Chima Ijioffor V. The State (2001)
LAWGLOBAL HUB Lead Judgment Report
AKINTOLA OLUFEMI EJIWUNMI, J.S.C.
At the conclusion of the hearing of this Appeal on the 25th of January 2001, this Appeal was dismissed by me. Thereafter I indicated that my reasons for its dismissal would be given on the 20th April 2001.
The Appellant was charged upon an information filed by the State, that on or about the 29th day of November, 1994 at Benin City in the Benin Judicial Division, he murdered one Endurance Osayima, punishable under section 319(1) of the Criminal Code Cap. 48, Vol. II Laws of Bendel State of Nigeria 1976, applicable in Edo State. Following the plea of the Appellant that he was not guilty of the offence, the State called six witnesses in support of the case for the Prosecution. The Appellant then gave evidence in his own behalf. He did not call any other witness to testify on his behalf.
The facts of the case made out for the Prosecution may be set out thus. The Appellant and Magdalene Airhuoyuwa, PW 1, were evidently lovers and as a result of that relationship, the PW1 first became pregnant in 1993 for the Appellant. That pregnancy was terminated as the Appellant clearly told PW1, that his family would not accept a pregnancy in such circumstances. After that pregnancy was aborted they continued with their relationship and which culminated in another pregnancy. Upon being informed of her condition by PW 1, the Appellant again told PW 1 to abort it. Though according to PW 1, Appellant gave her the sum of N1,800 for that purpose, she refused to abort the pregnancy. Eventually, she delivered a baby boy who was named Endurance Osayima, and who later became the victim of this murder. He would be referred to as Endurance from now. It would appear that the Appellant did not relent in his opposition to PW1 having a child for him having regard to the nature of their relationship. This he made manifest sometime after the birth of Endurance when he visited the house of PW1. On that day after he had enquired after the parents of PW 1, and was told that they were not at home, he threatened that he would kill the child since the mother had refused to abort the pregnancy as he wanted her to do. He came again to the PW1’s house on the 29th November, 1994 at about 7.30p.m. When he came, after learning that the parents of PW 1, were not at home, he left. Sometime afterwards and on the same day, i.e. 29th November, 1994, the Appellant returned to the house of PW 1. When he came in this time, he met PW 1 and other children in the family dancing. The Appellant then asked PW1 to bring the baby, i.e. late Endurance to him, where he was sitting on the bed. Though the mother, PW 1 explained to the Appellant that the baby had excreted in his pant, he insisted that the baby be handed over to him. PW1 then gave the baby to him after she had removed the dirty pant. About that time, Appellant gave the children the sum of twenty Naira to go out to buy coke for themselves. Soon after handling over baby Endurance to the Appellant, PW1 went to the backyard to wash the baby’s pant that was soiled.
While, washing the pant at the backyard, PW 1 heard the baby crying loudly and she ran immediately into the room where she left the Appellant and baby Endurance. The Appellant then gave her the baby, but PW1 noticed immediately that the mouth of the baby was white. PW1 then asked immediately the Appellant what he had put in the mouth of baby Endurance. Appellant did not answer that question. Rather he kept saying repeatedly, “breastfeed the baby”. PW1 dutifully offered her breast to the baby, but to her dismay baby Endurance could not suck the breast, rather she noticed the baby stretching. At that moment, Appellant ran away through the bush facing the house of the father of PW 1.
Soon after the Appellant ran away, baby Endurance was rushed immediately by PW 1 to where her mother was. From there baby Endurance was carried to the hospital where he was pronounced dead.
Dr. Suleiman Abu, the Chief Consultant Pathologist was invited by the police on 29/11/94 to carryout a post-mortem examination on the body of the deceased, baby Endurance. The corpse was identified to the doctor by one Felix Airuoya. The evidence of the doctor following the post-mortem reads, inter alia, thus:
‘”The corpse was that of a male child of average nutrition. Rigor mortis had passed away. There was no external injury. On examination internally there was yellowish necrotic substance (dead tissue) in the mouth. That extended down through the mouth to the gullet, stomach and to the intestine. There was some bleeding into the stomach. I took a scraping of the yellowish substance. The test on it was positive for acid litmus meaning acid test. All other systems appeared normal. I gave the cause of death in my opinion to be corrosive acid poisoning resulting in chemical bums and shock. The deceased was 10 weeks old.”
And under Cross-Examination the witness said, inter-alia, as follows:
“I did a blue litmus test and it turned pink. This irritates acid. The strength of the acid was unknown but the burns it created made to estimate that it was a corrosive acid. A weak acid cannot be corrosive……”
The Appellant at the close of the case for the Prosecution, elected to give evidence in his behalf. But he did not call any witnesses in his defence. In the course of his evidence in chief he duly admitted his relationship with PW 1, and the fact that PW 1 became pregnant again for him, and which resulted in the birth of the deceased son, Endurance. It is also significant that he admitted that he went to the house of PW 1 on the 29th of November, 1994. He claimed that when he got there he found PW 1 with the child crying. He then told her to breastfeed the child, and she did so in his presence. But the child continued to cry, and he had to take the child from the mother. However as the child continued to cry, he handed him over to the mother and left them. He further claimed that when he came back to the house later the same evening, he was arrested and beaten by the relations of PW 1, who took him to the police station. It was at the police station that he learnt that the child had died as a result of acid poisoning. He denied that he had anything to do with the death of his son, baby Endurance. The learned counsel appearing thereafter addressed the court.
After a careful review of the evidence led at the trial, the learned trial Judge gave a well considered judgment at the end of which the learned trial Judge held that the Prosecution had established beyond reasonable doubt the guilt of the Appellant for the offence of murder of baby Endurance as charged. The Appellant was therefore convicted of the offence and sentenced to death by hanging.
The Appellant thereafter lodged an Appeal to the court below. His Appeal was however dismissed. Hence, his further Appeal to this Court.
Pursuant thereto the learned counsel for the Appellant, I. E. Imadegbelo, Esq. filed and served the Appellant’s Brief. And for the State, the Respondent’s Brief was also filed and served.
For the Appellant’s, his learned counsel set down in the Appellant’s Brief the following as the issues for the determination of the Appeal:
- Whether the circumstantial evidence relied upon against the Appellant was positive, cogent and conclusive.
- Whether the failure of the prosecution to call a vital and material witness is not fatal to the prosecution’s case.
- Whether the prosecution proved his case beyond reasonable doubt against the Appellant.
- Whether or not the Appellant was convicted on properly evaluated evidence.
For the State, however, two issues were identified for the determination of the Appeal in the Respondent’s Brief. They are (1) whether the circumstantial evidence was sufficient to warrant the conviction of the Appellant for the offence of murder and (2) whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt. It is my respectful view that the issues for the determination of this Appeal set down for the Appellant and Respondent are not dissimilar. It is I think right to say that a proper appraisal of the Grounds of Appeal, the evidence revealed in the Record and the judgments of the court below that the two issues for the determination of the Appeal are as identified in the Respondent’s Brief.
The first issue that falls to be considered is whether the circumstantial, evidence relied upon against the Appellant was positive, cogent and conclusive.
The thrust of the argument of learned counsel for the Appellant in the Appellant’s Brief and in his oral submission before us is that the lower courts were wrong to have convicted the Appellant upon evidence wrongly considered as circumstantial evidence. Though it is conceded that there was no direct evidence as to who killed the deceased, however the learned counsel for the Appellant classified the evidence of PW1, PW2, PW3 and PW4 relied upon to convict the Appellant as doubtful circumstantial and hearsay evidence. He then went on to specifically contend that the evidence of those witnesses as to the poisoning of the deceased by the Appellant is hearsay, not circumstantial evidence. The premise of that his submission appears to be that none of them was present at the scene when the Appellant allegedly gave the deceased corrosive acid.
In this con, it is his submission that the learned trial Judge wrongly acted on this inadmissible hearsay when she held that:
“Since the child was alright before the accused came and accused was left alone with the deceased before the distress cry of the deceased, the circumstantial evidence points to the accused and no other person as the person who gave the child corrosive acid which caused the death of the deceased.”
He further argued that the Learned Justice of the Court of Appeal, per Sa’ Aba, JCA also fell into error when in upholding the finding of the trial court held thus:
“I agree with the finding of the learned trial Judge that the circumstantial evidence points only to the Appellant as the person who gave the child the corrosive acid which caused his death. As can clearly be seen, the evidence of PW2 which corroborates the evidence of the prosecution, remained unchallenged and uncontroverted, despite the rigorous Cross-Examination by the Defence Counsel.”
In support of his submissions learned counsel referred to several authorities.
I will later in this judgment refer to them as deemed necessary.
The learned Counsel for the State, has in opposition to the above position of the learned counsel for the Appellant, argued in the Respondent’s Brief that the lower Court was right to have upheld the finding of the learned trial Judge. He further argued that the finding and conclusion reached by the lower Court be upheld. Several cases which would be considered in the later portion of this judgment were also referred to buttress the submission of learned Counsel for the Respondent.
It is manifest from the contending arguments of learned counsel that the crucial issue to be-resolved in this Appeal acutely rested on whether the Appellant was properly convicted upon evidence adjudged to be circumstantial evidence.
The contention of learned counsel for the Appellant that the lower courts relied wrongly upon hearsay evidence to convict the Appellant, would first be considered. Hearsay evidence or hearsay rule has been succinctly formulated by Professor Cross thus:
“Express or implied assertions of persons other than the witness who is testifying and assertions in documents produced to the court when no witness is testifying are inadmissible as evidence of that which is asserted.” (See Cross Evidence, 4th Edition, p. 387).
The above formulation of the Hearsay Rule encompasses the provisions of Section 77 subsections (a), (b), (c) and (d) of the Evidence Act Cap. 112 of Vol. VIII of the Laws of Nigeria, 1990 which apart from the provisos thereto, read thus:
Section 77: Oral evidence must, in all cases whatever, be direct –
“(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact.
(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.
(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense in that manner.
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.”
Having regard to the complaint of the Appellant that PW1, PW2, PW3 and PW4, each gave hearsay evidence that it was the Appellant who gave the deceased acid, I decided to re-read the evidence of these witnesses. After a careful perusal of the evidence of each of these witnesses, I cannot find any part of their evidence where anyone stated that the Appellant gave acid to the deceased. Each of these witnesses gave evidence only upon what they saw, and or experienced during the incident. It certainly cannot be said having regard to the provisions of Section 77 of the Evidence Act (supra) referred to above, that any of these witnesses gave evidence of what they did not see or hear themselves. The hearsay rule is a very salutary rule indeed. It is a rule which is grounded upon commonsense as the focus of it is to prevent a person from being accused or found guilty of an offence which he did not commit. It is a self evident fact, malevolent people could manufacture such evidence as they would to falsely accuse persons of offences which they did not commit. By reason of this rule, courts are enjoined and indeed under a duty not to accept and/or convict an accused person upon testimony of witnesses who did not see, hear, or perceive by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case, or even in a civil case. This rule, except for such exception as the res gestae rule and certain recognized statutory exceptions, which we are not concerned with in this case, is mandatory for all courts. Should a trial court convict an accused upon evidence adjudged to be “hearsay” evidence, an appellate court may quash such conviction, if there are no other evidence upon which the conviction of the accused could properly and safely be convicted.
Returning to the instant case, I must hold that there is no merit in the contention of the Appellant that PW1, PW2, PW3, and PW4 gave hearsay evidence.
It is my respectful view that learned counsel for the Appellant apparently misconceived the conclusion of the Courts upon the pieces of the evidence before those Courts that the Appellant could be convicted upon circumstantial evidence, having regard to the totality of the evidence led at the trial of the Appellant.
How then, did the Courts below reach this conclusion The trial Court at pages 37 -38 considered the question thus:
“….. she (PW1), heard the child crying and she rushed back. She saw that the mouth of the child was whitish and the child could not suck again and was stretching. Since the child was alright before the accused came and the accused was left alone with the deceased before the distress cry of the deceased the circumstantial evidence points to the accused and no other person as the person who gave the child corrosive acid which caused the death of the deceased. See Peter v. State (1997) 12 NWLR (Pt.531) 1; (1997) 54 LRCN P.2786 (sic) ratio 8. For circumstantial evidence to support a conviction, it must not only be cogent, complete and unequivocal, but compelling and lead to irresistible conclusion that the prisoner and no one else is the murderer. Yongo v. COP (1992) 8 NWLR (Pt. 257) 36 and Alake v. The State (1992) 9 NWLR (Pt. 265) 260 referred to. It must leave no room to reasonable doubt. In this case, the circumstantial evidence is mathematically accurate that it points to the one and only irresistible conclusion that the accused was the one responsible for the death of that defenceless child. The evidence of PW1, (sic) the Doctor is very clear as to the cause of death that is poison, corrosive acid. The offence could not have been (sic) committed by any other person. Everything points to the accused as the murderer. It was a premeditated and wicked act. I do not believe that the deceased took the acid by himself although the Doctor said it was possible. There would have been evidence of the acid burning his hand. There is no such evidence.”
In the above excerpt from the judgment of the learned trial Judge, the evidence before the court was in my view carefully reviewed. And having also considered the evidence of the accused, which is mainly to the effect that he did not commit the offence, the learned trial Judge proceeded quite properly, to find him guilty upon the basis of circumstantial evidence. It is of course common ground that there was no direct evidence that connected the Appellant with the commission of the despicable murder of the innocent child.
The approach of the court below to whether the Appellant was properly convicted is not dissimilar to that of the trial Court. In the course of the judgment of Ba’Aba, JCA of the court below, some of the leading authorities germane to the question raised with regard to the conviction of an accused person upon circumstantial evidence were carefully reviewed before the conclusion was reached that the trial court was right to have convicted the Appellant upon such evidence. The following are some of the cases referred to by the court below:- R. v. Sala Sati (1938) 4 WACA 10; Teper v. The Queen (1952) AC 480; Stephen Ukorah v. The State (1977) 4 SC 167; Paulillus Udedibia & Ors. v. The State (1976) 11 SC 133 at 138 -139; Valemille Adie v. The State (1980) 1 – 2 SC 116.
In all these cases, the Courts have pronounced with varying formulations what circumstantial evidence means and when such evidence would be called in aid to establish the guilt of a person charged with a criminal offence.
In view of what I perceived as the misconception of learned counsel for the Appellant with regard to his submission that the Appellant was found guilty upon hearsay evidence, I think it is necessary to observe, first, that the Appellant was not convicted upon hearsay evidence, I must therefore say that the learned counsel for the Appellant was wrong with regard to that submission. Contrary to his submission the Appellant was clearly convicted upon a specie of evidence generally referred to as circumstantial evidence. Circumstantial evidence is receivable in criminal as well as in civil cases; and, indeed, the necessity of admitting such evidence is more obvious in the former than the latter; for, in criminal cases, the possibility of proving the matter charged by the direct and positive testimony of eye-witnesses or by conclusive documents is much more rare than in civil cases; and where such testimony is not available, the Judge sitting alone as a Judge of law and facts is permitted to complete the elements of guilt or establish innocence. In other words the Judge is permitted to raise a presumption from the proof of some fact the existence of another fact without further proof of that other fact. In raising this inference the evidence relied upon must be narrowly considered. Also, while circumstantial evidence may be conclusive, it is prudent and necessary to be sure that before drawing the inference of the accused’s guilt from circumstantial evidence that there are no other co-existing circumstances which would weaken or destroy the inference.
The learned authors of Achibold: Criminal Pleading, Evidence and Practice have in its 39th Edition at paragraph 1113 stated that such presumption of fact are usually divided into three classes. They read:
“Violent presumptions, where the facts and circumstances proved raised a presumption so strong that guilt almost necessarily follows. Probable presumptions, where the facts and circumstances proved raise a presumption upon which the jury may be directed that if satisfied by the evidence that the facts alleged by the prosecution are established and no explanation is offered, they may find a verdict of guilty.
Light or rash presumptions, which have very little weight or validity at all. See 3 BL. Comm. 372; Co. Litt 6b; and see also R v. Stoddart, 2 Cr. App. R 217 at p. 241.”
The first type of presumption may be illustrated with the following examples:
“If upon an indictment for murder, it were proved that the deceased was murdered, and that the Defendant was immediately afterwards seen running out of it with a bloodstained knife in his hand, these facts would raise a violent presumption that the defendant was the murderer; for the blood, the weapon, and the hasty flight, are all circumstances necessarily attending the fact presumed, namely the murder. Co. Litt 6b. Upon an indictment for stealing in a dwelling house if the defendant were apprehended a few yards from the outer door, with the stolen goods in his possession, there would arise a violent presumption of his having stolen them, but if they were found in his lodgings sometime after the theft, and he refused to account for his possession of them, this, together with proof that they were actually stolen, would amount not to a violent, but to a probable presumption merely, but if the property were not found recently after the loss, as, for instance, not till sixteen months after, it would merely be a light or rash presumption and entitled to very little weight. (See: R v. Adams, 3 C & P 600; R v. Cooper, 3 C & K 318 par. 1144. Archibold Criminal Pleading, Evidence & Practice 39th Edition.)”
I will now briefly refer to some of the leading cases where the courts have either held that circumstantial evidence upon which the Appellant was convicted was cogent enough to establish that it was the Appellant who committed the offence and no other. In Teper v. R, (1952) A.C. 480, at the trial of the Appellant on a charge of maliciously and with intent to defraud, setting fire to a shop in which he carried on the business of a dry goods store, evidence given by a police constable was admitted for the purpose of identification and without objection. The incriminating evidence consisted of what the constable heard from a woman who did not herself give evidence at the trial. It was also common ground that the incident took place at a distance of more than a furlong from the site of the fire and that it happened not less than 26 minutes after the fire was started. The Appellant was convicted by the trial Court, and he thereupon appealed to the House of Lords in England. It was held that the words spoken by the woman did not form part of the res gestae and were not therefore excepted from the fundamental rule against the admission of hearsay evidence. The evidence was wrongly admitted, and there being no other evidence of identification which was of any value, and the circumstantial evidence which alone the Crown had to rely on to connect the Appellant with the commission being inclusive for the purpose, the conviction was set aside. Lord Normand who delivered the judgment of the court made the following memorable observation in the course of his judgment:
“Circumstantial evidence may sometime; be inconclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. Joseph commanded the steward of his house, “put my cup, the silver cup, in the sack’s mouth of the youngest,” and when the cup was found there Benjamin’s brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
R. v. Sala Sati (1938) 4 WACA to and R v. Onufrejczyk (1955) 1 Q. B 388; 39 Cr App R. I are authorities for the proposition that the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the Defendant has made no confession of any participation in the crime.
I think reference should also be made to such cases as Valentine Adie v. The State (1980) 1 – 2 S.C. 116 at 122, this Court set aside the conviction of the Appellant for murder. Appellant’s conviction was based upon what the lower courts perceived to be circumstantial evidence as there was no direct evidence connecting the Appellant with the injuries that resulted in the death of the deceased. The oral evidence of the doctor who performed the post-mortem was found to be inconsistent with what was stated in the post-mortem report made at the examination of the deceased. The evidence of the doctor was therefore rejected. As there was no evidence other than the circumstantial evidence which was found inconclusive, the Appellant’s Appeal was upheld. He was discharged and acquitted. In the case of Stephen Ukorah v. The State (1977) 4 S.C. 167, the conviction of the Appellant was based on circumstantial evidence, this Court allowing the Appeal and setting aside the conviction and sentence had this to say:
“What has to be established is the link between the Appellant (or his actions) with the death of the deceased, and in the absence of clear unequivocal evidence.
(1) that the deceased died directly from the assault by the Appellant on him, or
(2) that the Appellant was armed with any sharp instrument during the assault on the deceased, it becomes necessary to have a medical evidence on the cause of death so as to eliminate the problem raised by the existence of a long deep cut on the body of the deceased. And until that problem is eliminated we are of the firm view that it must be very unsafe to convict for murder as charged on the circumstantial evidence available”,
In that case, the evidence which was before the trial court was that on the night preceding the death of the deceased, the Appellant got hold of the deceased and started to beat up the deceased with his fists. The witness who gave this evidence left the Appellant and the deceased as he had to run away for his own protection. The next morning he went back to where the deceased and himself were the previous night. There the dead body of the deceased with a deep cut. At the trial of the Appellant no evidence was given about how the deceased sustained the injury that presumably caused his death. There was also no medical evidence to that effect so as to establish the cause of death. Hence the Appellant was discharged and acquitted as aforesaid. Idigbe, JSC, gave the reasons for setting aside the conviction of the Appellant when he said, inter alia, thus:
“From the foregoing facts it is, we think, pretty clear that the circumstances surrounding the death of the deceased given in evidence when accepted (as, indeed they were by the trial court) do not make such a “complete and unbroken chain of evidence” as would, justify a jury (or a trial court) in coming to the irresistible conclusion that the prisoner at the bar (in this case) the Appellant and no one else was the murderer.”
It is therefore manifest from the cases to which I have referred to and indeed other relevant cases which have not been referred to in this judgment, that for circumstantial evidence to sustain the conviction of an accused, it must be established that the evidence relied upon must be consistent with the prisoner’s guilt and inconsistent with any other rational conclusion. It is also necessary before drawing the inference of accused’s guilt to be sure that there are no other co-existing circumstances which would weaken such inference. See Obalum Anekwe v. The State (1976) 9-10 S.C. 255, 264; Teper v. Queen (supra). In the latter case it was said that in drawing inference of the guilt of an accused person from circumstantial evidence, great care must be taken not to fall into serious error based on fallibility of inference. Circumstantial evidence must always be narrowly examined. On the other hand, it has been said that circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence.
In Igbo v. The State (1978) 3 SC 87; (1978) N.S.C.C. 166, the Appellant was charged with the murder of the deceased. The deceased left her house for a religious service and never returned. The Appellant was the last person with whom she had been alive as 3 witnesses testified that she was last seen riding at the back of the Appellant’s bicycle. The Appellant denied ever carrying her at the back of his bicycle. The Appellant was convicted of murder and he appealed, contending that the circumstantial evidences did not point irresistibly to the guilt of the accused. This court dismissed that contention. And it was held, that the only irresistible inference from the circumstances presented by the evidence is that the Appellant killed the deceased as no other reasonable inference can be raised having regard to the facts which were accepted by the learned trial Judge. Those facts amply supported by evidence, called for an explanation, and beyond the untrue denials of the Appellant (as found by the learned trial judge) none was forthcoming. See R v. Mary Ann Nash (1911) 6. C.A.R. 225 at 228; Udedibia & Ors. v. The State (1976) 11 SC 133; (1976) N.S.C.C. 669 at 672; Lori .v. State (1980) 8-11 S.C. 81; Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469 at 478; Adepetu v. State (1998) 9 NWLR (Pt.565) 185 at 224.
I now turn to the instant case. The evidence of PW1, PW2, PW3 and PW4 which the learned trial Judge believed and accepted have earlier been considered in this judgment. I do not need to go over them again. Suffice it to say that the evidence of these witnesses established that the deceased child was handed over to the Appellant hale and hearty. That shortly afterwards the baby was found with a whitish substance in his mouth and crying. Indeed it was his cry that attracted the immediate attention of his mother who then rushed from the backyard to where she left him with his father. She tried to calm him down by offering her breast to him, but the baby could not suck. Following this incident the child died. The Doctor PW6 who performed the post-mortem affirmed the cause of death to be corrosive acid poisoning resulting in chemical burns and shock. The Appellant denied that it was his act, though he admitted that when he visited the house of PW1, he saw that the baby, a ten week old baby, was crying and couldn’t suck the mother’s breast. The learned trial Judge accepted quite properly the evidence that the child died as a result of the burns as a result of the corrosive acid introduced into the system. It is of course patent that there was no direct evidence as to who gave the corrosive acid to the deceased. The trial court had only circumstantial evidence of the witnesses who gave evidence at the trial. And after due consideration of the evidence, the learned trial judge came to the conclusion that the Appellant must have been the one, and no other who introduced the-corrosive acid into the deceased.
I have also carefully considered the evidence on the printed record, and I am satisfied that the court below was right to have affirmed the conviction of the Appellant.
It has also been argued for the Appellant that a witness who happened to have been the grandmother of PW 1, was in the house at the time of the incident, and should have been called as a witness. I do not think that there is any merit in this contention. The prosecution’s duty lies in calling such witnesses as they would require to establish their case against an accused person. See Buba v. State (1992) 1 NWLR (Pt.215) 1; Saidu v. The State (1982) 4 SC 41; (1982) 13 N.S.C.C. 70; Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509.
The question is, as always, what this witness would say that would affect the proof or not of the guilt of the Appellant. And that question remains to be answered in the argument set forth for the Appellant. Therefore in my respectful view, the contention that the prosecution failed to call a particular witness, namely the grandmother of PW 1, does not avail the Appellant. It is also argued for the Appellant in the Appellant’s Brief that the lower court was wrong to have upheld the judgment of the trial court as it is the view of learned counsel for the Appellant that the trial court failed to evaluate the evidence led at the trial.
After a careful consideration of the evidence and the arguments of counsel, I am of the view that learned counsel for the Appellant must have misunderstood the purport of the case against the Appellant. With due respect to learned counsel for the Appellant, I must reject his contention. The trial Court and the lower court duly considered and evaluated all the evidence relevant to the case as it affected the guilt or otherwise of the Appellant.
In the result though the Appellant was convicted upon circumstantial evidence, it is, nevertheless, proof beyond reasonable doubt of the guilt of the Appellant.
For these reasons, I dismissed the Appeal.
SC.200/2000