Moses Jua V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is an appeal against the judgment of the Court of Appeal which affirmed the judgment of the trial court, which convicted the appellant for culpable homicide punishable with death. The appellant was charged along with three other persons. Two of them died in the course of the trial

The prosecution called six witnesses. The case is that a motor cycle was stolen. Appellant was the suspect. Police Constable Rotimi Jeremiah took the appellant to Ipee to produce the particulars of the motor cycle. That was the last time Rotimi Jeremiah was seen alive. In the course of investigation, the appellant made both oral and written confession and statements that he, together with the other accused persons, killed the deceased. The confessions were made at Ede Police Station.

The appellant was arrested. He was led to the scene of crime by the police. The clothes last worn by the deceased, four teeth and some strands were recovered at the scene. Appellant’s efforts to escape from arrest were not successful.

At the trial, appellant retracted his confessional statement. He denied killing Rotimi Jeremiah. The learned trial judge did not believe his evidence. He was therefore convicted and sentenced to death. His appeal to the Court of Appeal was dismissed. This is a further appeal to this court.

Briefs were written and exchanged. Counsel for the appellant formulated the following issue for determination.

“whether the prosecution proved the case against the Appellant beyond reasonable doubt as required by section 138 of the Evidence Act.”

Counsel for the Respondent has formulated the following issue for determination.

“Whether the prosecution has not proved its case beyond reasonable doubt in the circumstances of this case”

Both issue dovetail on proof. That is the common denominator. The apparent or seeming different is that while the issue of the appellant is couched in a language of neutrality, so to say, that of the respondent is couched in language of negativity. I do not see any substantial difference when both are taken in the light of the facts of the case, it is like a dozen and twelve. They come to the same thing at the end of the day.

Learned counsel for the appellant Mr. Ojutalayo submitted that as none of the prosecution witnesses was an eye witness, circumstantial evidence to be relied upon must be cogent and compelling as to lead to only one conclusion and it is to the guilt of the accused person. He referred to the case of State v. Usman (2005) MLR (Pt.906) 80 at 124. He submitted that the concurrent findings of the two courts are perverse and urged the court not to reply on them. He dealt specifically with evidence of PW4 and PW.6 at pages 8 and 9 of the Brief.

Learned counsel submitted that by virtue of section 138 of the Evidence Act, the prosecution has a duty to prove the case against the appellant beyond reasonable doubt and that the appellant has not duty to prove his innocence as he is presumed innocent until proved guilty. He contended that in order to convict the appellant of offence of culpable homicide punishable with death, the prosecution must prove the following ingredients beyond reasonable doubt.

(a) That the deceased has died.

(b) That the death was caused by the Appellant.