Godwin Igabele V The State (2006)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division sitting at Enugu, delivered on the 18th day of March, 2004 wherein the Court of Appeal (hereinafter referred to as the court below) affirmed the conviction and sentence to death passed on the appellant as earlier pronounced by the trial court – the High Court, Enugu.
The relevant facts of this case may be succinctly stated as follows:
The appellant was on 7th day of February, 1990 arraigned before the Enugu High Court in a charge of murder of one Gerald Chikezie Ozo Okeke pursuant to the provisions of section 319(1) Criminal Code Cap.30 Vol. 11 Laws of Eastern Nigeria, 1963 applicable to Enugu State.
The appellant pleaded not guilty to the charge. The prosecution thereafter called nine witnesses in proof of its case, the summary of which was that the appellant, a professional motor driver was in the employ of PW3 (Mr. Orakwulu) while the deceased who was then living with PW3, as a motor conductor also in the latter’s employ, were sent on a journey together by him.
That the appellant and the deceased, both employees of PW3, were the driver and conductor respectively of lorry registration number AN 8850 B. That on 13/1/85 they travelled out in the said lorry but did not return on that day as usual; that rather, another driver in the employ of PW3 by name Patrick Mbang (PW4), drove back the lorry on 17/1/85 with PW3. That appellant informed PW4 that he (appellant) would go to eat at a place near Spera in Deo Petrol Filling Station, Abakaliki and thereafter visit his brother in town on 18/1/85, with nothing being heard about the deceased. This then led PW3 to lodge a report of the missing person at Abakaliki Police Station on 18/1/85, subsequent to which the appellant was on 29/3/85 arrested in his hometown Nimo.
PW2 (Mrs Roseline Enekwechi) later saw the corpse of the deceased somewhere along Abakaliki – Ogoja Road and identified it to PW 1 on 11/7/85 before it was buried at Enugu cemetery.
PW6 then described how he saw and removed a corpse lying at the River bank on 27/2/85 at Abakpa Nike, which he buried the same day at Enugu cemetery. A body was thereafter exhumed at the Enugu cemetery on 11/7/85 and the same was identified by PW2 (mother of the deceased) to PW1 (medical officer) who performed the post mortem examination.
At the close of the case for the prosecution, the appellant made and relied solely on circumstantial evidence. The trial court however found the appellant guilty of murder and sentenced him to death by hanging. Wherefore, he (appellant) appealed to the court below which in its considered judgment affirmed the judgment of the trial court in its entirety following which he appealed to this apex court on two grounds of appeal as appearing in the notice of appeal at pages 183 – 184 of the record of appeal.
The lone issue formulated on behalf of the appellant for our consideration reads:
(i) In view of the evidence as contained in the record of appeal, was the Court of Appeal justified in holding that the charge of murder against the appellant was proved beyond reasonable doubt
The lone issue submitted as arising on behalf of the respondent on the other hand goes thus:
Whether the Court of Appeal was right in confirming the conviction of the appellant for murder having regard to the evidence before the court.
As there is hardly much to choose between the lone issue filed by either party to this case, I prefer the respondent’s as being enough to dispose of this appeal which I duly adopt as follows:
ARGUMENT
In arguing the lone issue, it is clear that the duty on the prosecution in a murder charge is to establish.
(i) That the deceased died.
(ii) The act or omission of the accused which caused the death of the deceased was unlawful and
(iii) That act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was its probable consequence.
See Alewo Abogede v. State (1996) 5 NWLR (Pt. 448) 270, a case of murder whereupon the affirmation of his conviction and sentence to death by the Court of Appeal, the appellant contended inter alia whether the prosecution proved its case beyond reasonable doubt as to warrant the confirmation of the conviction and sentence passed on him. It was held that the prosecution met the above legal requirements through credible evidence accepted by the courts. See also Edwin Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 198 C D, where this court held:
These three conditions must co – exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift. See also Obade v. State (1991) 6 NWLR (Pt. 198) 435 at 456.
Although the above case is a Court of Appeal decision, it so reiterates the principles exemplified in the case in hand that I hereby adopt it.
That the above three legal requirements are neither absent nor tainted with doubt, has been settled by this court in a number of cases particularly in Felix Nwosu v. Slate (1986) 4 NWLR (pt. 35) 348 at 359 per Aniagolu, JSC who held inter alia –
a judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and moreso in criminal cases, and particularly more so in capital offences.
See also Daniels v. The State (1991) 8 NWLR (Pt. 212) 715 at 732 where it was held that the appellant is now a condemned prisoner and a charge of murder is established when the prosecution proves the following beyond reasonable doubt.
(a) that the deceased has died;
(b) that the death of the deceased has resulted from the act of the appellant; and
(c) that act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequences.
See Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 at 198, where the Court of Appeal reiterated the law thus:
These three conditions must co – exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift. See Obade v. The State (1991) 6 NWLR (pt. 198) 435 at 456. (Italics is for emphasis)
From the foregoing background, I shall now proceed to ascertain how the prosecution has striven to prove the three ingredients of the charge of murder leading to the guilt of the appellant beyond reasonable doubt as to wan-ant his conviction and sentence to death:
(A) That the deceased died.
From the trial court record there is no evidence that the deceased was seen alive since he left PW3’s house on 13/1/85; hence there is a strong presumption that he was dead:
Be that as it may, PW1 endeavoured to clarify whether the body exhumed on 1717/85 (an interval of six months) from the Enugu Cemetry and post mortem examination performed on it by him (PW1) after it had been identified to him by PW2, was the body of the deceased Chikezie Ozo Okeke or the body of another person. He (PW1) stated at page 32 from line 19 to line 28 – 30 of the record as follows:
From the state of decomposition it seems that many events had supervened between the date of death and that of the post mortem examination.
At page 33, lines 5 – 9 of the record PW1 stated in his report as follows:
(i) I found that certain of the sub – tissues were not easily identifiable
(ii) The body was hardly recognisable, going by the physiognomy;
(iii) I am definite that a person falling from a height of a moving 911 lorry will sustain fracture – injury.
From the foregoing, I agree with the submission of the prosecution that it met the legal requirements of proof of murder through credible evidence acceptable by the courts as proof beyond reasonable doubt.
On the corpse identified by PW2, Mrs. Roseline Enekwechi to PW1 on 11/7/85, the submission for the defence was that the body identified to PW1 by PW2 and the one found along Ogojai Abakaliki road were different corpses. This, in my view, is very erroneous as PW2 being the mother of the deceased should be in no doubt as to the physical features and external morphology of her son. After all, she gave a vivid description of the dress her son was used to wearing and which he actually wore during the ill – fated trip proximate to the time of his death. The deceased also had a broken upper tooth from his childhood following a fall. Under cross – examination she stated poignantly the face was not easily recognizable in his state of decomposition but I easily recognised the body with aid of that broken upper tooth and the dress he wore. The deceased also had tribal marks at the cheeks. The tribal marks were still on the cheeks when I saw the corpse. See page 34, line 19 – 23 of the record.
The evidence of PW2 was corroborated in this regard by the testimony of PW3, the master to the deceased who in his evidence-in-chief stated inter alia thus:
Upon examination, I recognized the body as that of my conductor late Ozo Okeke. 1 recognized the corpse from the dress which the deceased wore on the day he left home last 13/1/85. The deceased lived with me and he had left with the accused on 13/1/85 wearing gins (sic) and black flowing shirt or polo. I also recognised the body from the mark on the deceased’s cheek; he also had a broken tooth.
Under cross-examination PW3 had restated his position when he said:
I deny the suggestion that the body exhumed was not that of my late conductor Gerald Ozo Chikezie Okeke. It was the body and I recognised it very well.
From the foregoing facts and circumstances there could be no doubt that the autopsy was performed on the body of Ozo Okeke. See Ndike v. The State (1994) 9 SCNJ 46 at 50; (1994) 8 NWLR (Pt.360) 33.
In this respect, I am left in no doubt that there could be any better identification than that made by the PW2 and PW3, consequently, I hold that the court below was therefore right in affirming the identification as valid and proper in the circumstance. It is therefore, in my view, of no moment whether the PW2 saw the same corpse or another along Abakaliki – Ogoja Road with or without the PW3. Seeing the same or another corpse by the PW2 would appear rather speculative and mere inaccuracy which goes to no issue.
This court has decided that it is trite law that court should not speculate on evidence but decide on the evidence presented before it. See Okoko v. State (1964) 1 All NLR 423 at 428. The court is only entitled to rely on the evidence before it and not on speculations. See Seismograph Service (Nigeria) Ltd. v. Ogbeni (1976) 4 SC at 101.
The apparent conflict in the testimony of PW2 and PW3 as to whether they jointly embarked on the search for and or saw any other corpse along Abakaliki/Ogoja Road does not affect the justice of the case. PW3 was very emphatic that he did not see any other corpse while PW2 asserted she saw one along the road with PW3. That was a mere inaccuracy in the narration of the event as to how the search for the deceased was conducted by the two interested persons. 1therefore hold that whether or not the PW2 saw the same or another corpse on the road, cannot derogate from the proven or established fact that the exhumed and properly identified corpse to the PW 1 was that of the deceased and none other.
The minor inaccuracy by the PW2 in her momentary confused situation while testifying was in my view of no moment as it does not go to the root of the charge of murder. See Ehot v. State (1993) 5 SCNJ 65 at page 80; (1993) 4 NWLR (Pt. 290) 644 where this court held that minor inaccuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb a judgment. Both the trial court and the court below felt that the suggestion of a different corpse from the one exhumed was so irrelevant and inconsequential, hence they glossed over same. I therefore have no option but to uphold both convictions of the two courts below – their decisions being those on concurrent findings of facts – devoid of any contradictions in the testimony of the prosecution witnesses. Indeed for any conflict or contradition to be fatal to the prosecution’s case, it must be substantial and fundamental to the main issue. See Ndike v. State (supra) at page 54 per Ogwuegbu, J.S.C.; Onubogu v. State (1974) 9 SC 1 at 20 and Okeke v. State (1995) 4 NWLR (Pt.392) 676 at 703.
In the Ndike case, the complaint was that whilst PW1 testified that he met the deceased lying on the ground already dead other prosecution witnesses stated that the deceased was taken to the hospital. The doctor in that case (PW2) who admitted the deceased, later performed autopsy without any further formal identification of the corpse.
The court overlooked the inconsistencies and held that formal admission of the deceased by the doctor in the presence of witnesses amounted to sufficient identification of the deceased. See Ndike’s case (supra) at pages 54 – 56.
In the case in hand, the appellant consistently attacked his conviction for murder on the ground that there was no eye-witness to the event leading to the murder of the deceased. I hold that it is not a condition or legal imperative that there must be an eye- witness before a murder charge could be proved beyond reasonable doubt.
Proof of the commission of the offence may proceed on circumstantial evidence. See Lori & Anor v. State (1980) 811 S.C. 81.
And as I had occasion to show in Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 683, the guilt of an accused may be proved by (a) confessional statement (b) circumstantial evidence or (c) evidence of eye-witnesses,
On the further attack that the conviction was based on the fact that the appellant could not give a satisfactory explanation of the where about of the deceased, I hold the view that the decision by the trial court and its subsequent affirmation by the court below was proper. This court went on to hold in Emeka v. State (supra) that where the accused person was the last person to be seen in the deceased’s company and circumstantial evidence is not only overwhelming but leads to no other conclusion, it leaves no room for acquittal. In the instant case the courts below were, in my view, right in relying on findings of fact that the appellant was guilty as charged. See Obosi v. State (1965) NMLR 119 indeed, whereas in the instant case evidence points irresistibly to the guilt of the accused, it can ground a conviction. See Ukorah v. State (1977) 4 SC 167; Daniels v. State (supra).
In his evidence-in-chief PW3 testified inter alia on the said 13/1/85 the accused took the lorry and departed my premises for the day’s run of business. He left with the aforesaid Ozo Okeke Chikezie who served as conductor on the lorry AN 8850 B; incidentally the accused unlike on other occasions, did not run (sic) that day 13/1/85. The said Ozo Chikezie Okeke did not return either. (Italics is mine). See page 37, lines 25 – 30 of the record.
The deceased therefore left with the appellant but was never seen alive again until his body was exhumed at the cemetery in a state of decomposition or mutilation. There is no other rational conclusion one could arrive at other than that the appellant murdered him. The possibility of a fall from the moving lorry having been discounted or falsified by medical evidence, proof of innocence no longer avails the appellant as a defence or cover.
Moreover, it was the defence that conjured or elicited the fact of ritual murder from the PW9 under cross-examination. That same defence was at liberty to probe further details to disprove the ritual murder. PW1 testified as to the cause of death thus:
And in my opinion, the cause of death was due to shock from vital organs of the body. The organs were the tongue and the external genital organs.
The deduction that the deceased was a victim of ritual murder is therefore supported by evidence. In this wise, I agree with the prosecution that the police officer (IPO) who testified as PW9 whose evidence was earlier referred to by me in this judgment, was not bound to disclose his source of information. See the purport of section 166 of the Evidence Act which states that No magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence.
In conclusion, I hold that this appeal ought to fail as unmeritorious and it stands dismissed because:
(i) a prima facie case of murder was established against the appellant as all the ingredients of murder had been proven; the cause of death had been established through circumstantial evidence. See Uguru v. State (2002) 4 SCNJ 282 at 293; (2002) 9 NWLR (pt. 771) 90.
(ii) The appellant was last seen alive with the deceased and as the identification of the deceased was proper, his conviction ought therefore to be upheld vide Emeka v. State (supra) especially ratio 3.
(iii) Concurrent findings of the two courts below should be respected and affirmed since being a judgment supported by evidence and also not being perverse had not occasioned any miscarriage of justice. It therefore ought to be upheld. See Osayeme v. State (1966) NMLR 399 and Sanyaolu v. State ( 1976) 6 S.C 37.
(iv) Besides, proof beyond reasonable doubt as has been shown in this case, is not synonymous with proof beyond any shadow of doubt but ought to be proof beyond reasonable doubt and it is accordingly upheld by me. See Oteki v. A.-G., Bendel State (1986) 2 NWLR (Pt. 24) 648.
I accordingly dismiss this appeal and affirm the decisions of the two courts below.
SC.233/2004