failure of the prosecution to call a vital witness i.e Ibrahim Danmani, who was an eye witness and he ought to have been called. Alternatively, PW2 made it clear that the Appellant volunteered a confessional statement to one P C Edwin Ekwu who was said to understand Hausa Language very well (See pages 41 and 42 of the record of appeal). His statement would have been tendered by him without calling any interpreter. He understood the Appellant also the Appellant understood him. Surprisingly the prosecution left him out.
This has very grave implications for the prosecution. The prosecution is bound to fail and indeed it failed.
In OPAYEMI VS STATE (1985) 2NWLR (Pt.5) 101 Uwais, JSC (as he then was) reviewed the consequences of the failure of the prosecution to call a vital witness as in the case at hand. At pages 108 – 109 his Lordship reviewed several authorities and at page 109 paragraph C – D he concluded thus:
“These decisions have marked a departure from that part of the decision in R. V Essien (Supra) which stipulates that the prosecution have a duty to call all known material witnesses irrespective of whether their evidences will support the prosecution’s case or not. However, it seems to me that this is not to say that if there is an important issue in a case the determination of which will settle the case one way or the other as in Essien’s case, then it will not be necessary for the prosecution to call the witness whose testimony will lead to that conclusion see ABDULKADIR GUSAU VS COMMISSIONER OF POLICE (1968) NMLR 329”. Also in STATE VS AZEEZ (2008) 14 NWLR (pt 1108) 439 at 474 paragraphs G – F.
Mohammed, JSC reviewed the failure of the prosecution to call necessary witness and stated thus:
“It appears there was no statement recorded from the photographer. In any event, even the statement of the machine operator, as reproduced above, was never tendered in evidence as the machine operator was not called to testify.

I entirely agree with the court below in its decision and the Learned counsel for the Respondent in his submission that in a capital offence such as the one for which the Respondents were sentenced to death by hanging, the prosecution should have called independent witnesses who, from the evidence of the prosecution witnesses (as summarised above were said to be at the scene of the incident, namely the machine operator and the photographer who played key roles in the matter”.

It is surprising how the prosecution sidelined independent witnesses who had a lot to say on the whole saga. Although the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on him by the Law before securing conviction, yet the Law is very emphatic that where there exists a vital point in issue and there are witnesses whose evidence would settle that issue one way or the other these witnesses ought to be called. This court stated the Law, Per Adio, JSC (of blessed memory), in the case of STATE VS NNOLIM (1994) 5 NWLR (Pt.345) 394 at 406 C – D, that:
“A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution case – See further OMOGODO VS THE STATE (1981) 5 SC 5; ONAH VS THE STATE (1985) 3 NWLR (Pt 12) 236. For whatever reason, the machine operator (whose statement was already had on record) and the photographer, were not called to testify in this case, that failure in my view is fatal to the prosecution’s case. The machine operator and the photographer were said to be present at the scene of the crime. They saw, they heard and they had the experience of what transpired there. They would have told a better objective and unprejudiced account of what actually transpired at locus criminis. No one who comes across the facts of this case would imagine the two vital eye witnesses to be dropped from the prosecution’s witnesses. Their evidence would have been more independent and objective”.
Just as in the above case I think that the failure by the prosecution to call vital witnesses who were present at the time of the alleged stabbing of the deceased is fatal to their case. The prosecution failed to prove its case in accordance with settled standard of proving guilt beyond reasonable doubt.
It is trite Law that in a charge of murder, as in this case the essential ingredients that the prosecution must establish in order to succeed are:
(a) That the deceased has died.
(b) That the death of the said deceased has resulted from the act of the accused.
(c) That the act of the accused was intentional with knowledge that the death or grievous bodily harm was its probable consequence
– see AKINFE Vs STATE (1988) 3 NWLR (Pt 85) 729; OGBA VS THE STATE (1992) 2 NWLR (part 222) 164 at 198; OTEKI VS A-G. BENDEL STATE (1986) 2 NWLR (Pt 24) 648; ONAH VS THE STATE (1985) 2 NWLR (Pt 12) 236.
The prosecution cannot succeed in establishing the guilt of the accused charged with murder, as in this case, unless it not only established the cause of death but established in addition thereto that the act of the accused person caused the death of the deceased. See GBADAMOSI VS THE STATE (1992) 9 NWLR (Pt 266) 466 at 478; AFOLABI VS C.O.P (1961) 2 S.C. NLR 302, EKPE Vs THE STATE (1994) 9 NWLR (Pt 368) 268 at 269.

In the instant case, there is no doubt whatsoever that the deceased died: thus satisfying the first essential ingredient of the offence of murder as charged. However, the dispute between the prosecution and the Appellant is as regards the 2nd and 3rd ingredients of the offence – that is whether the death of the deceased is as a result of the act of the Appellant and whether the act of the Appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence. While the prosecution contends that these had been satisfied by the evidence produced at the trial, the Appellant or defence submits the negative. The Learned trial Judge based this case on circumstantial evidence.

The term circumstantial evidence has been variously defined by the courts over the years and it is generally accepted to mean evidence of surrounding circumstance which, by coincidence is capable of proving a proposition with the accuracy of mathematics.

Circumstantial evidence is usually relied upon by both the prosecution and the court, where direct evidence is not available but that evidence must be cogent and pointing irresistibly and unequivocally as well as compelling at the accused person as the one who committed the offence See UKORAH VS STATE (1977) 4 SC 167.
FATOYINBO VS A. G. WESTERN NIGERIA (1966) WNLR 4; ALANO VS A. G. BENDEL STATE (1988) 2 NWLR (Pt 75) 201; OGBA VS STATE (SUPRA).

It has been held that although eye witness or other evidence is the ideal in establishing guilt, there are situations where circumstances can clearly and forcibly suggest that the accused and no one else must have committed the offence with which he is charged. In relying on such circumstantial evidence to determine guilt of the accused, the said evidence relied upon must if accepted make a complete and unbroken chain so as to constitute sufficient proof that the accused person committed the offence with which he is charged see AELRE VS STATE (1980) 1-2 SC 116; OMOGODO VS STATE (1981) 5 SC 5; STATE VS OGBUBUNJO (2001) 2 NWLR (Pt 698) 576.

A review of cases involving reliance on circumstantial evidence reveals that circumstantial evidence and suspicion operate in the same arena though mutually exclusive. That is why all courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished while the guilty is set free. The courts act on evidence, not on hunches, rumours or suspicion so as to ensure that justice in its purest form is administered in the courts to all and sundry. That is why it is the law that suspicion however strong cannot take the place of legal proof as it does not amount to proof. The courts therefore do not act on suspicion or rumour. See ONAH VS STATE (SUPRA), EMINE VS STATE (1991) 7 NWLR (Pt 204) 408. CLARK VS STATE (1986) 4 NWLR (pt 35) 581. BOZIN Vs STATE (1985) 7 NWLR (Pt 8) 405; POPOOLA vs C.D.P (1964) NWLR 1; OKAFOR Vs POLICE (1965) NMLR 89; BABALOLA vs STATE (1989) 4 NWLR (PT 115) 364; ALOR VS STATE (1997) 1 NWLR (Pt 501) 511; OKODUWA VS STATE (1980) 8 – 11 SC 333.

From the submission of Appellant’s counsel, it is very clear that his contention is simply that though the Appellant can be suspected of having killed the deceased that suspicion does not amount to legal proof.
The failure of the prosecution to produce the evidence of the eye witness i.e. Ibrahim Danmani defeated the circumstantial evidence relied upon by the trial court in convicting the Appellant.

The reliance on circumstantial evidence by the prosecution in this case is to satisfy the requirement of the law as to the standard of proof required in a criminal proceeding which is always that the offence charged must be proved beyond reasonable doubt.

In conclusion I find merit in the appeal which is accordingly allowed. The judgment of Hon. Justice J. O. Adeyeye in charge No. HAD/32C/2009 delivered on the 28th day of March 2013 convicting the Appellant of the offence of murder contrary to section 319 of the criminal code and sentencing him to death by hanging is hereby set aside. In its place it is hereby substituted an order that the Appellant be and is hereby discharged and acquitted for failure of the prosecution to prove the charge beyond reasonable doubt. Appeal allowed.

PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Akinbami, JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

To secure a conviction on a charge of murder, the prosecution must prove:
1. That the deceased had died
2. That the death of the deceased was caused by the accused, and
3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
These three ingredients must co-exist or else the prosecution’s case will fail.

The evidence relied upon to establish a charge of murder may be direct or circumstantial. Whether this evidence is direct or circumstantial, it must establish the guilt of the accused person beyond reasonable doubt.

The duty to establish the guilt of the accused person beyond reasonable doubt lies with the prosecution and in general, it never shifts.
For circumstantial evidence to ground a conviction, it must lead only to one conclusion, namely, the guilt of the accused person.

In the instant case, the prosecution led evidence through three witnesses in proof of its case. PW1, who gave his name as Musa Sanni, the leader of the Hausa community in Aramoko-Ekiti, where the alleged offence took place, testified that the deceased actually died. He further testified that the Appellant on 24th September, 2009 had reported to him that the deceased was smoking and he (the Appellant) tried to stop the deceased from doing so, but the deceased would not listen. Witness advised the Appellant not to fight with the deceased and thereafter he went out. On coming back, witness heard people shouting and asking the Appellant why he killed a person. Witness further testified that one Ibrahim Danmani was present when the Appellant stabbed the deceased and indeed collected the knife that was employed by the Appellant to stab the deceased. Witness ended his evidence by saying that he stopped the mob from killing the Appellant. He took the Appellant to the police station and handed him over to the Police.
Under cross-examination witness admitted that he did not know what the deceased smoked, as he was not there when the incidence happened.
PW2 is the Police Officer who received the complaint of murder from PW1. He recorded the statement of the Appellant through an interpreter whose name he gave as Corporal Tanko Lawal, and also took the photograph of the corpse at the hospital mortuary.

PW3, is a Police Officer who was attached to the State Criminal Investigation Department, Ado-Ekiti. This case was transferred from Aramoko Police Division to the State Criminal Investigation Department and was assigned to this witness for investigation. He recorded the statement of the Appellant through an interpreter by name Henry Ohio, a Corporal in the Police Force and collected a blood stained stainless knife which was allegedly used in the commission of the offence which he registered with the Exhibit keeper.

During the hearing of this case, the stainless knife was not tendered in evidence as it was misplaced and its whereabouts was not known.

The Appellant’s statements that were recorded at Aramoko police station and the state Criminal Investigation Department were both admitted in evidence as Exhibits ‘B’, and ‘D’ respectively. The interpreters of these statements, Corporal Tanko Lawal and Henry Ohio were not called as witnesses. At Page 67 Paragraph 4 of the record of appeal, the learned trial Judge in his judgment said:-

“The accused himself admitted his statements were recorded through interpreters. These interpreters were not called as witnesses by the prosecution. PW2 and PW3 confirmed that the statements of the accused person, that is, Exhibits ‘B’, and ‘D’ were recorded through interpreters. None of the two interpreters were called as a witness in the case, what is the effect of the failure of the prosecution to call the interpreters as witnesses in the case? The law is settled that failure by the prosecution to call as a witness the interpreter of an accused person’s statement so that the interpreter could be cross examined renders the statement inadmissible.”

Learned trial Judge cited QUEEN V. YORRO (1960) 5 FSC 12; OLALEKAN V. THE STATE (2001) 18 NWLR (PT.746) 793 AT 818 – 819 in support and went on to expunge Exhibit ‘B’ and ‘D’. I entirely agree with the trial Judge that Exhibits ‘B’ and ‘D’ are inadmissible as the interpreters of the Exhibits were not called as witnesses.
Having therefore excluded Exhibits ‘B’ and ‘D’ from the evidence that is available for assessment in this case, is there any evidence left upon which the Appellant could have been held liable for the offence of murder. There is abundant evidence that Mohammed Sheu is dead. All the prosecution witnesses and the Appellant who testified in his defence all agree that Mohammed Sheu is dead. The question now is who killed him. There is no eye witness that saw the Appellant kill the deceased. PW1 said Ibrahim Danmani was present and witnessed the killing. The prosecution did not call Ibrahim Danmani as a witness. From the testimony of PW1, it will appear as if there were many people at the scene of the crime. This is what he said: –
By the time I was coming back I saw people shouting and I saw the accused with a knife, I heard people shouting asking the accused person when he killed another person. It was Ibrahim Danmani who collected the knife from the accused person. I stopped people in mob from killing the accused person.”

The question is, why did the prosecution fail to call those people that were present as witnesses? As a general rule, the prosecution is not bound to call a multitude of witnesses or even all or any of the witnesses listed on the information or any particular number of witnesses. What is required of the prosecution is to call only the number of witnesses that may be sufficient to establish its case. In doing so, the prosecution is required to call any witness whose evidence will resolve any vital issue in the case against the accused person one way or the other. Failure to do this may result to the failure in proving the case against the accused person beyond reasonable doubt.
See: R V. HABRIS (1927) 2 KB 587; OKONKWO V. POLICE (1953) 20 NLR 165; THE STATE V. AZEEZ (2008) 4 SC 188.

In the instant case, those people that were present and witnessed the killing of the deceased are vital witnesses whose evidence would have resolved the question of who killed the deceased. Failure to call these witnesses is fatal to the prosecution’s case and I so hold. With the shortfall in the prosecution’s case in that regard, the prosecution was required to have the blood found on the stainless knife undergo scientific test so as to find out whether the blood had any connection with the deceased, since the knife was said to have been found with the Appellant. This was not done and the knife was also not tendered in evidence. Clearly, there was no effort on the part of the prosecution to connect the Appellant with the death of the deceased. In his judgment, the learned trial Judge at Page 69 Paragraph 1, lines 7 – 11 states thus:-

“The story of the accused person up to the point that he reported the deceased to PW1 married with the evidence of PW1 and PW2 brings to focus that the accused stabbed the deceased to death as a result of the quarrel which arose between them over the advice of the accused to the deceased not to smoke Indian hemp.”

At Paragraph 2 of the same page of the record of appeal, the learned trial Judge admitted that there was no direct evidence linking the Appellant with the death of the deceased in the following words: –
“Although the evidence of PW1 may not be regarded as a direct evidence in that he did not watch the act of killing, but his evidence unequivocally leads to the commission of the offence by the accused person.”

From the passage of the judgment I have reproduced hereinabove, it is very clear that the decision of the lower court is based on circumstantial evidence. For circumstantial evidence to ground a conviction it must be cogent, unequivocal, direct, overwhelming and point to only one conclusion that the crime was committed by no other than the accused person. See: SHEHU V. STATE (2010) 2-3 SC (PT.1) 158 at 189.

In the instant case, the primary facts which support the inference of guilt have not been proved. The knife that was retrieved from the Appellant was not proved to be covered with human blood and indeed the blood of the deceased. Since it has not been sufficiently proved that the death of the deceased was caused by the Appellant, proof that the Appellant had an intention to kill the deceased is unnecessary.
For the reasons I have stated here and the fuller reasons in the lead judgment of my learned brother, Akinbami, JCA, I too allow this appeal. The judgment of the lower court is hereby set aside and quashed. In its place, the Appellant is discharged and acquitted.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of having read while in draft, the lead judgment just delivered by my learned brother, Hon. Justice Fatima Omoro Akinbami, JCA. I adopt his reasoning and conclusion reached inter alia therein, that having regard to the peculiar facts and given circumstances of the instant case, Ibrahim Danmani was a crucial and essential witness for the prosecution. His evidence for or against the prosecution would have unraveled some unresolved riddles in the case. Thus, the failure of prosecution to call him was fatal to its case.
For this reason and for the more detailed reasons ably stated in the lead judgment of my learned brother, Akinbami, JCA referred to earlier, I also allow the appeal, set aside the judgment of the lower court. Both the conviction and sentence are hereby quashed by me.
In this vein, a verdict of discharge and acquittal should be entered.

Appearances

M. O. Folorunsho Esq. Holding the brief of Musibau Adetunbi Esq.For Appellant

AND

O. P. Alabi Esq. Deputy Director Public Prosecution, Ministry of Justice Ekiti State.For Respondent