Bernard Ojugbeli V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant was arraigned before the Delta State High Court sitting at Asaba on a charge of murder. The High Court after taking evidence from the State and the appellant in a considered judgment convicted the appellant and sentenced him to death by hanging. Dissatisfied with this judgment the appellant had filed this appeal. The notice of appeal contains the following grounds of appeal:-

“1. The learned trial Judge erred in law when he convicted the appellant for the offence of murder based on the circumstantial evidence when the necessary ingredients for the offence were not proved beyond reasonable doubt.

2. The learned trial Judge misdirected himself when he held that “The only incident linking the accused with the death of the deceased as stated in the evidence of PW1 above is the fact that a door in a primary school was found locked and when it was forced open, the accused ran out of it and the people conducting the search held him. Also, the bicycle, cutlass, slippers and wrappers belonging to the deceased were found in the school room where the accused was hiding”.
3. The learned trial Judge misdirected himself when he held that “To my mind, the evidence adduced by the prosecution fixed the accused person to the death of the deceased with sufficient cogency and excludes the possibility of someone else having done it”.
4. The learned trial Judge erred in law when he held that “In this case, the unshaken evidence of the prosecution witnesses particularly the PW1 has painted a clear picture of circumstances leading to no other conclusion than that the accused was responsible for the death of the deceased”.
5. The learned trial Judge erred in law when he held that “It seems to me that from the surrounding circumstance of the case particularly the evidence that the deceased was found lying on the ground with multiple matchet cuts and covered with grasses. It points to no other conclusion than the fact that her death was intended by the assailant”.
6. The judgment of the trial court is unreasonable and cannot be supported having regard to the evidence.”

Parties exchanged briefs of argument. From the six grounds of appeal set out above the appellant distilled one issue for determination to wit –

“Whether the circumstantial evidence adduced in this case proved the guilt of the appellant beyond reasonable doubt before he was convicted for murder and sentenced to death.”

The respondent also distilled only one issue for determination and that is –

“Whether the lower court was right in convicting the appellant from the evidence (direct or circumstantial) before it.”

To appreciate this appeal, it is necessary to set out the facts of the case. The deceased, Comfort Ishie was resident in her village, Ebedie Uno Isemelu. She was a farmer. On 14th April, 2003, she left her home in the morning for her farm. She left on her bicycle. In the evening, she did not come back. Her family was alarmed. The PW1 her brother reported to the police that his sister was missing. He testified further that in addition, after searching for her in their village and not seeing her, he reported to the neighbouring community, Umuezeogoli. The people of this community joined in the search for the deceased. They found her dead body with wounds on the body in a shallow grave in a bush on 15th April, 2003.

According to PW1, they then proceeded to a nearby primary school where they found a room locked. They forced open the door and the accused ran out of the room. He was apprehended. Inside the room were the deceased’s bicycle, clothes and footwear. Note that none of these items were tendered at the trial. The PW1 testified that the injuries he saw on her sister were machete cuts. No machete was recovered. PW1 took the body of his sister to the Obiaruku General Hospital. The corpse was identified by PW2 Mr. Godwin Izah to one Dr. Obora who conducted an autopsy on the body of the deceased. The said Dr. Obora was not called to testify nor was his autopsy report tendered in evidence. PW3 was a policeman, Sgt. Bessey Eko. He testified that PW1 took part with him in the investigation of the case. The PW1 recorded the statement of the accused person. He tendered the statement as exhibit “A”. PW4 was Usman Abdul, a police officer. He knew Sgt. Tagher. He could not tell where Sgt. Tagher was as he had been posted out. He knew the signature of Sgt. Tagher who took a statement from the accused. He tendered the statement exhibit B. In these two statements the accused accepted being possessed of the deceased’s bicycle and clothings which he claimed he found and was looking for the owner and saw the body of the deceased. In exhibit B he in fact accepted he was the fellow found in the school room. But in his oral testimony in court he repudiated the two statements. He had seen the bicycle and clothes of the deceased. He also saw the body. He then went back to his village and reported to the chief who sent people with him to investigate. They then returned home. He made statements to the police and signed them but they were never read back to him.

As set out correctly by both parties the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. In a charge of murder for the prosecution to succeed, it must establish beyond reasonable doubt the following ingredients –

1. That the victim died.
2. That the death of the deceased was as a result of an act of the accused person.
3. That the accused acted intentionally with the knowledge that death or grievous bodily harm was a probable consequence.

See Millar vs. The State (2005) 8 NWLR (Pt. 927) 236; Giwa vs. The State (1996) 37 LRCN 69; Philip Omogodo vs. The State (1931) 5 SC 5.

The prosecution to discharge that onus may do so by direct evidence, the confessional statement of the accused or circumstantial evidence – see Moses vs. The State (2003) FWLR (88141) 1967; Emeka vs. The State (2001) FWLR 66. Where the evidence led is circumstantial, it must be cogent and lead to no other conclusion except the guilt of the accused. In the words of Lord Hewart in Taylor vs. R. cited with approval in State vs. Ogbubunjo (2001) 2 NWLR (Pt.698) 576 such circumstantial evidence must be –

“evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics.”

This is because no amount of suspicion can ground a conviction.