Joseph Lori & Anor Vs The State (1980)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

The appellants and 1 other were on 27th February, 1977 convicted and sentenced to death by Gbemudu, J., having been found guilty of murder (of one Sunday Egerega) punishable under Section 257 (1) of the Criminal Code Cap.. 28 Vol. 1, Laws of the former Western State of Nigeria 1959, applicable in the Bendel State of Nigeria. They all appealed to the Federal Court of Appeal, Benin Judicial Division which in a reserved judgment delivered by Ete, JCA., on 10. 5. 79, dismissed the appeal in respect of the appellants but allowed the appeal of the 3rd accused. Whereupon the appellants appealed to this court.

On 4th September, 1980 it was brought to the notice of this court that the 1st appellant had committed suicide while in custody. His appeal, having been accordingly withdrawn by learned counsel representing him, was dismissed. After hearing argument, we allowed the appeal of the 2nd appellant and discharged and acquitted him. We indicated that we would deliver a reasoned judgment today. We now give our reasons for our judgment in respect of the appeal of the 2nd appellant.

My Lords, the facts of this case are briefly as follows: The deceased, Sunday Egerega, was a taxi driver and plied his taxi, registration No. MWX. 1188, for hire at Warri. There was a standing instruction from his brother Thompson Egerega, P.W.2, that he should come home daily at 8 p.m. When he failed to return home till quite late on 8.2.76, a search party for him was arranged. Later, on information received, Thompson Egerega, P. W. 2, proceeded to Agbor where he found the wreckage of taxi cab registration number MWX. 1188 which apparently had been involved in an accident. On enquiry for the driver of the taxi, he was informed that he (the driver) was injured and had been taken to Agbor Police Station and then to Benin Specialist Hospital where he met the 1st appellant in this appeal. 1st appellant was admitted into hospital under an assumed name, Gabriel Cauley.

Bewildered that this was not his brother, Sunday, Thompson Egerega reported back to the police who immediately placed a guard at the hospital bedside of the 1st appellant. On his own admission, 2nd appellant was a passenger in the taxi cab MWX.1188 at the time it was involved in the accident at Agbor. As would appear later on in this judgment, he claimed that the vehicle was brought to him by 1st Appellant for purchase and that he was to pay for it at Onitsha. On 10.2.76, the decomposing body of an adult male was found in a farm in a village called Iwrekaka. The corpse was removed to Ughelli Police. On 11.2.76, Dr. S. N. Murphy, P.W.1, performed a post mortem examination on the said body. He found no external or internal injury on the body. Though he removed specimens of pieces of the liver, lungs and intestine and sent them to the Forensic Laboratory in Lagos, he never received back any report on them.

He was unable to state the cause of death. The body was then buried. On 22.4.76 the body was exhumed and re-examined by the same doctor. It was identified to him as the body of Sunday Egerega by Thompson Egerega who claimed to have recognised his brother’s skeleton because of his open teeth and the dress he (Sunday) wore when he was last seen on 8.2.76. Now the doctor found that asphyxia was the possible cause of death. On the 23rd March, 1976 the 1st appellant was arrested and charged with murder and he made 4 statements to the police. It was through these statements that the 2nd Appellant was arrested and charged with the murder of Sunday Egerega.

Although we did not find it necessary to call on the learned counsel for the 2nd appellant. Mr. Igbokwe, it is pertinent to set down 2nd appellant’s additional grounds of appeal to this court. They were as follows:-

“(3) The Court of Appeal erred in law to have affirmed the conviction of the 2nd appellant of murder based entirely on circumstantial evidence when the evidence adduced by the prosecution was not cogent and compelling and certainly did not lead to the irresistible conclusion that the 2nd appellant and/ or in collaboration with others killed Sunday Egeraga.

(4) The Court of Appeal erred in law and misdirected itself in holding that the mere presence of the 2nd accused in the taxi registration number MWX.1188 on 8.2.76 substantially linked him with the murder of Sunday Egerega.

(5) The Court of Appeal failed to consider or adequately consider the defence of the 2nd appellant as contained in his statement to the police Exhibit 7.

(6) The judgment of the Court of Appeal was unwarranted, unreasonable and cannot be supported having regard to the evidence.”

It is common ground that there is no direct evidence connecting the 2nd appellant with the death of the deceased. The evidence adduced was circumstantial. Both the learned trial Judge and the learned Justices of the Federal Court of Appeal proceeded on that basis and at the end, erroneously in my view, decided that the evidence available was positive and conclusive enough to support the conviction of the 2nd appellant. The learned Justices of the Federal Court of Appeal, commenting on the findings of the learned trial Judge, stated in their judgment:

“…..The learned judge in his judgment said that the evidence adduced against the appellants is mainly circumstantial. We agree that it is. Sunday Egerega went out in the early morning of 8.2.76 to ply his taxi-cab, the registration number of which was MWX. 1188 for hire at Warri. On the same day the vehicle was found near Agbor, some 79 kilometres or so away from Benin City, resting on its roof having been involved in an accident ….the 1st appellant was its driver at the time of the accident ….However the 2nd appellant too made a statement Exhibit 7 in which he in turn indirectly implicated the 1st and 3rd appellants with the stealing of the vehicle and the killing of its driver. He admitted taking part in the attempted disposal of the vehicle at Onitsha……..”

It is conceded that circumstantial evidence is very often the best evidence. It is said to be 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.