3PLR – GAFARI YISAU V. THE STATE

GAFARI YISAU

V.

THE STATE

 

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/43/91

WEDNESDAY 29 FEBRUARY 1994

3PLR/1994/45  (CA)

 

OTHER CITATIONS

2 NWLR PART 379 PG 636

 

BEFORE THEIR LORDSHIPS

GEORGE ADESOLA OGUNTADE;

ISA AYO SALAMI;

SYLVANUS ADIEWERE NSOFOR.

 

REPRESENTATION

Ademola Lajide (with him Kehinde Adekunle) – for Appellant

F. Oladehinde(Mrs) Ag. Asst. Director of public prosecution. Ministry of Justice, Oyo state – for respondent

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE – What prosecution must prove to sustain conviction of murder, Nature of circumstantial evidence required to ground conviction

PRACTICE AND PROCEDURE – EVIDENCE – Section 138 Evidence Act – on whom lies burden of proof in criminal cases

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE Delivering Leading Judgement

The appellant was one of two persons charged with the offence of murder before the Ibadan High Court. He was the 1st accused. The two were alleged to have murdered one Waidi Agunbiade on 29th January, 1988 at Oke-Offa Atipe contrary to Section 316 and punishable under section 319(1) of the Criminal Code, Cap.30 Vol. II, Laws of Oyo State, 1978.

The prosecution called 11 witnesses. The appellant testified in his own defence. The 2nd accused also testified in his own defence. Counsel addressed the court and the trial Judge M. O. Adio J on 30 July, 1990 delivered judgment. The appellant was convicted of the offence of murder and accordingly sentenced to death. The 2nd accused was discharged and acquitted. I shall in this judgment hereafter refer to the appellant as the accused.

The accused was dissatisfied with the judgement of the lower court. He has brought this appeal against it. He has further amended notice of appeal filed with leave which was granted on 17 June 1993, the accused raised six grounds of appeal. It is not necessary to set out the grounds of appeal in this judgement as the issues for determination framed amply reflect the grounds of appeal. The issues are;

“1      Whether the whole case ought to have raised any doubt in the mind of the court concerning the guilt of the 1st accused person.

2. Whether it can be said with some measure of certainty that the 1st accused person stabbed the deceased.
3. Whether the telling of lies by the 1st accused person amounts to his being guilty of the charge.

4a.     Whether it can be concluded without reasonable doubt that the 1st accused used exhibit P.4 on the deceased or killed the deceased in any other way and/or

4b      Whether the whole evidence pointed irresistibly to the guilt of the 1st accused person.

5. Whether the failure to call any of the people that shouted the name of the 1st accused as the culprit is fatal to the success of the prosecution’s case.

The respondent in its brief formulated the issues for determination differently thus:

“1.     Whether the appellant was rightly held to have inflicted the blow that killed the deceased.

2. Whether the circumstantial evidence before the trial court was strong enough to ground a conviction.
3. Whether the fact that the appellant lied should have amounted to his guilt.
4. Whether the facts of the case really proved the case of the prosecution against the appellant beyond reasonable doubt”.

I think that I should preface this judgment with a statement that throughout the case of the prosecution, there was no eyewitness account as to who dealt the deceased the injury of which he died. The lower court in its judgment relied on what it erroneously thought was a strong circumstantial evidence to convict the 1st accused. In the appeal before us the respondent in its brief has been unable to support the conviction and has canvassed a strong argument to show that the lower court was wrong. I equally think the same.

These are the facts. On 29/01/88, a musical group led by Wasiu Ayinla, the 1st respondent witness was entertaining at a party called by one Alhaji Ahmed Costly, the 4th prosecution witness at Oke-Offa, Atipe, Ibadan. Between 10 and 11 p.m. there were shouts that “Monotan”, the 1st accused had killed somebody. The powerful rays of light used by the musical group were directed to the area from which the shouts came. The 1st accused was seen holding a broken bottle. There was a person lying on the ground in a pool of blood. The matter was reported to the police. The person in the pool of blood was taken to the hospital. He died later. The above in a nutshell was the story as told by the 1st to the 7th prosecution witnesses.

The 8th prosecution witness was an uncle of the deceased who identified his body for the purpose of post mortem examination. The 9th prosecution witness was Dr. Michael Akinleye Aboderin who performed post mortem examination on the body of the deceased. The 10th Prosecution witness was the investigating police officer who obtained the statement of the 1st accused under caution. The 11th and last prosecution witness was the policeman who interpreted the statement of the 1st accused to the 10th prosecution witness.

The accused testified in his own defence before the lower court. He had made a statement exhibit p2, the accused said:

“On the 29th day of January, 1988 at about 9.30p.m I went to a party at Oke-Offa Atipe where Alhaji Wasiu Ayinla and his group were playing music. When I was in the party I saw Sunday Oloyede and one Kamoru father’s name unknown alias Olobo fighting. As they were fighting I went in and separated them and settle them after warning them not to fight again. After settling them Sunday Oloyede was not happy with the settlement. He put his right hand into the front of his trouser and removed a knife. He used the knife to stabbed me on my back and ran away. I started to pursue him and at the same time I was shouting thief, thief O. As I was pursuing him the deceased joined me in pursuing Sunday. When the deceased was about to hold Sunday, Sunday brought out the same knife he used in stabbing me and stabbed the deceased in the right hand side of his belly. When he stabbed the deceased, the deceased fell down on the ground and started to bleed from the wound. Then Sunday took to his heels. When Sunday ran away I did not follow him. I stood by the side of the deceased who was lying on the ground. It was there the musician and his boys met me. They got hold of me and took me to Agugu Police Station on the ground that I was the one who stabbed the deceased. When the musician met me, they did not see me with anything. The broken bottle shown to me was not recovered from me. I did not know the deceased before and I did not fight with him on that day. I know Sunday Oloyede before the day of the incident, he is a co-driver and I knew him at IwoRoa motor park. When Sunday stabbed the deceased other people saw him doing so but they will not like to confirm to testified because they are afraid of Sunday. I don’t know the names of those who were present at the time Sunday stabbed the deceased. Sunday ran away with the knife after stabbing the deceased”.

In his evidence before the lower court, the accused said substantially the same thing as he had stated in exhibit p2. The 2nd accused whom the 1st accused had accused in exhibit p2 and his evidence in court as the person who killed the deceased testified and he denied killing the deceased.

It is trite law that the prosecution has the onus of proving the guilt of an accused beyond reasonable doubt. See R. v. Basil Ranger Lawrence (1932) 11 NLR 6 at 7; Michael Okagbue v Commissioner of Police (1965) NMLR 232 and Section 138(1) of the Evidence Act, Cap 112. Laws of the Federation 1990. Implicit in that duty is the necessity to prove every ingredient of the offence: See R. v Sam Mofor (1981) 5 S.C. 5 at pages 26-27 the Supreme Court per Nnamani J.S.C said:

“In a murder case as the instant one, the prosecution cannot succeed in establishing the guilt of the accused unless it not only established the cause of death but established in addition that the act of the accused caused the death of the deceased. See Rex v Abengowe 3 WACA 85, Omonuju v The State (1976) 5 S.C. 1 (1976) 1 AII NLR (pt 1) 387; Raymond Ozo v The State (1971) 1 All N.L.R. 111 at 115.”

In the instant case, the evidence of the cause of death of the deceased was given by the 9th P.W. who stated thus:

“my findings were i found a stab wound on the right chest wall situated between the 4th and 5th ribs about 3 cm from the mid-line. The edges of the wound were straight and clean out. On internal examination, the wound i have just described penetrated the right chest wall, went through the right lung and went further to perforate the right ventricular chamber of the heart. There was a large collection of blood and blood clot in the convering membrane of the right lung and of the heart. I Certify the cause of death in my opinion to be due to injury to the right lung and to the heart caused by injury to the chest wall inflicted by a sharp-object. A Sharp knife or a broken bottle could have caused the injury.

Now there was evidence that the accused was seen holding a piece of broken bottle and standing near the deceased. Was that enough to conclude that the accused inflicted on the deceased the injuries of which the deceased died? No one testified that the accused had been seen fighting with the deceased or that he stabbed the deceased with the broken bottle found with him.

The piece of broken bottle seen with the accused was tendered in evidence as p.4 by 10th P.w. Under cross-examination, 10th p.w. said:

“We did not forward Exhibit p4 to the forensic Laboratory. There was no stains on it hence we did not send it for forensic test. There was no blood stains on exhibit p4 when Sgt, Omokan referred the matter to me. I will not know whether Exhibit p4 was used for committing any offence or not. We should have sent if for examination to the Forensic Science Laboratory, Oshodi if there was blood stains (sic) on the bottle.”

It was to be expected that if the accused had used the broken bottle to attack the deceased, there would have been blood stains on the bottle having regard to the fact that the right chest wall through the lung to the right ventricular chamber of the heart was pieced by the weapon used to stab the deceased. But the 10th p.w. stated quite clearly that there was no blood stain on the bottle.

The position before the lower court was that the only evidence available as to how the deceased was stabbed was given by the accused. He said both in his statement exhibit p2 and his evidence in court that it was the 2nd accused who stabbed the deceased with a knife.

In his judgment at page 43 of the record of proceedings, it would seem that the trial judge had at first appreciated that the broken bottle found with the accused could not have been the weapon used to stab the deceased. He said on the point:

“The deceased died as a result of injury sustained from a sharp instrument which could be a knife or a broken bottle. No knife was recovered at the scene of the incident but a broken bottle was recovered. The broken bottle contained no blood stain hence it was not sent to the Forensic Laboratory for examination. In the circumstances it is difficult to say positively that it was the broken bottle tendered as exhibit p4 that was used at the scene of the incident”.

However the lower court did a volte face when it said at pages 51-52 that:

“With respect to the 1st accused, the circumstantial evidence against him is strong as already set out. They pointed irresistibly to him leaving me in no doubt that he was the one who committed the offence. That apart, are there any corroborative elements? The accused person lied deliberately on material issues and I hold that these lies were told because of the realisation of guilt and fear of the truth. The Falsity of these evidence had been catalogued in this judgment. After a very careful consideration of the evidence of the accused and of his demeanour in the witness box, I am in no doubt that he struck the fatal blow”.

Before the learned trial Judge came to the above conclusion he had reasoned that the accused must be guilt of the offence because he had told some lies.

At page 49 the learned trial Judge said:

“The first accused lied on the fact that he did not know the deceased before the day of the incident, he lied on the fact that he was stabbed with a knife at the back by the 2nd accused person; he lied on the fact that there was a shout of his name that he had killed somebody; he also lied on the fact that he was holding a broken bottle when he was arrested by the band boys.

Why did the 1st accused lie on all these things? This must have been due to a sense of guilt”

It has been said in so many cases that the mere fact that an accused person told some lies is not evidence that he is guilty of the offence charged: See Boy Muka & Ors v The State (1976) 9 – 10 S.C. 305 at 326-327; Anakwe v The state (1976) 9-10 S.C. 255 at 267.

If there had been independent and cogent evidence that an accused committed a crime and the case depended on whether or not the evidence of the accused in his defence to the charge was to be accepted as credit-worthy, the fact that the accused had lied might lead the court to the conclusion that the evidence of the prosecution witnesses on the point was to be preferred to that of the accused. But the mere fact that the accused had lied could not call into existence the evidence that he committed the crime when the prosecution did not call such evidence against him.

It is I believe the error of the lower court in concluding that the accused committed the offence charged just because he lied that impelled the court to hold that the circumstantial evidence available led irresistibly to the guilt of the accused person. It is also important for me to make the observation that no matter what the demeanour of an accused person in the box is, the demeanour cannot by itself alone create evidence that was not called against him. If I may ask, how could the demeanour of the accused in the instant case have been taken as evidence that he stabbed the deceased with the broken bottle he was holding when no one had seen him stab the deceased and when the bottle did not contain a blood stain?.

In Lori v State (1980) 8-11 S.C. at pp.86-87, the Supreme court said:

“It is conceded that circumstantial evidence is often the best evidence. It is said to be 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. R v Taylor and 2 ors 21 Cr app R. 20. See also Rex v Chung Yi Miao (1928) Shortland Re cited in Wills on Circumstantial Evidence, Seventh Edition (1936) p. 324 per Humphreys J. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

The judgment of the lower court at page 51 of the record of proceedings amply reveals that the trial Judge was familiar with the leading judicial authorities on circumstantial evidence for he made reference to R. v Tepper (1952) A.C. 480. R. v Onufrejezyk (1955) 39 Criminal Appeal Report 1 and Udedibia & Ors. v The State (1976) 11 S.C. 133 at 134. The trial Judge however did not heed the warning given in those authorities that in a circumstantial evidence as would sustain a conviction, there must be other co-existing circumstances which would weaken or destroy the inference drawn from the evidence that the accused is guilty of the offence.

In the instant case, as the only weapon found on the accused i.e the broken bottle could not have been the murder weapon; and as the accused was not shown to have departed the scene of crime at any material time, it is possible that another person had stabbed the deceased and departed the scene of crime. The circumstances of the incident could clearly admit the above proposition and if that was so, the circumstantial evidence available could not be said to have led irresistibly to the guilt of the accused.

In the final conclusion, this appeal succeeds. The judgment of the lower court convicting the appellant of the offence of murder and imposing a death sentence on him is set aside. In its place, I return a verdict of not guilty on the appellant. He is accordingly discharged and acquitted. He is to be released forthwith.

{Nigerian cases referred to:}

Anekwe v state (1976) 9-10 SC 255

Lori v state (1980) 8-11 S.C 86

Muka v state (1976) 9-10 S.C 305

Oleagbue v C..P (1965) NMLR 232

Omogodo v state (1932) 11 NLR 6

R v Lawrence (1932) 11 NLR 6

R v Mofor (1943) 10 WACA 251

Udedibia v state (1976) 11 S.C. 133