Igboji Abieke & Anor Vs The State (1975)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, C.J.N. 

The appellants were the accused in Charge No. AB/51C/73. They were tried in the High Court of the East – Central State sitting at Abakaliki for the murder of Echem Otagbara and were convicted and sentenced to death on 17th December, 1973. On 2nd October, 1975, we allowed the appeal, set aside the convictions and sentences of the appellants and ordered that they be acquitted and discharged. We now give our reasons for allowing their appeals.

The learned trial Judge said in his judgment that “the whole case against the accused persons was founded on circumstantial evidence which counsel submitted was not cogent enough.” He also pointed out “that there is no evidence to the effect that the accused persons actually killed the deceased.” Indeed, at the hearing of the appeal, learned counsel for the appellants, Mr. F.O. Akinrele, in a few brief submissions based on his ground of appeal clearly demonstrated that the evidence at the trial did not lead irresistibly to the guilt of either of the accused persons and that the judgment could not therefore be supported having regard to the evidence. In the circumstances, learned counsel for the respondent ultimately conceded that all the evidence available was the “absence” of the deceased and the contradictory statements of the appellants, and that there was no direct evidence of a killing. He accordingly found himself unable to support the conviction and rightly so.

The facts as testified by the prosecution witnesses and accepted by the trial Judge himself are as follows. The two appellants and the deceased Echem Otagbara lived at different places at Amagu village. On or about the 2nd September, 1972, the 1st appellant called in the night to see Echem and Echem’s step mother, Alobu Otagbara (P.W. 2) told the 1st appellant that Echem had gone to bed. The 1st appellant then left.

In the morning, she went to the place where Echem was supposed to have slept but did not see him. On her way to he stream to fetch water, she saw the 1st appellant and asked him about Echem,. The 1st appellant said that Echem was in his brother’s house. She mentioned that she had been there but did not see Echem and the 1st appellant replied that he too had been looking for Echem unsuccessfully. Alobu reported the matter to her husband (Echem’s father) who sent for the 1st appellant. The 1st appellant denied any knowledge of the whereabouts of Echem. He persisted in his denial until the sixth day afterwards, when he admitted knowing what had happened to Echem.

The 1st appellant then gave the following account of the circumstances of the disappearance of Echem. He said that he had travelled with Echem in a canoe carrying a cow which was to be sold and that the canoe capsized and that Echem, the cow and the canoe got lost in the river. The 1st appellant said that they had bought the cow for resale. Echem’s father summoned the villagers and the 1st appellant confirmed that Echem had drowned in the river. They all went to the river to search, but Echem’s body was not recovered. The testimony of Alobu Otagbara was corroborated by Echem’s father, Otagbara Egbe (P.W. 3) in material respects.

It is clear that the 1st appellant prevaricated concerning the whereabouts of Echem before coming out with his own account of the circumstances in his statement to the Police and also in his sworn testimony at the trial. However, the learned trial Judge disbelieved the evidence of both appellants and of course, the accounts they gave in their statements to the Police and also in their sworn testimony as regards the circumstances in which Echem lost his life.

In his statement to the Police, the 1st appellant said:-

“We put the cow inside the canoe and we entered into the canoe. As we reached the middle of the river the cow started to struggle and later sank the canoe. Three of us started to swim. After I had come out from the river together with Orogwu, the canoe-man, we did not see Echem Otagbara. We did not see the cow and the canoe.”

In his sworn testimony he said

“At the centre of the river the boat capsized after we had gone two miles, Echem, the 2nd accused, and myself started swimming. I did not see the 2nd accused nor Echem as I was swimming, I came out myself looked for Echem and the 2nd accused and did not see either of them.”

………

“I then went to Echem’s father (P.W. 3) the same day. There I told (P.W. 3) that the cow we went to sell capsized our boat and I did not see Echem.”

The 2nd appellant said in his statement to the Police –

“About eight days ago (11/9/72) at about 5 a.m. one Igboji Abieke and Echem Otagbara came to me at Cross River at Igbo Nkparagwu village. I am a canoe man. The two men tied the four legs of the cow and put it in the canoe, I started to drive the canoe together with Igboji Abieke and Echem Otagbara. As we reached the middle of the river the cow started to struggle and later the cow overpowered me and turned the canoe into the River. Igboji Abieke and myself swam across the river. We looked round but we did not see Echem Otagbara and the cow and the canoe.”

In his sworn testimony he said-

“After the cow had been put into the canoe we set off and at the middle of the river it started to struggle and the canoe capsized and we all jumped out and started swimming…..

when I got home the 1st accused met me. I asked him of his friend and he said he did not see him.”

The learned trial Judge said in his judgment that he would “refrain from making any adverse comments on the statements made by the accused persons to the Police (Exhibits C and D) nor or spotlighting any contradictions between the said statements and the oral testimonies of the accused persons in Court.” He then pointed out that the 1st accused made his statement to the Police in pidgin English which was taken down in very good English, while the 2nd accused made his statement to the Police through the medium of an interpreter who was not called as a witness. The learned trial Judge was well aware that the statement of the 2nd accused was inadmissible and cited the cases of Rex v. John Ogbuewu (1949) 12 W.A.C.A. 483 and the Queen v. Charlie Mboho (1964) N.M.L.R. 49 on the point. He nevertheless admitted it in evidence presumably because “it was in no way objected to.” In the circumstances it cannot be safely concluded that the contradictions which he referred to but refrained from spotlighting did not in fact have a gravely prejudicial effect on his mind and substantially contribute to his adverse findings against both accused persons.

Both appellants denied killing Echem. The 1st appellant testified further that Echem was friendly with him, that he was “married from P.W.3’s compound”, that he had no quarrel with Echem and had no reason to kill Echem. This testimony is uncontradicted and the 1st accused was not cross-examined on the point.

At the close of the case for the prosecution, and before the appellants testified, the only evidence prejudicial to the 1st appellant was that he had prevaricated about his knowledge of the whereabouts of Echem and had failed to make a report at the earliest opportunity to the Police, but the father of the 1st appellant Ottagbara Egbe (P.W.3) also failed to do so. The 2nd appellant also failed to make a report to the Police. The learned trial Judge, as already pointed out, disbelieved the accounts contained in their statements to the Police. At this stage, therefore, he was left with (1) the evidence of the disappearance of Echem and (2) an account of the circumstances of Echem’s disappearance which he totally rejected. There was no other evidence connecting the appellants with Echem except their own which was rejected. The prosecution accordingly failed to prove (a) death as the result of a voluntary act of the appellants and (b) any intention or motive of the appellants, or either of them, to kill Echem. The fact that the appellants went into the witness box to repeat the same account on oath did not carry the prosecution’s case any further.

The approach of the learned trial Judge to the evidence (or rather lack of it) in this case is summed up by him in these words –

“The position of this – that the two accused persons are the last persons in this world to have seen Echem alive. They have told a story which is completely false and untrue.”

If the story of the appellants is completely false and untrue then it is also completely false and untrue that they ever saw Echem in the circumstances described by them, or at all, since there is no other evidence that they saw him in any other circumstances related to the charge of murder. Indeed, on the evidence of Echem’s father’s wife, Alobu Otagbara (P.W.2), it was she who last saw Echem alive. She testified that Echem after eating on the night before his disappearance and asking her to wake him up in the morning, went to sleep in one of the houses in the compound. Later that night the 1st appellant came to her and asked for Echem and she told him that Echem had gone to bed. The 1st appellant then left. On the following morning, she went to wake Echem up but did not see him.

The learned trial Judge appears in his judgment to have been primarily concerned about the technicalities of arriving at a verdict of guilty of murder where “there is no trace of a body” and picking out a number of contradictions between the testimony of the appellants and the evidence adduced on behalf of the prosecution, These contradictions were all resolved in favour of the prosecution and no doubt left in his mind a strong suspicion of the guilt of the appellants.

It is, however, an elementary proposition that mere circumstances of suspicion are not sufficient to justify a conviction or, put in another way, suspicion, however strong, cannot take the place of legal proof. Before a defendant can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. Circumstantial evidence should be so cogent and compelling as to convince a jury that on no rational basis other than murder can the facts be accounted for: See R. v. Onufrejczyk 39 Cr. App. R.I.

Consequently, we held the view that the evidence upon which the learned trial Judge relied as circumstantial evidence fell far short of the standard required by law, and that the prosecution failed to proved beyond reasonable doubt that the appellants are guilty of murder as charged: See R. v. Moses (1960) 5 F.S.C. 187; also R. v. Ororosokode (1960) 5 F.S.C. 208.

For the foregoing reasons we allowed the appeals, set aside the convictions of both appellants and directed that a verdict of acquittal be entered.

Other Citation: (1975) LCN/1999(SC)