Mustapha Mohammed & Anor V. The State (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is a murder appeal. The prosecution’s case is that on 11th August, 1995, one Asimiyu Salawu told Oladipupo Fasola (the deceased) that the 1st appellant wanted to see him. The deceased left to see the 1st appellant. After a long time, the deceased did not return. PW1 went in search of him. He got to the house of the 1st appellant and asked for the whereabouts of the deceased. The 1st appellant denied seeing the deceased. A report of missing person was made to the Police.

The 1st appellant was arrested. After the arrest he took the police to a bush where the headless corpse of the deceased was unearthed from a shallow grave. The appellants were charged with conspiring to commit murder and murder of Oladipupo Fasola. The trial Judge convicted the appellants accordingly. Their appeal to the Court of Appeal was dismissed. They have come to this court.

Briefs were filed and exchanged. Appellants formulated the following issues for determination:

“1. Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubt

2. Whether it is not the duty of the prosecution to prove that circumstantial evidence does exist and further that the circumstantial evidence thus proved is such that leads to no other logical conclusion but the guilt of the accused person to ground conviction.

The respondent formulated the following issue for determination:

“Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubt.”

Learned counsel for the appellants, Mr. Oladipo Okpeseye, submitted on issue No.1 that for the prosecution to prove its case beyond reasonable doubt on the charge of murder, it must prove not any but all of the following, that: (a) the deceased died. (b) Death of the deceased resulted from the act of the accused person. (c) The act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He cited Onah v. The State (1985) 3 NWLR (Pt. 12) 236. He argued that the prosecution totally failed to link the death of Oladipupo Fasola to the act of the appellants and therefore did not prove the charge of murder against them beyond reasonable doubt. He cited Uyo v. Attorney-General Bendel State (1986) 1 NWLR (Pt. 17) 418 at 426 and section 138 of the Evidence Act. He said that the Court of Appeal was wrong in holding that because there was no reply brief on the circumstantial evidence, the fact was conceded by the appellants. He contended that with or without a reply brief, the evidence on record, not the respondent’s brief, must establish the circumstantial evidence.

Relying on section 36(5) of the 1999 Constitution, section 138 of the Evidence Act and the cases of Okoro v. State (1988) 5 NWLR D (Pt. 94) 255 at 288; Queen v. Oledima (1940)6 WACA 202; Isiekwe v. State (1999) 9 NWLR (Pt. 617) 43 at 63; R. v. Nwokocha (1949) 12 WACA 453; R v. Owe (1961) All NLR 680; Peter v. State (1994) 5 NWLR (Pt. 342) 45 at 68; Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202 at 215; and Alarape v. State (2001) 5 NWLR (Pt. 705) 79, learned counsel submitted that the prosecution did not successfully link the act of the accused person with the death.

Where a court is to rely on circumstantial evidence and or common purpose both the circumstance to be relied upon and of the common intention must be established by facts capable of proving by inference that death was caused by the act of either or both the appellants with mathematical accuracy counsel argued. He cited Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 at 212.

Referring to Ogbali v. The State, SC 71/1982 (unreported), (Reported in) (1983) 1 SCNLR 127 counsel contended that for common intention to apply, the prosecution must prove three elements: (i) there must be showing that the accused persons had formed a common intention to prosecute an unlawful purpose together. (ii) In furtherance of such unlawful purpose a person was killed in the circumstances amounting to murder. (iii) The death of that person assaulted is a probable consequence of the prosecution of the unlawful purpose. Dealing with the evidence of DW 1, DW2, DW3 and DW4, learned counsel submitted that the prosecution did not prove common purpose. Relying on Onah v. The State (supra); Ikano v. The State (1973) 5 SC 231; and Okafor v. C.O.P. (1965) NMLR 20, learned counsel submitted that suspicion no matter how strong cannot found a conviction.

On issue No.2, learned counsel repeated so much of the arguments on issue No.1. He further relied on Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 at 212; Abieke v. The State (1975) 9-11 SC 75; and Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 471 and section 148 of the Evidence Act.

He examined the evidence of PW2, 3, 4 and 5 and submitted that the facts relied on by the prosecution to make the inference or proposition that the appellants murdered the deceased are most improbable when considered against the surrounding circumstances and cannot sustain a conviction. He urged the court to set aside the judgment, conviction and sentence of the appellants and enter in its place discharge and acquittal.

Mrs. A. A. Babawale, learned DPP of Ogun State, contended on the only issue that the prosecution in proof of any criminal charge against an accused person can rely on the following forms of evidence in proof of its case, viz: (a) confessional statement; or (b) circumstantial evidence; or (c) evidence of eye witnesses. She cited Emeka v. State (2001) 14 NWLR (Pt. 734) 666 at 683. She said that the prosecution relied on circumstantial evidence and confessional statements of the appellants in proof of its case. She cited Akinmoju v. State (1995) 7 NWLR (Pt. 406) 204 at 212; and Igbabele v. State (2004) 15 NWLR (Pt.896) 314, (2004) 34 WRN 83 at 96.