Ojuri Anjola V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A (Delivering the leading Judgement)

At the High Court of Ondo State, Akure Judicial Division, the appellant was arraigned on information dated September 29, 2004. He was alleged to have murdered one Sunday Ayodele “contrary to and punishable under section 319(1) of the Criminal Code Cap 30 Vol. 11, Laws of Ondo State, 1978.” A proof of evidence containing a list of five witnesses and the proposed exhibits was filed with the information.

An additional proof of evidence, dated February 1, 2006, was also filed. The trial of the accused person commenced on May 31, 2006. In proof of its case, the prosecution called two witnesses. The accused person testified for himself as DW1. He called three additional persons who testified as DW2, DW3 and DW4. The case of the appellant was that he was not at the locus criminis and could not have been responsible for the death of the deceased.

At the conclusion of the case, the court [Coram Bola J], (hereinafter referred to as the lower court), in its judgement of February 16, 2010, convicted the appellant and sentenced him to death by hanging. Aggrieved by the said decision, the appellant has appealed to this court. Two issues were formulated for the determination of his appeal. They were framed thus:

ISSUES FOR DETERMINATION

1. Whether from the circumstances of this case, the prosecution proved its case beyond reasonable doubt against the appellant in spite of the obvious and material contradictions in the evidence of the prosecution witnesses.
2. Whether the trial court properly directed itself in dismissing the alibi raised by the accused person when there is (sic) nothing placed before the Court to debunk same.

The respondents adopted these issues; hence, they would be used in the determination of this appeal.

Issue 1

Whether from the circumstances of the case, the prosecution proved its case beyond reasonable doubt against the appellant in spite of the obvious and material contradictions in the evidence of the prosecution witnesses.

ARGUMENTS OF THE APPELLANTS COUNSEL

When this appeal came up for hearing, appellant’s counsel, M. A. Ojo, adopted the brief of argument filed on November 16, 2011. He placed reliance on the arguments therein as his submissions in this appeal. In the said brief, he contended that the evidence of the two witnesses for the prosecution, especially that of PW1, could not justify the conviction of the appellant without any other corroborative evidence in support of the case of the prosecution. He observed that the lower court placed heavy reliance on the evidence of PW1 in convicting and sentencing the appellant for the offence of murder contrary to the above provisions of the Criminal Code.

Counsel explained that the PW1, the mother of the deceased person, testified that she saw the appellant stabbing the deceased, Sunday Ayodele, with a knife. The deceased fell down. He later died in the hospital. She further testified that her other son saw this development. He cited Ubani v. State [2003] 18 NWLR (pt 851) 224, 241 for the ingredients of the offence of murder. It was argued that the prosecution must establish all these ingredients that constitute the totality of the offence charged, Isibor v. State [2002] 3 NWLR (pt 754) 250, 278. Above all, it must establish the guilt of the accused person beyond reasonable doubt. It must, also, prove the cause of death and that it was due to the act of the accused person. Thus, the prosecution cannot succeed if it established the cause of death alone.

Counsel contended that, in the present case, there was no evidence of the cause of death. The alleged “Makeje Knife,” used in killing the deceased, was never brought to court for identification or as evidence. Neither was any evidence produced in proof of the death of the deceased, citing Aiguoreghian v. State [2004] 3 NWLR (pt 860) 367, 408-409 on the imperative of the proof of the certainty of the cause of death and that the death of the deceased person eventuated from the act of the accused person. The view was canvassed that, in the instant case, there was no evidence of death or reliable proof of the cause of death placed before the court. This was fatal to the case of the prosecution, Aiguoreghian v. State (supra) 418.

He explained that the appellant testified and called witnesses to establish that he was not present at the scene of the fight (if any) and could not have been responsible for the death of the deceased. The only witness for the prosecution who claimed that the appellant killed the deceased was the PW1, the mother of the deceased. It was, then, submitted that, though no particular number of witnesses was required to prove any fact, yet the court must be careful in convicting on the evidence of a single witness in a serious offence like murder, Amodu v. State (2010) 2 NWLR (pt 1177) 47,77. Counsel contended that it was unsafe and dangerous for a trial court to convict on the uncorroborated evidence of a witness who was also a victim as, in the instant case, the mother of the deceased, citing Amodu v. State (supra).

It was submitted that, in criminal cases, the burden of proof of the commission of an offence was, strictly, on the prosecution, citing section 137 (10) of the Evidence Act 2011. The burden never shifts. The prosecution must not create any lingering doubt in its evidence. If there was any doubt, it must be resolved in favour of the accused person, Nnolim v. State [1993] 3 NWLR (pt 283) 569,580-581. The court was urged to note that the PW2, Adekunle Ayodele, a brother of the deceased person, gave evidence that it was the PW1 that informed him that the appellant had stabbed the deceased. In other words, he never witnessed what led to the death of the deceased.