WASIU BABATUNDE MUDASIRU V. THE STATE
(2011)LCN/4537(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of May, 2011
CA/I/85/ 2008
RATIO
CIRCUMSTANTIAL EVIDENCE: WHETHER THE COURT CAN DRAW INFERENCE OF THE ACCUSED PERSON’S GUILT FROM CIRCUMSTANTIAL EVIDENCE
A court is, permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence. Such evidence, must however be closely examined. It is also necessary that before drawing inference of the accused persons guilt from circumstantial evidence, the Judge has to be certain that there are no other co-existing circumstances, which may weaken or destroy the said inference. See the cases of ANEKWE V. THE STATE (1976) 9-10 SC Page 255 at 264, NASIRU V. THE STATE (1999) 2 N.W.L.R. Part 589 at 87, IJIOFOR V. THE STATE (2001) 9 N.W.L.R Part 718 Page 371 at 384 and 390-391 and EBENECHI V. STATE (2009) 6 N.W.L.R Part 1138 page 431 at 447 paras C-E. PER MODUPE FASANMI, J.C.A.
OFFENCE OF MURDER: CIRCUMSTANCES WHERE A COURT CAN CONVICT AN ACCUSED FOR THE OFFENCE OF MURDER UPON A CIRCUMSTANTIAL EVIDENCE
…the prosecution does not always need an eye witness account to convict a person accused of murder. See the cases of ADIO V. THE STATE (1986) 2 N.W.L.R Part 24 page 581 at 584 particularly at page 593 para H, EMEKA V. STATE (2001) 14 N.W.L.R Part 734 page 666 and IGABELE V. THE STATE (2006) 6 N.W.L.R Part 075 page 100. Where circumstantial evidence is cogent, strong, compelling and leading only to one conclusion that the murder was committed by the accused person, a court can convict upon it. See the case of GABRIEL V. (1989) 5 N.W.L.R Part 122 at 557, IKOMI V. STATE (1986) 3 N.W.L.R Part 28 at 340 and AKPA V. STATE (2007) 2 N.W.L.R Part 1019 page 500. PER MODUPE FASANMI, J.C.A.
OFFENCE OF MURDER: ESSENTIAL INGREDIENTS THAT THE PROSECUTION MUST ESTABLISH TO SECURE A CONVICTION AGAINST AN ACCUSED PERSON CHARGED WITH MURDER
It is trite that for prosecution to secure a conviction against an accused person charged with murder the following must be established; viz: (a) ‘ The death of the deceased, (b) That the death was caused by the act of the accused, (c ) That the act was done with the intention of causing death, (d) That the accused knew or had reason to know that his act will result in death or did not care whether the death of the deceased resulted from his act. For the above stated requisite ingredients, see in particular the cases of OMINI V. THE STATE (1999) 9 S.C. page 1 at 11; ONAH V. THE STATE (1995) 3 N.W.L.R. part 12 at 235; GEORGE V. THE STATE (1993) 6 N.W.L.R. part 297 at 41; USMAN KAZA V. THE STATE (2008) 7 N.W.L.R. part 1085 page 125 at 163 AND MUSA V. THE STATE (2009) 15 N.W.L.R. part 1165 page 467 at 486 paras C-F. PER MODUPE FASANMI, J.C.A.
MATERIAL INCONSISTENCY IN THE EVIDENCE OF A WITNESS: POSITION OF THE LAW WHERE THERE IS AN OBVIOUS MATERIAL INCONSISTENCY BETWEEN THE EVIDENCE OF A WITNESS BEFORE THE POLICE AND THE EVIDENCE HE GAVE ON OATH BEFORE THE COURT
Where there is an obvious material inconsistency between the evidence of a witness before the police and the evidence he gave on oath before the court, the trial Judge would be right to apply the inconsistency rule and to reject the evidence of the said witness as worthless for consideration. – see the cases of NWOKEARU V. THE STATE (2010) 15 N.W.L.R. Part 1251 page 1 at 27 paras A-B, OKONDU UBANI & ORS V. THE STATE (2003) 18 N.W.L.R Part 851 page 224 at 246-247. PER MODUPE FASANMI, J.C.A.
DOCTRINE OF LAST SEEN: IMPLICATION OF THE DOCTRINE OF “LAST SEEN”
The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with has turned up dead. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the accused person in such damnifying circumstances to give an explanation relating to how the deceased met his or her death. In the absence of such an explanation as in the instant case, surety and certainly, a trial court and even an appellate court will be perfectly justified in drawing the necessary inference that the Appellant must have killed the deceased as rightly found by the learned trial Judge in the instant case.
See the cases of EMEKA VS. THE STATE C2001) 14 N.W.L.R Part 734 at 666, NWAEZE VS. THE STATE (1996) 2 N.W.L.R Part 428 at 1, GABRIEL V. THE STATE (1989) 5 N.W.L.R Part 122 at 457, ADEPETU V. THE STATE (1998) 9 N.W.L.R Part 565 at 185, UGURU V. THE STATE (2002) 9 N.W.L.R Part 771 at 90, IGABELE H and OSUOHA V. STATE (2010 16 N.W.L.R Part 1219 page 364 at 417-418 paras E-B. PER MODUPE FASANMI, J.C.A.
CIRCUMSTANTIAL EVIDENCE: DUTY OF THE COURT WHERE DIRECT TESTIMONY OF EYE WITNESSES IS NOT AVAILABLE
Where direct testimony of eye witnesses is not available, the court is permitted to infer from the facts proved, the evidence of others that may be logically inferred. See the cases of AKPA V. STATE (2008) 14 N.W.L.R Part 1106 at 72, AHMED V. STATE (2001) 18 N.W.L.R Part 746 at 622 and OMONGA V. STATE (2006) 14 N.W.L.R Part 1000 at 532. PER MODUPE FASANMI, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
WASIU BABATUNDE MUDASIRU Appellant(s)
AND
THE STATE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of an Oyo State High Court of Justice sitting in Ibadan in charge No. 1/18C/2004 delivered on the 29th of November 2006. The Appellant was charged with the offence of murder contrary to and punishable under section 319 subsection 1 of the Criminal Code Cap 30 Volume II Laws of Oyo State of Nigeria 1978.
The facts of the case are that the Appellant was the driver of the deceased and P.W3 was the gateman. On the morning of 17/6/2002, the Appellant took the deceased out in his car and they returned home in the afternoon. When the gateman (P.W3) was permitted by the deceased to go on break, the Appellant was asked to man the house-gate. On return of P.W3, he did not meet the Appellant at the gate. P.W3 then helped himself to the opening of the gate by putting his finger through the latch.
On entering, he saw the appellant emerging from the back of the house and the Appellant informed P.W3 that he failed to be at the gate because the deceased asked him to wash plates inside the house. He also told P.W3 that the deceased had asked him to carry the mattress already put inside a car to a lady at Mokola. Appellant further informed P.W3 that the deceased was sleeping inside and did not want to be disturbed. Appellant later drove out with the mattress inside the car.
About (1st) one and half hours later, the Appellant returned with the car and parked it. He asked P.W3 to collect the car keys and return same to the deceased. P.W3 refused on the ground that it was not the practice for him to return car keys. Appellant then went inside the house to return the keys. He came out sharply afterwards to call P.W3 and both entered the house where P.W3 found the deceased lying on the floor of one of the rooms in the house dead. P.W2, P.W4 and P.W5 noticed that the deceased had some injuries on his body. The eye glasses of the deceased were broken. There were fresh scratch marks and bruises on the neck, body and hands of the Appellant. When asked how he sustained the bruises, Appellant said he got the injuries as a result of a fight he had with his wife shortly before the incident. The medical report exhibit B issued was to the effect that the’ deceased died as a result of multiple injuries with strangulation/asphyxiation.
The prosecution closed its case having called 9 witnesses while the Appellant testified on oath as a witness in his defence. The learned trial Judge having appraised the case for both parties, convicted the Appellant and sentenced him to death by hanging.
Dissatisfied with the judgment, Appellant appealed to this court on three grounds of appeal. The notice of appeal was filed on the 12th of Dec. 2006. By a motion dated 30th Dec. 2008 but filed on 2/1/09, Appellant obtained the leave of this court on the 7th of April, 2009 to file and argue two additional grounds of appeal.
Pursuant to the rules of this court, parties filed and exchanged briefs.
Appellant’s brief of argument is dated and filed on the 15th of April, 2009. Appellant’s brief of argument was settled by Oluwole Aina Esq. At the hearing of the appeal, Learned Counsel adopted and relied on the brief of argument. Learned Counsel for the Appellant distilled three issues for determination as follows
(1) Whether the learned trial Judge was right in sentencing the accused person to death when the ingredients of the offence of murder were not established by the circumstantial evidence that did not point directly and exclusively to the accused person but rather indicated the possibility of some other person(s) having opportunity to and might have killed the deceased.
(2) Whether the learned trial Judge was right to convict the accused without the prosecution proving its case beyond reasonable doubt as required in criminal trials.
(3) Whether the whole trial is not vitiated by a gross violation of the Appellant’s constitutional right to fair hearing and a real likelihood of bias on the part of the learned trial Judge.
The Respondent’s brief of argument settled by N. A. Abiola is dated and filed on the 29th of April, 2010. It was deemed filed on the 15th of June, 2010 He adopted and relied on the arguments in the aid brief.
Respondent distilled two issues for determination thus:
(1) Whether the prosecution proved its case beyond reasonable doubt.
(2) Whether it offends the principle of fair hearing or fair trial for the trial Judge to be the same Judge that gave consent to try the accused person charged with murder.
Having considered the issues formulated by the parties, I am of the view that the issues formulated by the Respondent are adequate to dispose of the appeal.
Issue One
Whether the prosecution proved its case beyond reasonable doubt.
Learned Counsel for the Appellant submitted that to secure a conviction on a charge of murder, the prosecution must prove:
(a) that the deceased had died
(b) that the death of the deceased was caused by the accused and
(c) 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.
Learned Appellant’s Counsel referred to the cases of OGBA V. THE STATE (1992) 2 N.W.L.R. Part 222 at 164 and FRED DAPERE GIRA THE V. (1996) 37 LRCN at 688.
Learned Counsel for the Appellant contended that the identity of the deceased has not even been proved properly by the prosecution.
Appellant is standing trial for the murder of one Chief John Oladipo Oladiran. The prosecution tendered a post-mortem report on one Chief John Oladipo Oladiran. The Appellant said he was a driver to one Oladiti.
He argued that since the medical report was in respect of one Oladiran, the accused had no business with that Oladiran. The doctor who was said to have performed the post mortem did not attend the court to give evidence.
The law requires that the doctor appears in court, gives evidence that he performed the post mortem and then informs the court of the cause of death which he found out from his examination of the deceased. Learned Appellant’s Counsel referred to the case of UBANI V. STATE (2004) 115 LRCN 3143 at 3160 where the court expressed the view that:
“In cases where a man was attacked with a lethal weapon and he died on the spot, it is not necessary to prove cause of death by medical evidence since it can properly be inferred that the wound inflicted thereby caused the death.”
Learned Counsel for the Appellant argued further that the learned trial Judge misdirected himself when he convicted the Appellant without proof of the three ingredients which must co-exist to ground conviction for the offence of murder. The Respondent failed to prove what act of the accused/appellant caused the death of the deceased. P.W1 a retired Judge of the High Court of Justice under cross-examination stated that the impression he gathered was that the deceased died of exhaustion. P.W2 in her evidence suggested that burglars or thieves must have caused the death. Submitted further that the prosecution did not give evidence in respect of any act or omission of the Appellant or nexus between any such acts or omission Pf the Appellant that could have caused the death of the deceased. No one is certain as to the exact period the deceased was attacked and as to who attacked him. The learned trial Judge refused to direct his mind to the different circumstances surrounding the death of the deceased that is the possibility of the accused person, the gateman or some other intruder being responsible for this act, or even dying of exhaustion as suggested by P.W1. For circumstantial evidence to ground conviction, it must point irresistibly to the guilt of the Appellant. He placed reliance on the cases of ADE V. STATE (2006) Vol. 140 LRCN at 1977, IDOWU V. STATE (1998) 11 N.W.L.R Part 574 at 354.
Criminal cases must be proved beyond reasonable doubt to ground conviction. Such evidence which merely suggests but not proof beyond reasonable doubt is insufficient. He cited the Supreme Court case in AHMED V. STATE (2001) 92 LRCN 3467 that states:
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be notwithstanding the inadequacy of evidence.
Whatever the reason for the inadequacy of evidence or absence of evidence may be, is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence,”
Learned Counsel for the Appellant submitted that the case has not been proved beyond reasonable doubt by evidence and urged the court to discharge and acquit the Appellant.
Learned Counsel for the Respondent in reply submitted that the trial court was justified in coming to the conclusion that the Appellant was the only person on the face of the evidence before the trial court that committed the heinous offence to the exclusion of any other person or persons. The Respondent in proving the ingredient of the offence of murder called nine prosecution witnesses and relied on circumstantial evidence being evidence of surrounding circumstances. Contrary to the contention of the Appellant in his brief of argument, he did not complain about the identity of John Oladipo Oladiran as the victim of the murder throughout the trial at the lower court. Appellant in his evidence in chief stated as follows:
“I am a driver. I know Oladipo Oladitan. He employed me as a driver. He is now dead. I was his driver when he died.”
In proving the offence of murder against the Appellant, the prosecution adopted circumstantial evidence. Learned Counsel for the Respondent relied on the case of ADIO V. THE STATE (1986) 2 N.W.L.R Part 24 page 581 at 584 particularly at page 593 para H where the Supreme Court had this to say:
“It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence afford better proof beyond reasonable doubt.”
Appellant was the only person with the deceased when P.W3 went on break. After P.W3 returned from break, there was no visitor into the house. Appellant’s explanation as to what happened at the period when P.W3 was not around was contradictory. Appellant in his exhibits “C-C1” gave a story which is inconsistent with his evidence on oath.
The summation and the reasonable inference from the Respondent’s evidence on the record points to no other person other than the Appellant as the one that had the opportunity to kill the deceased and indeed killed the deceased. Appellant failed to supply credible explanations to disprove the prosecutions evidence. Where apparent damning facts are established against the accused and he fails to give any explanation, an inference will be made against him as done in this case by the trial court. Learned counsel relied oh the case of ADEPETU v. STATE (1999) 9 N.W.L.R Part 565 page 185 at 207.
Learned Counsel for the Respondent further submitted that failure to call the medical doctor who performed the post mortem examination on the deceased and issued exhibit B is not fatal to the prosecution’s case as the death of the deceased 6ad been proved beyond reasonable doubt. The prosecution through P.W5 laid foundation for the absence of the medical doctor.
On the contention of the Appellant in respect of the evidence given by P.W5, i.e. the I.P.O., Learned counsel for the Respondent submitted that Appellant’s contention is misconceived as the evidence of P.W5 referred to by the Appellant was the product of what he saw or discovered in the course of his investigation and therefore not a product of “pure guesswork” contrary to the Appellant’s submission. The learned trial Judge did not misdirect himself when he convicted the Appellant based on the inference from the totality, of the evidence of the prosecution before the court.
The findings of the trial court flow from facts circumstantially proved before the court. The conclusion of the trial Judge was based on legal and reasonable inference from facts proved beyond reasonable doubt.
Learned Counsel for the Respondent urged the court to hold that the prosecution has proved its case beyond reasonable doubt and that the learned trial Judge was right when he convicted the Appellant based on the circumstantial evidence which points irresistibly to the Appellant as the only assailant of the deceased to the exclusion of any other person or persons.
He urged the court to resolve issue one against the Appellant.
A court is, permitted to infer from the facts proved and other facts necessary to complete the element of guilt or establish innocence. Such evidence, must however be closely examined. It is also necessary that before drawing inference of the accused persons guilt from circumstantial evidence, the Judge has to be certain that there are no other co-existing circumstances, which may weaken or destroy the said inference. See the cases of ANEKWE V. THE STATE (1976) 9-10 SC Page 255 at 264, NASIRU V. THE STATE (1999) 2 N.W.L.R. Part 589 at 87, IJIOFOR V. THE STATE (2001) 9 N.W.L.R Part 718 Page 371 at 384 and 390-391 and EBENECHI V. STATE (2009) 6 N.W.L.R Part 1138 page 431 at 447 paras C-E.
From the above, the prosecution does not always need an eye witness account to convict a person accused of murder. See the cases of ADIO V. THE STATE (1986) 2 N.W.L.R Part 24 page 581 at 584 particularly at page 593 para H, EMEKA V. STATE (2001) 14 N.W.L.R Part 734 page 666 and IGABELE V. THE STATE (2006) 6 N.W.L.R Part 075 page 100. Where circumstantial evidence is cogent, strong, compelling and leading only to one conclusion that the murder was committed by the accused person, a court can convict upon it. See the case of GABRIEL V. (1989) 5 N.W.L.R Part 122 at 557, IKOMI V. STATE (1986) 3 N.W.L.R Part 28 at 340 and AKPA V. STATE (2007) 2 N.W.L.R Part 1019 page 500.
It is trite that for prosecution to secure a conviction against an accused person charged with murder the following must be established; viz:
(a) ‘ The death of the deceased,
(b) That the death was caused by the act of the accused,
(c ) That the act was done with the intention of causing death,
(d) That the accused knew or had reason to know that his act will result in death or did not care whether the death of the deceased resulted from his act.
For the above stated requisite ingredients, see in particular the cases of OMINI V. THE STATE (1999) 9 S.C. page 1 at 11; ONAH V. THE STATE (1995) 3 N.W.L.R. part 12 at 235; GEORGE V. THE STATE (1993) 6 N.W.L.R. part 297 at 41; USMAN KAZA V. THE STATE (2008) 7 N.W.L.R. part 1085 page 125 at 163 AND MUSA V. THE STATE (2009) 15 N.W.L.R. part 1165 page 467 at 486 paras C-F.
The bottom line is that if it is found that the man died, the death of the deceased must be directly traceable to the act of the accused person.
In the instant case, it was the evidence of PW1 at page 48 of the record that he knew one Chief Oladipo Oladitan who happened to be his friend and who is now dead. Also at page 520 of the record, PW2 also confirmed and gave evidence that Oladipo Oladitan is deceased and was her father. PW4 gave evidence and confirmed the identity and death of the deceased at page 61 of the record as that of John Oladitan, while PW5 did the same at page 64 of the record. Appellant in his evidence in chief stated as follows:
“I am a driver. I knew Oladipo Oladitan. He employed mg as a driver. He is now dead. I was his driver when he died”.
It is therefore common ground between the Respondent and the Appellant that the death of the deceased occurred. It is the law that what is admitted needs no further proof. The first ingredient of the offence is therefore proved.
The evidence of the prosecution on the 2nd ingredient is circumstantial. On circumstantial evidence; See OKA V. THE STATE (1875) 9-11 SC P.88. See also HEWANT, LORD CHIEF JUSTICE OF ENGLAND, IN R V. TAYLOR AND ORS (1928) 21 CAR p 20 at 21 where His Lordship defined circumstantial evidence thus:-
“It has been said that the evidence against the applicant is circumstantial, so it is, but circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
In the case at hand on the second ingredient, the following facts emerged from the evidence accepted and founded upon by the learned trial judge:
(a) , The Appellant was the driver of the deceased while PW3 was the gate man.
(b) The deceased lived alone.
(c) On the morning of 17/6/2002 the Appellant took the deceased out and returned at about 2.pm.
(d) At around 2.pm or thereabout on the same 17/6/2002 the deceased permitted PW3 to proceed on break while the Appellant replaced PW3 to man the gate.
(e) PW3 returned from his break and did not meet the Appellant who was supposed to be manning the gate by staying at the gate.
(f) PW3 called on the Appellant several times to open the gate but the Appellant was not available and PW3 had to open the gate all by himself.
(g) On entering the premises PW3 saw the appellant emerging from the back of the house and also a mattress inside one of the cars of the deceased.
(h) The Appellant explained to PW3 that he was not at the gate to open it because the deceased instructed him to wash plates inside the house.
(i) The Appellant further informed PW3 that the deceased had instructed him to carry the mattress in the car to a lady at Mokola.
(j) The Appellant further informed PW3 that the deceased was sleeping and did not want to be disturbed. ,
(k) Appellant drove out while PW3 remained at the gate.
(l) According to PW3 no one visited the premises.
(m) At about one and half hours later, the Appellant returned into the house with the car, parked the car and asked PW3 to collect the keys and return same to the deceased.
(n) PW3 refused to collect the car keys from the Appellant as it was never the practice for him to return car keys to the deceased.
(o) The Appellant then entered the house and came out shortly afterwards to call PW3.
(p) PW3 entered the house and found the deceased lying motionless on the floor of one of the rooms.
(q) PW1, a long time friend of the deceased was invited to the scene who sent for the family of the deceased and reported the matter to the police.
(r) PW2, PW4 and PW5 noticed that the deceased had some massive injuries on his body.
(s) Stains or splatter of egusi soup were noticed on the white walls of the dining room while broken pieces of glass were noticed on the floor.
(t) There were also signs that someone had tried to clean up the place, while there were washed plates and cutlery beside the kitchen sink and a big metal object underneath the kitchen sink. There was also a clean knife on top of the refrigerator.
(u) The eye glasses of the deceased were broken and the mattress on the bed inside the room, which floor the deceased was lying was missing.
(v) PWZ, PW4 and PW5 noticed fresh scratch marks and bruises on the neck, body and hands of the Appellant.
(w) The appellant claimed that he sustained the scratch marks and bruises as a result of physical fight he had with his wife shortly before the incident.
(x) The wife of the Appellant in her testimony in court denied having had any physical fight with the Appellant.
(V) The appellant could not lead the police to where he dropped the mattress or whom he lave the mattress.
From the facts stated above as contained on the record, there is a complete and unbroken chain of evidence disclosing circumstances which clearly and forcibly suggest that it was the Appellant that killed the deceased. Appellant was the only person with the deceased when P.W3 went on break. After P.W3 returned from break, there was no visitor into the house. Appellant’s explanation as to what happened at the period when P.W3 was not around was contradictory. Appellant completely changed story in his evidence on oath from what he had down in his extra judicial statement exhibits C-C1. All the inconsistencies were identified by the learned trial fudge during his evaluation of evidence at pages 115-116 of the record. The learned trial Judge at page 116 of the record stated thus:
“One other point which is worthy of note is that in the statement of the accused, he stated that the deceased asked him to wash plates after the deceased and the lady visitor had eaten a meal, whereas in his evidence on oath, he abandoned the story of washing plates to (sic) that of boiling corn for the deceased. Another fact that should be referred to is that on normal days, the accused used to return the car keys himself but on this particular day, the accused attempted to hand over the car keys to P.W3 who refused to take it on the ground that it was not the usual practice. Also as I have already stated, the accused could not take the police to the storey building beside A.P. in Mokola where he allegedly dropped the mattress from the house of the ‘ deceased.”
Where there is an obvious material inconsistency between the evidence of a witness before the police and the evidence he gave on oath before the court, the trial Judge would be right to apply the inconsistency rule and to reject the evidence of the said witness as worthless for consideration. – see the cases of NWOKEARU V. THE STATE (2010) 15 N.W.L.R. Part 1251 page 1 at 27 paras A-B, OKONDU UBANI & ORS V. THE STATE (2003) 18 N.W.L.R Part 851 page 224 at 246-247. The inconsistency rule was extended to the statement and evidence of an accused person. See the cases of EGBOGHONOME V. STATE (1993) 7 N.W.L.R Part 306 at OWIE V. STATE (1985) 1 N.W.L.R. Part 3 at 470, OLADEJO V. STATE (1987) 3 N.W.L.R Part 61 at 419, UMANI V. STATE (1988) 1 N.W.W.L.R Part 70 at 274 MBANI V. STATE (1988) 3 N.W.L.R Part 84 and ASANYA V. STATE (1991) 3 N.W.L.R Part 180 at 422. The effect of the rejection of the evidence of the witness would be that both his extra judicial statement to the police and his evidence on oath would be discarded as worthless since the court cannot pick and choose between the two inconsistent statements.
The learned trial Judge at page 116 of the record after reviewing the testimony and the demeanor of the Appellant on oath found as follows:
“The only irresistible inference I can make from the circumstances presented by the evidence is that the accused person killed the deceased. I can find no other reasonable inference. It is my view that the accused person while inside the house of the deceased, attacked the deceased while the deceased was having his meal. I am also of the view that the scratches found on the body of the accused were sustained when the deceased struggled with him.
Thereafter, the accused washed the plates used by the deceased and tried to clean up, in order to cover his tracks……… Furthermore, he carried away the mattress so as to leave P.W3 alone in the premises and attempted to return the car keys through P.W3 so that he would have left the premises before P.W3 discovered the crime.”
Ordinarily, the court ought to have disregarded the extra judicial statement and his testimony in the lower court because of the inconsistency. See the cases of AMUSA V. STATE (2002) 2 N.W.L.R Part 750 at 73, OKAFOR V. STATE (20060 4 N.W.L.R Part 969 at 1 and MAIGARI V. STATE (2010) 16 N.W.L.R Part 1220 page 439 at 479-480 paras H-A. and MAIGARI VS. STATE (2010) 16 N.W.L.R Part 1220 page 439 at 479-480 paras H-A.
The alleged inconsistency in my view could not be said to have raised any doubt in the mind of the learned trial Judge as would have called for the decision of the court being made in favour of the Appellant. The question is whether the doctrine of “last seen” is invocable in this case and what does it connote? The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with has turned up dead. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal.
It is the duty of the accused person in such damnifying circumstances to give an explanation relating to how the deceased met his or her death. In the absence of such an explanation as in the instant case, surety and certainly, a trial court and even an appellate court will be perfectly justified in drawing the necessary inference that the Appellant must have killed the deceased as rightly found by the learned trial Judge in the instant case.
See the cases of EMEKA VS. THE STATE C2001) 14 N.W.L.R Part 734 at 666, NWAEZE VS. THE STATE (1996) 2 N.W.L.R Part 428 at 1, GABRIEL V. THE STATE (1989) 5 N.W.L.R Part 122 at 457, ADEPETU V. THE STATE (1998) 9 N.W.L.R Part 565 at 185, UGURU V. THE STATE (2002) 9 N.W.L.R Part 771 at 90, IGABELE H and OSUOHA V. STATE (2010 16 N.W.L.R Part 1219 page 364 at 417-418 paras E-B.
In the instant case, the circumstantial evidence relied upon by the learned trial Judge has not occasioned miscarriage of justice. The important question is whether taken as a whole, those snippets of circumstantial evidence point unequivocally to the direction of the guilt of the Appellant for the crime charged. My answer to this is in the positive.
Where direct testimony of eye witnesses is not available, the court is permitted to infer from the facts proved, the evidence of others that may be logically inferred. See the cases of AKPA V. STATE (2008) 14 N.W.L.R Part 1106 at 72, AHMED V. STATE (2001) 18 N.W.L.R Part 746 at 622 and OMONGA V. STATE (2006) 14 N.W.L.R Part 1000 at 532.
Appellant was the only person with the deceased when P.W3 the security man went on break and after P.W3 returned from break. There was no visitor into the house. On normal days, Appellant used to return the car keys himself but on this particular day, Appellant attempted to hand over the car keys \to P.W3 who refused to take it on the ground that it was not the usual practice. Appellant could not take the Police to the storey building beside A.P. in Mokola where he allegedly dropped the mattress from the house of the deceased. Appellant failed to give explanations to the apparent deeming facts established against him. i am therefore of the view and also hold that an inference was properly and reasonably made against the Appellant in the circumstance. The circumstantial evidence is cogent, complete, unequivocal, compelling and lead to the irresistible conclusion that the Appellant and no one else was the murderer. I am on one with the findings of the learned trial Judge that the Respondent has proved the second ingredient of the offence, i.e. the act of the Appellant caused the death of the deceased beyond reasonable doubt.
On the third ingredient of the offence that the act of the Appellant was intentional with knowledge that death or grievous badly harm was it probable consequence, intent to kill might be inferred from the injuries.
The lower court noted the multiple injuries and the severity of the injuries inflicted on the deceased by the Appellant. The medical report stated the cause of death to be severe multiple injuries with strangulation/asphyxiation. This indicates that Appellant had knowledge that death would result. The law presumes that a person intends the natural and probable consequences of his act. See the case of ANOJI IREK V. THE STATE (1976) 4 S.C page 65 at 67.
Failure to call the pathologist has not in any way diminished the evidence of the prosecution or Respondent against the Appellant. The Respondent through P.W5 laid foundation for the absence of the pathologist hence, the tendering and admission in evidence of the medical report as exhibit in the ruling of the trial court at page 66 of the record sequel to the objection raised by the defence. In any event, section 42 of the Evidence Act is with a proviso to the effect that either the Appellant or the Respondent can apply to the court for the presence of the maker of the medical certificate for the purpose of cross examination or for any other purpose. It is settled law that an accused person or Appellant who has not or failed to apply for the presence of the maker of a certificate for the purpose of cross examination or any other purpose cannot turn round to complain. See the cases of EHAT V. STATE (1993) 3 N.W.L.R Part 290 page 644 at 558 and NWACHUKWU V. STATE (2002) 7 S.C.N.J page 230 at 245-247. The absence of the Medical Doctor, the author of exhibit B at the trial is an irregularity which has not in any way occasioned a miscarriage of justice. In UDEH V. STATE (1999) N.W.L.R Paft509 page 1 the Supreme Court stated:
“Where as in the instant case irregularity was being alleged in a trial, the burden is on the Appellant to establish that the alleged irregularity has led to a substantial miscarriage of justice. Where the Appellant does not show that the irregularity has led to a miscarriage of justice, it will be assumed that there was never.”
The court therefore holds that there is no miscarriage of justice. The lower court rightly held that the Respondent has proved the case against the Appellant beyond reasonable doubt. Issue one is hereby resolved against the Appellant.
Issue Two
Whether it offends the principle of fair hearing or fair trial for the trial Judge to be the same Judge that gave consent to the prosecution to try the accused person charged with murder.
The complaint of the Appellant is that the proceedings were conducted in violation of the principles of natural justice and the Appellant’s right to fair hearing guaranteed under section 36(1) of the 1999 Constitution. Appellant contends that page 1 of the record shows that the prosecutor on 1lth Feb.2004 wrote to the Chief Judge of Oyo Sate seeking “the consent of a judge” to charge the accused for murder based on the facts contained in the proof of evidence therein attached. The page also shows that the file wag assigned to “Esan J” on 19/2/04. The proof of evidence is contained at pages 2 to 19 of the record. Having thoroughly examined the facts contained in the proof of evidence and having satisfied himself that the facts were substantial enough to ground a conviction against the accused person Justice Esan then at page 20 of the record gave his “consent to the preferment of a Criminal Information against “Wasiu Babatunde Mudasiru”
Justice Esan however did not pass the case file back to the Chief Judge for assignment of the trial proper to another judge or to transfer the case to another judge for trial. Rather, the same judge who had earlier seen the facts and who had a fore-knowledge of the facts of the case, whose consent had been sought and obtained by the prosecution behind the back of the accused and who had developed a mindset of the guilt of the accused person, assumed jurisdiction to try the case and did try it. Appellant contends that there was bias or a real likelihood of bias on the part of the learned trial judge because of his previous fore-knowledge of the facts of the case and the prior impression he had formed as to the guilt of the accused person. Learned Counsel for the Appellant placed reliance on the case of Anosike v. Igbeke (1999) 8 N.W.L.R Part 616 page 686 at 695, Learned Counsel for the Appellant urged the court to resolve Issue two in favour of the Appellant and set aside the decision of the lower court.
Learned Counsel for the Respondent submitted that the contention and submissions of the Appellant is misconceived. He contended that there was no miscarriage of justice as the Appellant has not shown or demonstrated in his brief how the act of the trial Judge contravenes either section 340 (2) (b) of the Criminal Procedure Law and section 36(1) of 1999 Constitution as to infringe the fair hearing of the Appellant. The suspicion raised by the Appellant lacks objectivity of purpose and therefore should be discountenanced.
On the issue of fair hearing, learned Counsel for the Respondent contended that the act of Hon. Justice Eni Esan granting consent constitute a preliminary act to the case which is preparatory to the arraignment of the accused person and therefore forming part of the pretrial stage of the case and to that extent, time was not ripe for the Appellant to complain about fair hearing. Reliance was placed on ASAKITIPI V. STATE C1993) 5 N.W.L.R Part 296 page 641 at 652 paras E-G per Uwais J.S.C. He urged the court to resolve issue two against the Appellant.
With the greatest respect, Appellant position on the issue of the Judge considering an application for consent and thereafter trying the case is misconceived. A judge while considering an application for consent is only looking for a standard of prima facie evidence from prosecution which may require the accused person to offer some explanations and not such evidence of the’ nature to convict the accused person. See the case of IKOMI VS, STATE (1986) 3 N.W.L.R Part 28 page 340 at 362 where the Supreme Court had this to say:
“At the stage of considering an application for consent, does circumstantial evidence fit in to the prima facie case? Chief Williams in argument defined the circumstantial evidence sufficient at this stage as evidence which can lead to the inference that suspect and no other person, could have committed the offence.
I would say that, that is putting it at the stand required for conviction. In my view, once there are circumstances from which it can be justly inferred that the accused person could have committed the offence, he should be put on his trial. Whether there are other coexisting circumstances which would weaken that inference or whether the evidence leads irresistibly to accused person’s guilt can only be determined at the trial.”
The issue of bias being canvassed by the Appellant in his brief is therefore speculative, unreal and has no basis on the record. The allegation of bias as alleged by the Appellant in this case is subjective in form and not objective whereas the test should be objective. See IKOMI V. STATE supra at page 36g paras F-G per Nnamani J.S.C. quoting with approval Mellor J, in the case of Whitford Residents and Rate payers ASSOCTATTON VS. MANUKA CITY CORPORATTON “Whether there is reasonable suspicion of bias looked at from the objective stand point of a reasonable person and not from the subjective stand point of an aggrieved party.”
On the issue of fair hearing, the true test of it is the impression of a reasonable man who having been present throughout the trial is satisfied from his observation that justice has been done in the case. See EFFIOM V. STATE (1995) N.W.L.R part 373 page 507 at 582-583 paras H-A where the Supreme Court per Wali J.S.C. said thus:
“A trial of an accused person commences when his plea is taken so the right to fair hearing will commence from the time an accused person is brought before a court and his plea taken. The period does not include the pretrial stage to wit: the period covering the time he was arrested to the time he was arraigned in court and his plea taken.”
The order of consent by the Hon. Justice Esan has therefore not in any way affected the jurisdiction of the trial Judge to try the Appellant.
Issue two is of no moment and it is also resolved against the Appellant.
Finally, the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court in suit No. 1/18C/2004 delivered on the 29th of November, 2006 is hereby affirmed.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity to read in draft the lead judgment delivered by my learned brother, M. FASANMI, J.C.A. I agree with his reasoning and conclusions reached and I entirely agree that the appeal lacks merit and it ought to be dismissed. I also dismiss same and I abide by the consequential order contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH J.C.A: I agree with the well considered judgment of my learned brother, FASANMI, JCA. I adopt same as mine. The appeal is also dismissed by me for lacking merit.
Appearances
Oluwole Aina with E.A.IMOMOH; and E. Ettah and S. AkhetuamehFor Appellant
AND
N.A. Abiola Principal Legal Officer Oyo State Ministry of JusticeFor Respondent
