Joseph Lori & Anor Vs The State (1980) LLJR-SC

Joseph Lori & Anor Vs The State (1980)

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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 His appeal, having been accordingly withdrawn by learned counsel representing him, was dismissed.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.

R. v. Taylor and 2 ors. 21 Cr. App. R. 20. See also Rex v. Chung Y1 Miao 1928, Shortland Re. Cited in Wills on circumstantial Evidence, Seventh Edition (1936) p. 324 per Humphreys, J. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Dealing with the nature of circumstantial evidence in a case from the Supreme Court of the former British Guyana, Tepper v. queen (1952) AC 480 at 489 PC.

Lord Normand said:-

“Circumstantial evidence may sometimes be conclusive, 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 sacks’ 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” (Underlining mine)

In McGreevy v DPP (1973) 1 All ER 503 at 509 (a case in which the prosecution relied on circumstantial evidence but which was concerned with the proper direction to be given by the judge to the jury when the evidence is circumstantial) Lord Morris of Borth-Y Gest, delivering the judgment of the House of Lords, said of circumstantial evidence: (quoting with approval a passage from Taylor on Evidence 11th Edition (1950) Vol. 1 p.74)

“They (the jury) must decide not whether these facts are consistent with the prisoner’s guilt but whether they are inconsistent with any other rational conclusion. For it is only on this last hypothesis that they can safely convict the accused. The circumstances must be such as to produce moral certainty, to the exclusion of every reasonable doubt. Moral certainty and the absence of reasonable doubt are in truth one and the same thing”

This court has on several occasions stated the law in similar terms. See Igboji Abieke and Anor. v The State (1975) 9-11 S.C. 97 at 104; Obalum Anekwe v the State (1976) 10 S.C. 255 at 264; Paulinus Udedibia and 2 ors. v. the state (1976) 11 S.C. 133 at 139; and Valentine Adie v. The State (1980) 1-2 S.C. 116 at 122. Perhaps the most forceful statement on this is to be found in Stephen Ukorah v. The State (1977) 4 S.C. 167 at 174, 176-177. Idigbe, JSC., quoting with approval a passage from Emperor v Browning 39 I.C. 323, stated:

“In a case in which there is no direct evidence against the prisoner but only the kind of evidence that is called circumstantial, you have a two fold task; you must first make up your minds as to what portions of the circumstantial evidence have been established; and then when you have that quite clear, you must ask yourselves is this sufficient proof It is not sufficient to say “If the accused is not the murderer, I know of no one who is. There is some evidence against him and none against any one else. Therefore I will find him guilty.” Such a line of reasoning as this is unsound, for experience shows that crimes are often committed by persons unknown who have succeeded in wholly covering their tracks………..”

What then, my lords, were the surrounding circumstances from which both the learned trial Judge and the learned Justices of the Federal Court of Appeal came to their conclusion that the only inference capable of being drawn was the guilt of the 2nd appellant (and of course the 1st appellant)

First, must be the fact, as indicated above, that on the very day, 8.2.76, on which the deceased Sunday Egerega was found missing 2nd appellant (in company of 1st appellant) was found at Agbor in the deceased’s taxi cab. It is also pertinent to mention that Dr. S. N. Murphy, P. W. 1 had put time of death of the deceased at about 48 hours prior to 10.2.76. It seems quite clear that these circumstances weighed heavily on the mind of the learned trial Judge as can be seen from his findings which the Federal Court of Appeal approved. In his judgment, the learned trial Judge on this point had concluded:

“I am convinced that the 1st and 2nd accused are sufficiently linked with the taxi Datsun Car No. MWX. 1188 and the death of the deceased. I do not attach any credence to their statements……………..From the facts and circumstances of this case, I hold that the persons who seized the Datsun Car No. MWX. 1188 driven by Sunday Egerega on 8.2.76 within a few hours after he left home for his taxi business were the persons who robbed him of the car before or after killing him. In Exhibit 3 the 1st accused inter alia said, “they only told (meaning 2nd and 3rd accused) that they got the vehicle from a driver by seizing it from him.” The only inescapable conclusion is that the 1st, 2nd and 3rd accused persons robbed Sunday Egerega of the taxi car and killed him by whatever means after or before robbing him. The doctor said that the deceased could have died of asphyxia or poisoning. Each of the accused persons was in the stolen car when it somersaulted. The 1st accused confessed that he was the driver. See Exhibit 3. The 2nd accused said in his statement Exhibit 7 that he took the 1st accused to the hospital after the accident……….” (underlining mine)

On the available evidence, particularly his own statement, 2nd appellant (and the others) may have been in unlawful possession of the taxi car but there is nothing, in my view, that can lead from there to a finding with such degree of certainty that he (or in collaboration with others) killed the deceased. Section 148 of the Evidence Act, Cap.. 62, states as follows:

“..the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case and in particular the court may presume –

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession…….”

The presumption implicit in Section 148(a) of the Evidence Act may well apply but is it so certain that the vehicle if stolen was stolen from Sunday Egerega or that it was stolen at the time he was killed 1st appellant had in Exhibit 3 said that 2nd appellant (and the 3rd accused who was discharged) seized it from the deceased but this evidence is not admissible against the 2nd appellant.0n his part, 2nd appellant in Exhibit 7 said that on the morning of 8.2.76 1st appellant and a man named Michael brought the taxi car to him. Besides, his defence, as can be gleaned from Exhibit 7, is that he intended to purchase the car. The 1st appellant, he said had indicated that he would bring him a car for purchase and when he brought it on 8.2.76 they were all on their way to onitsha where he (2nd appellant) was to settle the price of the vehicle.

The doctrine of recent possession without anything more as a sufficient link of the appellant with the death of the deceased in a case depending on circumstantial evidence was rejected by the Federal Supreme Court. in Queen v. Donald Ororosokode (1960) 5 FSC 208. In that case, the deceased was also a taxi driver and took 2 passengers from Onitsha to Warri. The next day his body was found lying on the grass in the road to Jesse. He was brutally murdered and his car was missing. On the same morning as the deceased was found, 2 persons arranged for the registration of the stolen taxi car in the name of one of them who turned out to be the appellant. The taxi car was also taken to a painter who altered the colour from black to green. The Federal Supreme Court in discharging the appellant stated at p. 210.

“The evidence against the appellant on this charge of murder was circumstantial and consisted almost entirely of the evidence relating to the registration and painting of the vehicle……….”(underlining mine)

It is conceded of course that Ororosokode’s case is not on all fours with the instant case in which 2nd appellant was clearly a passenger and had a clear pecuniary interest in taxi cab MWX. 1188, but it seems to me to imply that there must be something more than the mere possession of the vehicle shortly after the suspected crime or even as in the instant case, being passengers in it, to link the accused with the murder of the deceased.

The second circumstance relied on by the lower courts is the statement of the 2nd appellant, Exhibit 7. I hereby set it down in full:

“I know Joseph Lori. He is my friend. I started to know him since 1973 when he had a case with Dauda Police Warri. When he was in cell I bail him out. I then ask him what can he give me. There he promise me that he will bring me some business cars. Since that time I never see him again. On the 6th February, 1976 when I came to Warri I visited Joseph Lori’s house at Okumagba and he was not in then I drop a note to him. The note which police show me is the one I drop for Joseph Lori as I did not see him in his house. I only met his wife. When he return he came to Effurum to see me. It was there he told me that he will bring car to me for buying on the 8th of February 1976. In the morning of 8th February, 1976 around 10 a.m. he came with a car together with one Michael his friend. It was there Joseph told me that is the business car he told (sic) is now ready. He ask me to enter the car and I enter. It was there we decided to take the car to Onitsha where I will settle him the price I will buy it. As three of us were going with the car when he got near Agbor we got accident, it was there I remove Joseph to hospital while Micheal who was with us in the car ran away. It was Michael who came to Joseph Lori. I later remove Joseph Lori from Agbor to Benin General Hospital. When I got to Benin, Joseph ask me to go and inform his wife at Warri about the accident we had on the road while going to Onitsha. After I inform Joseph Lori’s wife I go back to Onitsha. After some months police came to arrest me at Iyowo – Atani. After I have been arrested I was brought to warri when I was kept in the cell. I later escaped from the cell. I run back to Onitsha. After some weeks police came back to the Iyowo-Atani and arrest me and brought (me) back to Warri. When I got to Warri Police Station the policemen who were on duty the day I run away from cell started to beat me and wounded me on my head. I did not know where Joseph Lori and his friend Michael killed the driver of the motor. I did not follow them to kill the driver. I did not ask them to know the owner of the car before we started going to Onitsha”

The note referred to in the statement was tendered in the proceedings in the High Court as Exhibit 10 the use which both the learned trial Judge and the learned Justices of the Court of Appeal made of Exhibit 7 can be seen from passages from their judgment. Of it the learned trial Judge said:

“The above statements (of the 2nd accused) is evidence against the 2nd accused and not against the 1st and 3rd accused. It will be seen that the 1st accused put the whole seizure of the car on the 2nd and 3rd accused while the accused said that it was the 1st accused and the 3rd accused who brought the car to him to buy. Michael, the 3rd accused was always the common factor. I am convinced that the 1st and 2nd accused are sufficiently linked with the taxi Datsun Car No.MWX. 1188 and the death of the deceased ….what I said about circumstantial evidence in respect of the 1st accused equally apply in the case of the 2nd accused.”

The learned Justices of the Court of Appeal commented thus:

“In Exhibit 7 referred to by learned counsel the 2nd appellant admitted indirectly that the deceased was killed, though he denied taking part in the killing. In view of this statement which is reproduced above the three points raised by learned counsel above become merely academic. The dead body of Sunday Egerega was found and identified.”

The three points which the learned Justices of the Court of Appeal thus lightly waved off were learned counsel for the 2nd appellant’s submissions that the crime committed had 3 elements:

(a) there must be an unlawful act

(b) this unlawful act must cause some harm and

(c) the harm caused must result in the death of the victim.

He contended that while (a) might exist there was no evidence of (b) and (c).

In both the trial court and the Federal Court of Appeal, an inference of guilt of the 2nd appellant was drawn from the statement Exhibit 7. But there were possibilities that could be deduced from Exhibit 7 which possibilities surely wakened the inference of guilt. The statement of the 1st appellant Exhibit 3 linking the 2nd appellant with the seizure of the deceased’s taxi cab is not as stated above, evidence against the 2nd appellant. The 2nd appellant had said in Exhibit 7 that at 10. a.m on 8.2.76 1st appellant and Michael brought the car to him to buy. Is it not possible that if the car was indeed seized from Sunday Egerega that action had been completed before 1st appellant came to the 2nd appellant The 2nd appellant had claimed that 1st appellant promised to bring him a car for business and that was the car he brought on 8.2.76. He, 2nd appellant, was to pay for this vehicle at Onitsha. Where is the evidence excluding this as a possibility Neither the 1st appellant nor the 2nd appellant gave evidence on oath at the trial.

One matter to which both the learned trial Judge and the learned Justices of th Federal Court of Appeal failed to advert their minds is the failure of the prosecution to establish satisfactorily the cause of death of Sunday Egerega. The learned Justices of the Court of Appeal did refer to the possibility of proof of murder by circumstantial evidence where there is nobody (R v. Onufrejczyk (1955) 1 QB 388. But here there was a body. In a charge of murder the cause of death of the deceased must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged. See Rex v Samuel Abengowe 3 WACA 85; R v. Oledima 6 WACA 202. It is also settled law that the death of the victim must be caused by the act of the accused or put differently it must be shown that the deceased died as a result of the act of the accused. See Sunday Omonuju v. The State (1976) 5 S.C. 1; Frank Onyenankeya v. the State (1964) NMLR 34.

In the instant case, the medical evidence was given as indicated above by the Dr. S. N. Murphy, P. W. 1. In his evidence which I think I should set down in part, he stated as follows:-

“….I remember 11.2.76. On that day, Police Constable No. 2825 brought one body for post mortem. The body was brought to the mortuary on 10.2.76. The body had a brown pant and blue shirt. Shoes were on the legs. Putrefaction had already started. There were maggots all over the face. The body must have died 48 hours previous. I examined the body. On examination there was no external injury anywhere on the body. No evidence of fracture. There was no evidence of any internal injury. The stomach was empty. Specimens of pieces of liver, lung and intestines were sent to Forensic Laboratory Lagos. I could not give any definite cause of death………………………………..The body was exhumed and I examined the body. Part of the blue shirt and brown pant was found on the body with shoes on the leg. On examination, only the skeleton was found. All the muscles and internal organs were eaten up. No evidence of any fracture of the skull or fractured cervical spine or any of the lungs bones. Asphyxia was the possible cause of death” and under cross-examination P.W.1 further stated that “……the post mortem on 11.2.76 was thoroughly done. I examined all parts of the body including the mouth. I heard how Sunday met his death. On 22. 4. 76 I held that asphyxia was a possibility……As a result of the history of Sunday’s death I came to the conclusion I reached regarding asphyxia. I don’t know the cause of the death………………….Asphyxia is a possibility, poison is a possibility. If I did not know of the alleged history of the deceased’s death, it is difficult to surmise the cause of death” (Underlining mine).

It seems quite clear that the doctor did not know the cause of death of the deceased and that his later opinion was at best an enlightened guess based, as he himself admitted, on the history of the death of Sunday Egerega. There were no internal or external injuries, no fractures, the stomach was empty and no report was received in respect of pieces of organs sent to the Forensic Laboratory. It is conceded that medical evidence is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with. See Adamu Kumo v. The State (1968) NMLR 227 and Tonara Bakuri v. The State 1965 NMLR 163. But that is not the situation in the instant case. A dead body had been recovered in circumstances leading to a suspicion of foul play and accused persons had been charged with the murder of the victim and the evidence which the prosecution relied on was circumstantial. A more useful medical evidence would not only have unequivocally established the cause of death but may have provided the necessary nexus between the death of the victim and the act of accused (i.e. 2nd appellant). Worse still, it raised several possibilities and questions which were never conclusively excluded or answered. This is particularly so in relation to the finding that death may have been due to poisoning. What was the nature of the poison” Who administered it Could it have been self induced As was suggested in the course of the proceedings in the trial court, is it not possible that the deceased abandoned the car and took poison for having committed a moral atrocity for which he wanted no one to know In the absence of any unequivocal finding about the cause of death, it is not possible that the deceased went into the bush to ease himself and had a heart attack There is nothing in the medical evidence from which any nexus can be forged between the death of the deceased and the act of the 2nd appellant. The house of the 2nd accused was searched and no poison of any sort was found as to suggest that he may have administered one to the deceased. He was never in the company of the deceased nor did anyone see him in the vicinity of the village in which the body of the deceased was recovered. His case is that the taxi cab MWX.1188 was brought to him by 1st appellant and Michael. There is therefore no evidence whatsoever that the 2nd appellant or in collaboration with anyone did any act that led to the death of Sunday Egerega.

The effect of these unanswered questions and numerous possibilities is to weaken the circumstantial evidence on which both the learned trial Judge and the learned Justices of the Federal Court of Appeal based their decisions. The evidence is not compelling and does not lead to the irresistible conclusion that the 2nd appellant or in collaboration with other persons, murdered Sunday Egerega. It has not reached the standard necessary to support a conviction as discussed earlier in this judgment. See Igboji Abieke & Anor. v. The State, supra. Nor can it assist the prosecution in discharging the burden of proof which rests on it throughout which is proof of the guilt of the 2nd appellant beyond reasonable doubt. The basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond all reasonable doubt. Proof beyond reasonable doubt as Denning , J., (as he then was) stated in Miller v. Minister of Pensions (1947) 2 All ER 372, 373:

“does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”

The case against the 2nd appellant has not been so proved. It was for these reasons that we were satisfied that the conviction of the 2nd appellant could not stand. His appeal was accordingly allowed. The judgment of the federal Court of Appeal dated 10.5.79 was set aside and 2nd appellant was discharged and acquitted.

M. BELLO, J.S.C.: I have read the Reasons for Judgment just delivered by my learned brother, Nnamani, JSC., and I entirely agree.

A.O. OBASEKI, J.S.C.: My Lords, I have had the advantage of reading in draft the Reasons for judgment just delivered by my learned brother, Nnamani, JSC., in respect of the appeal against conviction for murder lodged by Kenneth Ibenye, the 2nd appellant which we allowed in this court on the 4th day of September, 1980. I agree with them. It was for those reasons set out with profound clarity that I allowed the appeal and ordered that the conviction and sentence passed on the appellant by the High Court, Warri and affirmed by the Federal Court of Appeal be quashed and a verdict of acquittal entered.

K. ESO, J.S.C.: I have had the privilege of reading in draft the judgment just read by my learned brother, my Lord Nnamani, JSC., and I agree with the reasons he has given for this court in allowing the appeal of the appellant on 4th September, 1980.

A. N. ANIAGOLU, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my Lord and learned brother, Nnamani, JSC., and I entirely agree with his reasoning and conclusion. There is nothing which I can usefully add to the said judgment.

As I had indicated on 4th September, 1980, in my judgment brevi manu at the conclusion of the hearing of the appeal, the appellant’s appeal deserves to succeed. I am still of that view.

Other Citation: (1980) LCN/1091(SC)

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