Alfred Aigbadion V. The State (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N. 

The appellant was charged in the High Court of Edo State, sitting in Benin City, with the murder of his girlfriend – Victoria Ojo, on the 5th day of January 1993. He was found guilty of the offence and was sentenced to death by the learned trial judge (Edokpayi, J.)

The case for the prosecution at the trial was that the appellant and the deceased were friends. During the night of the 4th day of December, 1993 they were together in the room occupied by the appellant at No. 21 Uselu/Lagos Road, Benin City. The appellant stopped a taxi early in the morning about 5.00 a.m. on the 5th day of December 1993 to take the deceased to the Central Hospital Benin City. The deceased was taken to the hospital. On the 17th day of December 1993, a post-mortem examination was conducted in the hospital mortuary on the corpse of the deceased by Dr. Suleiman Abu, (PW 3) Chief Consultant Pathologist at the Central Hospital. The body of the deceased was identified to him by one John Ojo, P.W .2. a brother of the deceased. On examining the body, P.W.3 found that “rigor mortis has passed away. There was a groove (a depression mark) on the neck. In the front. the groove was Oat and it had a grey base. The depth of the groove was about 3 millimetres. There was no ligature attached. It was just a groove (a depression mark). From the front this groove extended upwards and backwards at an angle of thirty degrees to the back of the neck where it disappeared behind the left ear lobe. On the left from it went upwards and backwards at the same angle of thirty degrees to the back to the same left ear lobe where it again disappeared. Every thing was to the left. Both eyes were covered with blood under what is called conjuctival. The tongue protruded between the clenched teeth. The larynx, trachea, the pleural that covers the lungs and the pericardium that covers the heart were covered with showers of spots of haemorrhages. The face generally looked puffy. There were three deep marks on the right side of the neck as made by end of the digits of the finger … The dissection of the neck showed moderate bruising of the muscles of the neck which also affect the top of the voice box … All the other systems of the corpse were examined and they were normal.’”

When John Ojo (P.W.2) was informed of the death of the deceased he went to the mortuary at the Central Hospital. Benin City, where he saw her corpse. On the 5th day of January, 1993 he went to Ogida police station, Benin City and lodged a complaint about the death of the deceased. Police Sergeant Nyene Franklin, P.W.4 was assigned to investigate the case. He was taken to the appellant’s house by P.W. 2 where he invited the appellant to the police station. At the police station the appellant was charged with the murder of the deceased. The appellant volunteered a statement under caution – (Exhibit B) in which he stated that the deceased had been his girlfriend. That although they both lived. in Benin City and belonged to the same village – Ikenobore, each one stayed at his separate house in Benin City. On the 5th day of December, 1993 (sic) the Appellant and the deceased left Ikenobore together and returned to Benin. That on arrival in Benin they went to the house of the appellant together. That they went to bed later at about 1.00 a.m. on the 6th of December, 1993 (sic) the deceased woke up the appellant and complained that she was suffering from stomach ache. That at about 5.00 a.m. the appellant hailed a taxi to take her to the Central Hospital. That the deceased was carried into the taxi by the appellant who was assisted by a co-tenant of his. That all the other co-tenants in the house were aware of the deceased’s illness at the that she was being taken to the hospital. That the appellant obtained a patient’s card at the hospital from one Johnbull who was an employee of the hospital. That the appellant became a friend of the deceased in 1990 and they had a minor quarrel only once over the money he gave her for Christmas celebration in 1990. That the deceased has a child for another man whom the appellant had never met. That the appellant had no reason or cause to strangulate the deceased. The investigation of the case was transferred from P.W. 4 to Daniel Iwerieboh (P. W.I) now a retired Inspector of Police, on the 6th day of January, 1994. He decided to take another statement from the appellant under caution (Exhibit A). In the statement the appellant stated as follows. I left Ikenobore village to Benin City at about 4.30 p.m. while she arrived in my house at about 9.00 p.m. of same 3/12/93. I took my bath with her and we went to bed. I had sex with her once (sic). At about 2.00 a.m. she started complaining about stomach pain. I enquired from her what happened. she told me that it is the usual stomach pain. She had been having stomach pain. I went outside and looked for a vehicle at about 5.00 a.m. of 4/12/93 I got a vehicle and I conveyed her to Central Hospital Benin City where she was certified dead. She did not die in my house. I cannot tell whether she died on her way to the hospital because I was not a doctor. It was in the hospital that she was certified dead by the doctor. I did not poison her. I did not administer any drug on her when she started complaining of the stomach upset. As I was in the ward with the corpse, the doctor told me to go outside and my relations later informed me that she is dead (sic). I decided to go and inform Solomon who later told Ighowonyi and they went to our village to tell the deceased’s family about the incident. I was in Ighowonyi’s house yesterday 5/1/93 when police came and arrested us that we know (sic) the cause of Victoria’s death. When she was in my house. she was rolling on the ground. She did not vomit and she did not stool, (sic).”

The case for the defence is based on the testimony of the appellant only. He testified that the deceased has been his lover secretly without the knowledge of her parents. He denied killing the deceased. He admitted that they both returned to Benin City from Ikenobore, They went to bed together at about 1:00 p,m. That between 1.00 and 2,00 a.m. the deceased woke up from sleep and informed him that she had stomach pain. He sympathised with her. After that she began to roll on bed. Two of his co-tenants in the house sat with him and were showing sympathy to the deceased. At about 5.00 a.m. he stopped a taxi in front of his house. Himself and the two co-tenants took the deceased into the taxi which conveyed her and him together to the Central Hospital. On arrival at the hospital. he obtained a patient’s card in her name. The card was issued by one Johnbull whose surname he could not remember. Johnbull was a member of the staff of the hospital and was working at the counter. After obtaining the card the nurses asked him to wait for the doctor. It took about two hours before the doctor arrived and certified the deceased dead. He said that he did not know at what time she died but that she died at the Central Hospital and that he did not strangle her to death.

Under cross-examination the appellant said that he did not know Johnbull before obtaining the patient’s registration card from him, He said that he was alone

with the deceased up to 1.00a.m. in the night in his room before the deceased began to have stomach pain. That he was joined in his room by his two co-tenants from about 1.00a.m.to 5.00a.m to look after the deceased. The co-tenants accompanied him to the hospital when conveying the deceased there in the taxi, He denied knowing one Emmanuel mentioned in the testimony of P.W.4 to be the father of the deceased’s child.

In his judgment, the learned trial judge rejected the appellant’s defence he accepted the evidence of the Chief Consultant Pathologist (P.W.3). Learned trial judge considered the evidence called by the prosecution to be circumstantial. He ended his judgment by summarising thus -“On the whole. I accept the evidence of the prosecution witnesses and reject the evidence of the accused person when he said the deceased died of stomach ache and when he said that he did not strangle the deceased to death. I find as a fact that the accused person strangled Victoria Ojo to death in circumstances which amount of (sic) murder. In consequence. I find that the prosecution has proved its case of murder against the accused person beyond reasonable doubt.” (parenthesis mine)

Aggrieved by the decision the appellant appealed against the conviction by the learned trial judge to the Court of Appeal. Benin Division. The appeal which was heard by Achike. JCA, as he then was, together with Akintan and Rowland. JCA, was dismissed. The appellant, therefore, appealed further to this court.

Appellant’s brief of argument in this court was at first prepared by Emmanuel C. Ukala. Esq. of counsel and was filed on 8th April. 1997. However, this was substituted with another brief prepared by Alhaji F. A. Oso which was filed with leave on the 11th day of October,1999. The respondent’s brief of argument which as filed on the 3rd day of December, 1999 is in reply to the latter brief filed by Alhaji F. A. Oso. The reason for all this is that the notice of appeal filed by the appellant on the 15th January, 1998 from Benin prison contained two grounds of appeal which Alhaji F. A. Oso considered incompetent. He, therefore, applied to this court for inter alia extension of time to appeal on fresh grounds of appeal. Leave was granted and he filed the appellant’s brief of argument in support of the three grounds contained in the notice of appeal which he filed on behalf of the appellant.

Two issues for us to determine have been postulated in appellant’s later brief. They are:

i. Whether the evidence of PW3, a doctor Abu. was full-proof of the case against the appellant by circumstantial evidence.

ii. Whether the decision of the High Court was properly sustained by the court below.”

For the respondent, only one issue has been formulated. It is –