Nathaniel Mbenu & Anor V. The State (1988) LLJR-SC

Nathaniel Mbenu & Anor V. The State (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In Suit No. HCR/27C/82 in the Orlu Judicial Division of the High Court of Imo State, the appellants were charged with the following offence –

“STATEMENT OF OFFENCE

Murder contrary to Section 319 of the Criminal Code

PARTICULARS OF OFFENCE

Nathaniel Mbenu and Daniel Nwokem on or about the 8th day of July, 1981 at Abajah in the Nkwerre/lsu Local Government Area in the Orlu Judicial Division, murdered one Camillus Abazie.”

At the trial before Jonah Johnson, J. 6 witnesses gave evidence for the prosecution, while the two accused persons gave evidence on their own behalf and called 5 witnesses. After evaluating all the evidence before him, the learned trial Judge convicted the appellants and sentenced them to death. The appellants appealed to the Court of Appeal, Enugu Judicial Division which on 9th February, 1987 dismissed their appeal. The appellants have now appealed to this Court.

One original ground of appeal was filed, and by leave of this Court, one additional ground of appeal was also filed and argued. These original and additional grounds without the particulars are as follows:-

“1. That the learned Justices of the Court of Appeal erred in law where the case against the appellants depends wholly or substantially on the correctness of one or more identifications of the appellants which the defence alleged to be mistaken in not warning themselves both as Judges and Juries of the special need for caution before upholding the convictions of the appellants in reliance on the correctness of the identification or identifications of the trial Court contrary to the guidelines laid down in R v. Turnbull (1976) 3 All E.R. 549 and as approved by the Supreme Court in the case of Zekari Abudu v The Stale (1985) 1 N.W.L.R. 55, 61, 62.”

ADDITIONAL GROUND OF APPEAL

“1. That the learned Justices of the Court of Appeal erred in law in saying that they find themselves unable to reverse the decision of the learned trial Judge and therefore dismissed the appeal when the onus of proving the guilt of the appellants beyond reasonable doubt in law had not been attained by the prosecution.”

Both Chief Akinyemi and Mr. Amadi, Legal Adviser, learned counsel to the appellants and the respondent filed copious briefs of argument which I have found quite useful. In his own brief, Chief Akinyemi identified 3 issues as arising for determination. These, set down on page 1 of his brief are,

“1. Whether the Court of Appeal was right in upholding the conviction and sentence of the Appellants when the principle of law and procedure applicable to the contradictions and inconsistencies in the extra-judicial statements of P.W.2 and D.W.2 were not followed

2. If the answer to the 1st question is that the law and procedure had not been followed, then could it be said that the Court of Appeal was right in upholding the conviction and sentence of the Appellants on the remaining evidence which the Court of Appeal admitted were inconclusive and not cogent and not compelling
3. Having regard to the time of the night when the crime was alleged to have been committed, the weather condition, the evidence of P.W.2 who can be regarded as a tainted witness, the grudge, and the animosity she bore against the Appellants, failure of the P.W.2 to mention the names of the Appellants, faulty evidence of recognition, could it be said that the guilt of the Appellants had been proved beyond reasonable doubt as required by our law and would the Court of Appeal be right to uphold the conviction and sentence of the Appellants”

As it is clear that the appellants are not here complaining of any failure by the two lower courts to sustain any special defence in law raised on their behalf, but are rather complaining generally that the case against them was not proved beyond reasonable doubt, I think I should set down briefly the facts of this pathetic case. Indeed were it not for the tragic death of an innocent student of the Anambra State University of Technology, one would have said that the case contained all the elements of a titillating tragic-comedy- stories of love affairs, unrequited love, violence, armed robbery etc.

The facts as stated by the prosecution, and as the learned trial judge set them down in his judgment were as follows:-

On the morning of 8th July, 1981, at 2 a.m. armed men, including the accused, besieged the premises of Miss Beatrice Abazie who is the P.W.2, and in a swift raid shot dead one Camillus Abazie, the deceased, who was then an undergraduate of Anambra State University of Technology, Enugu, then on a visit to P.W.2 and in transit to his school. P.W.2 made an immediate report to the Police which led to the arrest of the two accused, while three others still remained at large. A post-mortem examination on the body of the deceased was later performed by a Dr. M. Izuka of Queen Elizabeth Hospital, Umuahia. One Aloysius Mgbemere P.W.5 was one of those who responded when the P.W.2 raised alarm immediately after the incident. P.W.5 said he did not see the two accused persons among the crowd of sympathizers who came that very moment to console the P.W.2. He however saw the mother of the 1st accused. The landlord of P.W.2, P.W.3, gave evidence in which he denied the suggestion that the invasion of his house was directed against his family as a reprisal for the insult by his (P. W.3’s) family to the Osu Mbano family. P.W.3 admitted, that there is an ‘olilu’ meaning (a trench) behind the compound deep enough to conceal a human being up to the head from detection. He also gave evidence about the quarrel between the 2nd accused and the P.W.2, who are teachers in the same school, and his unsuccessful efforts to resolve the dispute. P.W. 3 further gave evidence of the action he took on hearing that the 1st accused chased the P.W.2 and wanted to beat her up. On questioning the 1st accused, P. W.3 alleged that he said he wanted to beat up P.W.2 because she told somebody she had locked him (1st accused) out of her house.

The Investigating Police Inspector, Phillip Akuemonkhai, gave evidence as P.W.6. On arrival at the scene this witness saw that the accused person gained access to the room where the deceased was sleeping by breaking the main door and two other doors occupied by the P.W.2, while the P.W.2 was in a different room. The P.W.6 also saw the shallow pit which he described as perpendicular to the passage of the building and in which P.W.2 allegedly hid herself and from where she saw and recognised the two accused persons as they were carrying the corpse of the deceased, after the gun shot, from the sleeping room to outside.

To test the veracity of the story of P. W.2, P.W.6 demonstrated by taking the positions of P.W.2 at the pit and so convinced himself that anybody in the pit could See out without being seen by somebody at the scene of crime. P.W.6 further saw the slab on the tank where the P.W.2 and the deceased sat conversing in the evening prior to the incident when the two accused persons rode past on a bicycle, and confirmed that it was possible for anybody sitting on the slab to see someone riding on a bicycle along the track road as stated by P. W.2. It was the P.W.6 who tendered the statements of the accused persons – Exhibits C and E for the 1st accused and for the 2nd accused. He gave evidence that nobody in the neighbourhood admitted seeing the two accused persons in the crowd of sympathisers soon after the crime. He said that from the position of the room in which the 1st accused alleged he slept, nobody not even the mother could know when the 1st accused was in or not, and the second accused never pleaded alibi. Surprisingly, the learned trial Judge did not include in his summary of the evidence the long testimony of P.W.2 who was the prosecution star witness. One can only summarise her testimony. According to her at the time of the incident she was a teacher at Abajah Nkwerre/Isu. She knew both accused persons. She first met the 1st accused at a Cultural play and later both of them became lovers. 1st accused visited her house regularly and they ate together. On 24th June, 1981, one Beatrice Ezimoko informed her that the 1st accused’s mother was complaining that she (P.W.2) was spoiling her son (1st accused). She therefore warned 1st accused not to come to her house again. 1st accused did not take kindly to this and on one occasion got her to open her door at 8 p.m. by assuming the voice of a lady.

Although she complained to people that the 1st accused was still coming to her house after the warning, he did not stop. She said that one day she was eating in her house with Beatrice Ezimako when the 1st accused came and warned her that if she should discontinue their friendship he would shoot her dead with a gun. Since after that threat, each time 1st accused saw her returning from church or market he would chase her into the bush with his bicycle. She reported all these to P.W.3 who summoned the mother of 1st accused, the brother, John Mbenu and 1st accused. Only 1st accused came.

After she had narrated to P.W.3 all that 1st accused had done to her, 1st accused kept mute. It was at this juncture that P.W.3 told 1st accused that he would report the matter to the Police and that if anything happened to her (P.W.2) he (1st accused) would be held responsible. She also testified that on 27/3/81 the 2nd accused, who was a teacher in the same school came to her house, and begged her for friendship but she refused. The 2nd accused persisted even offering to marry her and leave his wife with whom he had not gone through any wedding. Since she still refused, the 2nd accused from that day became unfriendly to her even refusing to respond to her greetings. The climax of this unfriendly attitude was an incident during their examination period. As she was distributing question papers, the 2nd accused came up to her and inquired about his son’s report card, calling her madam. When she replied that she will one day be madam, he slapped her. This was in the presence of the school children and other teachers. The matter was reported to the Police, and on the intervention of her landlord P.W.3, the matter was withdrawn from Police. She said that it was agreed that the 2nd accused should pay N48 being the cost of her damaged trinket and wrist watch but the 2nd accused never paid it. The 2nd accused later removed his son who was in the P.W.2’s class in the school.

The P.W.2 recounted how her brother the deceased, in transit to his University, came to her house. He met her in the school, and in the presence of the 2nd accused she gave him the key to her house. When she returned from school, she and her deceased brother went to the market to buy provisions. They met both the 1st and 2nd accused; the 1st accused was carrying the 2nd accused on a bicycle. They rode past. On their return from the market she and her deceased brother sat on a slab at the back of the house conversing. The 1st and 2nd accused again rode past on a bicycle. Both parties saw themselves.

That night at about 2 a.m. she heard noises from the room in which she was sleeping with her junior brother, Samuel Abazie. She heard a voice shouting “Open the door.” Apart from the voice “open the door” she heard, the voice of 1st accused saying “teacher take this way.” They were trying to force open the door leading to the room in which her deceased brother was sleeping. Eventually they smashed the landlord’s door and entered the parlour. Later they smashed her door but it was the door to the room in which the deceased was sleeping. Then the accused shot her brother dead in his sleep. She then said “On hearing the gun shot I carried my junior brother and through the backyard of the house to the kitchen. I later ran into a pit behind the kitchen in the bush. From the pit I saw them carrying my deceased brother outside naked. They were five persons that I saw, all males. Among the five persons I recognised too well 1st accused and the 2nd accused persons. The 2nd accused was wearing black singlet and black short knicker ………………

Also, 1st accused wore black singlet and black short knicker….. In my hiding, I saw the two accused flashing their torch round searching for me say (sic) “where is that Miss so that we finish her as we have done with this fellow who she used to brag about for us.”

From my hiding place to the scene where the accused men dumped the corpse is like from one end to the other of this Court hall – an estimated distance of about 45 feet………………. From my hiding, I went and rang the Church bell and from there I ran to the house of my landlord’s friends Julius and Kpaduwa shouting and crying that the two accused persons led armed robbers to my house and killed my brother. I went to one Mgbemere and reported the incident………………. At the Police Station I told the Police that armed robbers visited my house and shot my brother dead. On the following day Police came on investigation and I made my statement” I mean that I narrated the whole incident to the Police on the 8th July, 1981. It was long after that I made my statement to the C.I.D. at Owerri.

In his evidence before the Court the 1st accused admitted that P.W.2 was his girl friend for about 6 months. He denied going to P.W.2’s house to murder the deceased. He claimed that from the night of 7th July, 1981 to the morning of 8th July, 1981 he was seen in their house and was seen by his senior brother John Mbenu D.W.2. Contrary to what he said in his statement Exhibit C, he said he liked the break up of his relationship with P.W.2. The 2nd accused in his testimony in Court also denied any involvement in the commission of the offence. He said he was in his house sleeping with his wife. He neither heard the tolling of the Church bell nor the cry of P.W.2. It was the next day that he heard of the incident. The 2nd accused admitted the quarrel with the P. W.2 as to his son’s report card and that it was this that brought them into conflict. He denied ever making any love overtures to the P.W.2 or ever damaging her properties. The 1st D.W.1 said that 1st accused was among those who trooped out that night on hearing the alarm. The D.W.2, the 1st accused’s brother, was initially a prosecution witness and had said that the 1st accused was a problem child, and that the P.W.2 was shouting the names of the two accused persons on the night of the incident. He was treated as a hostile witness as in Court he retracted the contents of his statement Exhibit F. D.W.3, the mother of 1st accused testified that she came out with 1st accused as one of the sympathisers that night. D.W.4. the wife of 2nd accused, testified that throughout their 20 year marriage she always slept on the same bed with 2nd accused even when she was nursing a baby and that on the night of 7th/8th July 1981, the 2nd accused slept with her. D.W.5 who was called to tender the Police report of the incident at Amaigbo Police Station could not produce any report. He was also not the person on duty on the date that a report was made by P. W.2.

After reviewing all this evidence, the learned trial Judge set down 3 vital issues to be considered in the case. These were:

“(1) Whether the accused persons were mentioned early in the report made by P.W.2 – the complainant – so as to connect them with this offence.

(2) Whether the accused have sufficiently been identified with the commission of this crime, and

(3) The nature of evidence adduced by Prosecution in proof of this charge”

After examining the direct and circumstantial evidence against these issues, as well as referring to relevant legal authorities he came to the following conclusions:-

“What are the grounds for the inference that the accused participated in the killing of the deceased These are:-

(1) Failure by the accused persons to come out in such a small community; when the alarm bell was rung several times; coupled with the wailing and yelling of the P.W.2 – the complainant.

(2) Though there was no voice identification parade, the recognized voice (of the 1st accused) calling “Teacher, Teacher;” meaning 2nd accused, and directing the operations; yet the familiarity built up between the 1st accused and P.W.2 over the period of six months lends much credence to this piece of evidence.

(3) Human frailties not withstanding, it is a recognised fact that jealousy and animosity have been known to be a strong instrument in the commission of murder. Jealousy and animosity in this case did manifest themselves in the following ways:-

(a) Assaults and threats of assault on P.W.2 by the two accused persons one in which her (P.W.2’s) wrist watch and trinkets were damaged.

(b) Threats at various times by the 1st accused to kill P.W.2 before the incident.

(c) P.W.2 being the breadwinner of 1st accused, the sudden break in his source of living.

(d) Seeing the P.W.2 with the deceased created an impression in the minds of the accused that the deceased stood in their way as a rival.

(4) Evidence that when the 1st accused later emerged from an unknown place on the day of this incident he wore a sad look and refused to talk to anybody nor to speak on the incident.

(5) The mode of dressing by 1st accused and his admission of owning a tug and vest except the colour.”

And then finally on page 123 of the record the learned trial Judge said;

“I have carefully weighed the evidence on both sides and considered the defences set up by the accused with a view to ascertaining, in view of the gravity of the offence, punishment for this offence which involves human life in the event of a conviction, if a mistake has occasioned somewhere or somehow either as to the identity of the accused persons or that the report was maliciously made to incriminate them as a reprimand for any past wrong or if there is any extenuating circumstances that could work generally in favour of the accused or in the reduction of the offence and come to the conclusion that the two accused persons among others now at large were the real culprits who killed the victim in his sleep on the 8th July, 1981. It was a callous and premeditated murder, gruesome in the extreme. The random shots fired here and there in the vicinity by the accused persons after the killing of the deceased were designed merely to direct people’s attention. I disbelieve the accused and their witnesses and accept the evidence of the prosecution and that of their witnesses.”

In his lead judgment, Akpata, J.C.A. in the Court of Appeal, agreed that standing on their own the pieces of circumstantial evidence alluded to by the learned trial Judge would not ground a conviction, but that the said circumstantial evidence only served to support the direct evidence given by P.W.2. Akpata, J.C.A. also dealt at length with the issue of identification of the two accused persons – both visually by P.W.2, and 1st accused’s voice also by P.W.2. At the end of this review he thought the learned trial Judge was right in accepting and acting on that evidence. He said that the oral statement of P.W.2. to the Police led to the arrest of the 2nd accused person and that in view of the visual recognition of the appellants it was not necessary to conduct a voice identification. On the whole he agreed with the findings of the learned trial Judge, and felt unable to reverse his verdict. Abdullahi and Ogwuiare, JJ .C.A. concurred.

It is clear therefore that what we have here are concurrent findings of two Courts. It is trite that this Court will not interfere with such findings unless there has been a clear error in law or procedure leading to a miscarriage of justice. The Court of first instance which has the distinct opportunity of seeing the witnesses and observing their demeanour is obviously in a strong position in these matters. A Court of Appeal will only interfere if the evidence has not been properly evaluated, and as long as it is not evidence relating to credibility, it is in as good a position as the Court of first instance. See Frank Ebba v. Ogodo (1984) 1 S.C. N.L.R. 372.

But this is not a case in which one can just end with stating these undoubtedly well settled principles of law. There are a few matters to which learned Counsel to the appellants, Chief Akinyemi, drew the attention of this Court which have caused me considerable anxiety. One therefore has to examine this case thoroughly. Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt, though not beyond any shadow of doubt. (See Woolmington v. Director of Public Prosecutions (1935) A.C. 462 and Minister of Pensions and Miller (1947) 3 All E.R. 372, 374. See also Oteki v. Attorney-General, Bendel State (1986) 2 N.W.L.R. Pt. 24, 648.

Besides, although the learned trial Judge relied on both circumstantial and direct evidence to arrive at his conclusions, it is clear that it was the direct evidence of P.W.2 that weighed so heavily. P.W.2, is from every point of view a tainted witness – it was her brother Camillus who was killed in such gruesome circumstances; the 1st accused person was her ex-lover who seemed, on her evidence, to have resented the break up of their relationship and threatened to kill her; the 2nd accused was a co-teacher who made unsuccessful attempts to make love to her, and turned her enemy in school even withdrawing his son from her class. Was the P.W.2 out for vengeance

Did she in a vengeful fit mention the accused persons in a night in which it is admitted night marauders terrorised the whole of her neighbourhood and carried out acts of armed robbery, carting away property even from her own house Her testimony needs to be carefully scrutinised. That scrutiny is particularly called for, for her answers to a question at page 54 of the record were revealing. Counsel to the accused persons asked her,

“It is true that the C.I.D. Owerri asked you if you had quarrel with some people so as to know on whom to pin the responsibility”

She answered, “It is true.”

Further, in spite of what she had told P.W.6 while narrating the incident on 8th July, 1981, while giving evidence in Court on 24th March, 1983 she said,

“At the Police Station I told the Police that armed robbers visited my house and shot my brother dead”

No mention of accused persons. A tainted witness is a witness who, though not an accomplice, is a witness who may have a purpose of his or her own to serve. This Court has always held that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb. Indeed, trial Courts have been advised to be wary in convicting on the evidence of such witnesses without some corroboration. See State v. Dominic Okolo and Ors. (1974) 2 S.c. 73, at 82; Jimoh Ishola v. The State (1978) 9-10 S.C. 81; 100; Prater (1960) 44 C.A.R. 83 at 186; Frederick Valentine Rusell (1968) 44 C.A.R. 147, 150.

The requirement that a trial Judge should in such circumstances, warn himself as one would in the case of accomplices, is one dictated by prudence not by law. I may just mention that the learned trial Judge appears to have adverted to this, albeit very briefly, in the passage I set down above where he considered whether the report was made against the accused persons maliciously to settle old scores.

The first matter that caused me concern is the slip-shod manner in which the investigation of this matter (only in respect of the report at Amaigbo Police) was done. The prosecution in Court could also have been better handled. It became important to establish whether the P.W.2 mentioned the names of the accused persons at the earliest possible opportunity. Yet the Amaigbo Police to whom P.W.2 made her report on 8th July, 1981 was not called to give evidence. Worse still, the Police diary in which the report is supposed to have been entered could not be produced, nor was the prosecution able to produce the constable who took that report on 8th July, 1981.

However, the issue of whether the names of the accused persons were mentioned early enough was rightly resolved in favour of the prosecution. I am inclined to agree with the submission of the learned Legal Adviser, Mr. Amadi, on this point. P.W.6 in his testimony on this said as follows:-

“I started the investigation on the basis of P.W.2’s first oral statement that she (P.W.2) heard the voice of 1st accused at the time of the incident, commanding the rest members in the gang during the operation. She also said she saw them during the time of the incident.”

This conclusion does not however apply to the other issue which Chief Akinyemi referred this Court to – i.e. whether the P.W.2 mentioned the names of the accused persons that fateful morning when she was wailing about the brutal murder of her brother. Incidentally the only witness who stated that she indeed mentioned them was D.W.2 – John Mbenu, the elder brother of 1st accused. But this was in his statement to the Police Exhibit F which had to be tendered when he was treated as a hostile witness. Mr. Mbenu had retracted that evidence when he gave evidence in Court. It is settled that when an accused person makes a statement to Police and in his evidence in Court gives something contrary to it, such testimony is usually treated as unreliable and is therefore ignored. See Oladejo v. State (1987) 3 N.W.L.R. Pt.61, 419, 427. This principle applies to any other witness in a criminal trial. See also Onubogu v. The State (1974) 9 S.C. 1 and Enitan v. State (1986) 3 N.W.L.R. Pt 30 604. The learned trial judge was in serious error when he relied on this statement Exhibit F as one of the grounds for holding that the guilt of the accused persons had been established. Perhaps, I should also add that the learned trial Judge equally erroneously relied on the so-called statement of D.W.2 that the accused persons were not among the sympathisers who came out on the morning of 8th July, 1981. If this was all the evidence against the accused persons, my decision on this appeal would have been obvious. But it was not all as I shall show later.

I shall now deal with two other matters raised by Chief Akinyemi. The first is his contention that against the P.W.2’s evidence of identification of the accused persons, was her alleged statement that the armed robbers were masked in the night her brother was killed. With respect, this submission is totally misconceived. In P.W.2’s statement to the Police which appears on page 132 of the record, P.W.2 said as follows:-

“I had no difficulty in recognising Nathaniel Mbenu’s voice and I had no difficulty in recognising their faces. They were not masked when they invaded my house. I saw Nathaniel Mbenu and Daniel Nwokem and another person when they carried the corpse of my late brother outside with powerful torchlight.”

In the proof of evidence where the same statement appears i.e. at page 10 of the record, this is what appears,

“I had no difficulty in recognising Nathaniel Mbenu’s voice and I had no difficulty in recognising their faces. They were masked when they invaded my house………………………………”

I do not think that one needs to stretch ones imagination far to know that this was a typographical error. Masked there has no meaning when set against what appeared immediately before this.

But this takes me to the more important submission that P.W.2 could not have seen the accused persons as the night was dark and she claims she saw then by use of the powerful torchlight which the armed robbers flashed around. The P.W.2 it must be recollected was in a pit in which according to her only her head could be seen. I must say that I am not impressed with that part of the P.W.2’s evidence and I do not think that the High Court and the Court of Appeal ought to have accepted it. Sporadic flashes of torchlight, however powerful the torchlight may be, is in my view not sufficient to enable P.W.2 see the details she described that dark night. Although P.W.2 was fairly near the point of action, one is not told how long the operation took for that must determine how possible it would have been to see all that she saw via flashes of the torchlight.

The other mode of identification is in a different shade. P. W.2 distinctly recognised the voice of the 1st accused. Although no voice identification parade was taken, I think the two Courts were right in accepting the evidence of the P.W.2 on this point. I am grateful to the Court of Appeal for that passage in the judgment of Lord Widgery, C.J. in R. v. Turnbull (1976) 3 All E.R. 549 at 551 – 552. There the learned Chief Justice said as follows, and I think it most apposite in this case,

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications…………………….Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation At what distance In what light Was the observation impeded in any way as for example by passing traffic or a press of people How often If only occasionally, had he any special reason for remembering the accused How much time elapsed between the original observation and the subsequent identification to the police

To return to the instant case, can anyone doubt that the P.W.2 can recognise the 1st accused’s voice He was her boy-friend or indeed lover for 6 months. That seems to me sufficient.

Having dealt with some of the points raised by learned Counsel to the appellant, I shall now deal with the case against each of the appellants as found by the two Courts. One of the points I would wish to underline in this exercise is the view I hold that the cases of the two appellants ought to have been treated differently. Although there was no conflict in their cases, still a miscarriage of justice would have been obviated, having regard to the conclusion I shall make in this appeal, if the cases of the two accused persons had been handled by separate counsel.

Now to take the case of the 1st accused, it is clear that the learned trial Judge found against him based on a combination of the circumstantial and direct evidence in the case. The circumstantial evidence against him was quite strong but if it stood alone it would not have been enough to sustain the conviction.

The circumstantial evidence accepted by the learned trial Judge, most of which the 1st accused did not deny, included the fact that he was a former lover of P.W.2 and was more likely to know her residence intimately; that he was very bitter after P.W.2 had broken off their love affairs and warned him not to come to her house anymore; that he was in fact being sustained by P. W.2 and was desperate to have their friendship continue; that when the P.W.2 seemed adamant on ending their love affairs, he threatened to shoot her; that whenever he met her on the road he always chased her with his bicycle;

that on the night of the death of the deceased he was not among the sympathisers who came out following P.W.2’s wailing; that the evening prior to the night of the killing he saw P.W.2 with the deceased who he must have assumed was a real rival. If that was all it would not have been enough, for circumstantial evidence sufficient to sustain a conviction must be positive and irresistible.

Above all it must leave no room for other explanations except the accused person’s guilt. The actions of the 1st accused were those of a jilted lover who suddenly saw his lover in the company of another imagined lover. That jealousy must have been intense but it alone would not have concluded the case against the 1st accused person. Put together with the direct evidence, the picture is in my view different. What was the direct evidence accepted by the trial Court and which I see no reason to interfere with On the night of the operation, the P.W.2 recognised 1st accused person’s voice and indeed heard him directing the operation – a position clearly understandable as he was in a familiar terrain. He directed the others to the door they thought led to the room of the P.W.2 – a room he very well knew.

Unfortunately for the deceased, and fortunately for P. W.2, it was the deceased who was occupying that room that night. More importantly, is that he had every opportunity of being at the scene of crime. His defence was an alibi that he was at home the whole of that night. But P.W.6 in his investigations showed that the room the 1st accused person, occupied in his parent’s home faced the road and he could come and go without any person, including his mother, being aware of his movements. I cannot see in whatever way the conclusion of the High Court and the Court of Appeal in respect of the 1st accused can be seriously faulted. There was enough evidence, outside the areas on which I have expressed reservations to justify his conviction.

The case against the 2nd accused seems to me to fall into a slightly different category. The circumstantial evidence used against the 2nd accused was similar to that against the 1st accused. He had made love advances to the P.W.2 but was conclusively rebuffed. He was bound to be unhappy about this. This unhappiness manifested itself in his refusal to return her greetings; in his addressing her derisively as “madam” and giving her a slap when P.W.2 showed resentment; in his ultimately withdrawing his son from P.W.2’s class in the school. The assault on P.W.2 resulted on damage to her wrist watch and trinkets.

When the report made to the Police against 2nd accused was withdrawn, he failed to pay N48 as he had promised. The 2nd accused, it was said, did not join the other sympathisers although the church bell was rung and P.W.2 was heard by all wailing. Both the 1st and 2nd accused persons are said to have ridden past the P.W.2’s house and seen P.W.2 conversing with the deceased – a man they must have thought was a rival. Moreover, the keys to P.W.2’s room were said to be given to the deceased in the presence of 2nd accused.

Again these amount to strong circumstantial evidence, but clearly not up to the standard required to sustain conviction. As regards the failure of the 2nd accused to join the other sympathisers, 2nd accused in his defence said he lived 2 miles away from the P. W. 2 and so did not hear the church bell toll. Nobody controverted the assertion that he lived 2 miles away. Besides, 2nd accused was not the only person who did not hear the church bell that night – P.W.5 did not hear it either, 2nd accused was a spurned lover and was bitter.

Jealousy must have welled in his bosom when he saw P.W.2, whose love he had failed to win, give her keys to another man, and then P.W.2 and that man still chatting outside her home in the evening. But that without something more is insufficient to lead to an irresistible conclusion of guilt. D.W.4 the wife of the 2nd accused made an impassioned defence of her husband to the effect that she slept with him throughout the fateful night. Although the 2nd accused did not mention any alibi in his statement to the Police, the learned trial Judge did not specifically disbelieve the testimony of D.W4. Was there any direct evidence against the 2nd accused Apart from the testimony of P.W.2 that she saw 1st and 2nd accused carrying the corpse of her late brother outside, a piece of evidence I had indicated my inability to support having regard to the circumstances that night, there is nothing else against the 2nd accused.

The evidence of P.W.2 that she heard 1st accused call out “Teacher, Teacher” may well be true, but is 2nd accused the only teacher in that town or that State I am of the view that if the learned trial Judge had sufficiently warned himself, and had fully adverted to the questions I raised above about P.W.2’s evidence, and the caution with which such tainted evidence must be received and acted upon, he would not have convicted the 2nd accused. His failure and that of the Court of appeal to do so, occasioned a miscarriage of justice. I shall give the benefit of the lingering doubt in my mind to the 2nd accused as I ought to do in a case such as this which is a capital offence.

In the result, the appeal of the 2nd appellant succeeds and it is allowed. I hereby set aside the judgments of the High Court and the Court of Appeal and enter in his case a verdict of discharge and acquittal. I find the appeal of the 1st appellant unmeritorious and I hereby dismiss it. The conviction and sentence previously passed on him are further affirmed.

SC.71/1987