Pius Nweke V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE J.S.C. 

The appellant stood trial in the High Court of Ogun State in the Ijebu-Igbo Judicial Division for the murder of his wife, Josephine Pius Nweke. Having pleaded not guilty to the charge, the prosecution called seven witnesses in proof of its case. At the close of the case for the prosecution, the defence opened its case by calling the appellant to testify. Thereafter, counsel for both the defence and the prosecution addressed the Court. In a reserved judgment, the learned trial Judge accepted the case for the prosecution and found –

1. That the prosecution had proved the death of the deceased;
2. That the corpse deposited at the State Hospital Ijebu-Ode and on which PW1, Dr. O.O. Oyekan performed a post-mortem examination was that of Josephine Pius Nweke, the late wife of the appellant;
3. That “the death of the deceased was a result of the cut that was given her in her throat”;
4. That the wound that killed the deceased was not self inflicted.

On these findings the learned Judge found the appellant guilty of the murder of Josephine and sentenced him to death by hanging.

The appellant appealed unsuccessfully to the Court of Appeal and has now further appealed to this Court on two grounds of appeal. In the brief filed on behalf of the appellant and pursuant to the rules of this court, the following two issues are posed as calling for determination in this appeal, they are:

“(1) Whether the court below was not wrong when it confirmed the conviction of the appellant for murder considering the quality of circumstantial evidence adduced by the prosecution at the trial.

(2) Whether the court below was not wrong when it confirmed the appellant’s conviction for the murder of his deceased wife when there was no certainty as the identity of the body on which a postmortem examination was performed by PW 1”.

Before I go into a consideration of these issues, I need set out the facts. The case for prosecution is that the appellant and the deceased, Josephine Pius Nweke were husband and wife; they both lived together at Oribe village, via Ago Iwoye, Ogun State, until the death of the deceased (appellant’s wife) on November 11,1992. The couple had a kolanut farm at Odoliwu village, via Ago Iwoye. In the morning of 11th November 1992, the appellant and his wife left their Oribe village together for their farm at Odoliwu village. This was at about 10 a.m, They passed by Tairu Hassan and Olusola Kadiri (PW3 and PW4 respectively) in the Oribe village and exchanged greetings with them. They all knew each other before that day as they lived in the same village – Oribe. About an hour after the appellant and his wife had left PW3 and PW4 for their kolanut farm, the latter heard an unusual noise from the direction of the farm of the appellant. They moved towards the farm in order to find out what was the cause of the noise. On their way to the appellant’s farm they met the appellant coming back from the farm; he was alone. They inquired from the appellant the cause of the noise from his farm. The appellant replied that his wife (the deceased) was a troublesome woman and that she was carrying a pregnancy that did not belong to him. He added that he had asked the deceased to take the pregnancy to the owner but the deceased refused to do so. When PW3 and PW4 asked the appellant the whereabouts of the deceased, he replied that the deceased had left the farm through another route. PW3 and PW4 walked with the appellant to the former’s hut where, at the appellant’s request, they gave him water to drink. The appellant, who was all the time carrying a load on his head and had a matchet in his hand, put the load down in order to drink the water they gave him. It was at this stage PW3 and PW4 noticed that the appellant had in the luggage the same clothes and pair of slippers the deceased wife wore that morning when she passed them on her way to the farm. They became suspicious. The appellant noticing the curiosity of these two witnesses for the prosecution lifted up his load, put it on his head and went away.

PW3 and PW4 decided to find out what happened in the farm and left for the appellant’s farm. On reaching there they found the dead body of his deceased wife with her throat slashed. She was naked and lying in a pool of blood. They made a report to the police who then commenced investigation into the death of the deceased. Police took a photographer to the scene and the latter took some snapshots of the deceased. The corpse of the deceased was later conveyed to the State Hospital mortuary at Ijebu-Ode, where PW1 performed a post-mortem examination on the corpse. According to the evidence of PW 1 which the learned trial Judge accepted, the corpse of the deceased had a deep cut in front of the neck. On the chest there was nothing significant. The examination of the abdomen revealed that the deceased was pregnant. On opening the abdomen I found a dead male baby. There was no fracture of the leg. My opinion as to the cause of death was loss of blood due to the cut throat.

The appellant was arrested some days after the incident and on his arrest by the police; he made a statement in which he denied killing his wife. In his evidence at the trial he denied going together with his wife to the kolanut farm. He testified that it was the wife who went alone to the farm to pick kolanuts; he went to another farm to work. On his return from the farm he went to, he inquired from neighbours if his wife had returned from the kolanut farm. He was told she had not returned. It was then night time and he could not do anything that night. The following morning, however, he set out in search of his wife. Here is what he said in evidence:

“The following day I went to look for her at Odoliwu. When I asked some villagers if they had seen my wife in the village, they told me they did not see her and that she never came to that village the previous day. When I did not find her after a thorough search I returned to Origbe village from Origbe I went to Imodi-Mosan. When I got to Imodi-Mosan, I went to my wife’s senior sister’s house to report to her that I could not find her sister, my wife. The sister was not at home. When I looked around for her sister at Imodi-Mosan I did not find her, I went to our hometown. I did not know that my wife was already dead; I had thought she had traveled home that is why I went home to look for her. In our hometown, I inquired from people if my wife had come home. They told me they had not seen her. I went to look for her from her (my wife’s) relative. They said they did not see her. Her relative inquired from me if there was a quarrel between me my wife. I told them there was no quarrel between us. It was when I returned from our hometown and went to Imodi-Mosan that I went to report to the police at the police station that I did not see my wife.

That was the time they arrested me”.

I now turn to the issue raised in this appeal beginning with issue (1).

Issue (1)

This issue relates to the quality of the circumstantial evidence relied on by the prosecution and on which the learned trial Judge convicted the appellant. It is the submission of learned counsel for the appellant that the evidence accepted by the trial Judge was not positive, cogent and compelling to justify a conviction being based on it. It is learned counsel’s submission that the evidence raised, at best, suspicion. He also submitted that the evidence did not rule out the possibility of someone else committing the offence. Relying on the evidence of PW1 under cross-examination, learned counsel also submitted that the possibility of the deceased committing suicide could not be ruled out either.

The sum total of the submissions of learned Attorney-General of Ogun State, both in his brief and in oral submission, is that the circumstantial evidence adduced at the trial was cogent, compelling and positive enough to sustain the conviction of the appellant. He urged the Court not to disturb the verdict of the courts below.

The law on circumstantial evidence is now well settled and is beyond dispute. It is its application that is often the cause of dispute between the prosecution and defence. The law is as stated by Hewart Lord Chief Justice of England in R v. Taylor & Ors. (1928) 21 CAR 20 at P.21:

“It has been said that the evidence against the applicants is circumstantial: So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial”,

This statement of the law was approved by this court in Fatoyinbo v. Attorney General of Western Nigeria (1966) WNLR 4; See also Adie v. The State (1980) 1-2 SC 116; Ukorah v. The State (1977) 4 SC 167; Aigbadion v. The State (2000) 7 NWLR (Pt.666) 686; Wills on Circumstantial Evidence (7″ edition). at P .324.

In the case on hand, the following facts emerge from the evidence accepted by the learned trial Judge, particularly that of PW3 and PW4:

1. On 11/11/92 at about 10 a.m., the appellant and his wife were seen together at Oribe village going to their kolanut farm at Odoliwu village; the appellant was holding a matchet.
2. At about 11 a.m. of that day the appellant and his wife were heard quarrelling; the wife was shouting and screaming in the farm.
3. As PW3 and PW4 were going to the appellant’s farm to find out what was happening between the appellant and his wife, they met the appellant returning alone carrying a load on his head and holding his matchet.
4. On enquiring from the appellant the where about of his wife, he told PW3 and PW4 that his wife was a troublesome woman and that they quarrelled over the pregnancy she was carrying in that the pregnancy belonged to another man. He added that he had told his wife to take the pregnancy to the owner but that she refused to do so. He finally told PW3 and PW4 that his wife has left the farm through another route.
5. The appellant followed PW3 and PW4 to their hut in the village where he asked for water. He was given water to drink. He put the load on his head down in order to drink the water. PW3 and PW4 saw among the load the clothing and pair of slippers appellant’s wife wore to the farm that morning.
6. The appellant on observing that PW3, PW4 and others around focused their gaze at his load, got up, carried the load on his head and left.
7. PW3 and PW4 then left for the appellant’s farm to find out what had actually happened. On getting to the farm, they discovered the naked corpse of the appellant’s wife; her throat had been slashed and she was lying in a pool of blood.
8. A report was made to the police who went to appellant’s house at Imodi to look for him but the appellant had disappeared. He was arrested nine days after the incident following information given to the police by a clergyman with whom the appellant stayed for about 4 days after the incident.
9. Post-mortem examination confirmed that appellant’s wife was carrying a pregnancy at the time of her death and that she died from loss of blood from the cut to her throat.

The facts above, no doubt, called for some explanation from the appellant.

But what explanation did he give First, he lied to PW3 and PW4 that the deceased wife had left the farm by another route. Secondly, he lied to the police that when he did not see his wife return home, he went in search of her at her sister’s place and later in their hometown. The learned trial Judge had no hesitation in rejecting his stories, both in his statement to the police and in oral evidence.

In my respectful view, the facts proved against the appellant are so cogent, unequivocal, and conclusive that they point irresistibly to the appellant, as the person who killed his wife on 11/11/92. There is here a complete and unbroken chain of evidence disclosing circumstances accumulation of which clearly and forcibly suggests that it was the appellant who committed the offence with which he was charged, and no one else could have been the murderer of his deceased wife.

A lot of fuss has been made of the evidence, under cross-examination of PW1 to the effect that –

“It is possible for anyone to sustain the cut I found on the corpse by falling on a sharp object”.

The learned trial Judge after a consideration of the evidence before him observed:

” ….. .I do not believe that the wound that killed the deceased was self-inflicted. The wife died on the spot after the wound had been inflicted. If it had not been so, there would have been some evidence of some struggle before the death. If the deceased died on the spot, then the weapon used to cut her throat would have been found, at the scene. The weapon must have been removed by the killer; hence it could not be found and produced in court”.

I think the learned trial Judge was right in rejecting the opinion of PW1 that it was possible for the deceased to sustain the wound by a fall on a sharp object. This opinion is inconsistent with the evidence at the trial.

It is equally argued on behalf of the appellant that the fact that PW3 testified that he did not know what was in the luggage carried by the appellant when he and his wife were going to the farm on the morning of the fateful day disclosed a co-existing circumstance which ought to have made the court below slow to affirm the decision of the trial court. It is argued that the possibility could not be ruled out that the appellant was having in his luggage when he and his wife were going to the farm clothing and slippers similar to the ones worn by the wife. Surely learned counsel, with respect, cannot intend that this submission be taken seriously. The overwhelming evidence was that the deceased was found in the farm NAKED. The irresistible presumption must be that it was the clothes and slippers she wore that morning that the appellant carried in his luggage after the deceased had been stripped naked and murdered. There can, therefore, be no co-existing circumstance that whittled down the cogency of the circumstantial evidence led in this case against the appellant.

In conclusion, I resolve issue (1) against the appellant.

Issue (2)

This puts in question the identity of the body on which PW1 performed an autopsy as that of the deceased wife of the appellant. It is submitted that as the appellant was still on the run when autopsy was performed, he could not have identified the body to PW1 as that of his wife.

It is true that PW1 must be mistaken in his evidence when he testified that it was the appellant who identified the corpse on which he (PW 1) performed an autopsy as that of his (appellant’s) wife. The examination was performed on 14/11/ 92; the appellant was on the run then, as he was not arrested until 20/11/92. But this error, in my respectful view, does not occasion any miscarriage of justice. That it was on the body of appellant’s deceased wife that PW 1 performed an autopsy is borne out by the following –

(a) PW3 and PW4 who knew her before the date of the incident saw her body lying naked in appellant’s farm with a deep cut to her throat. She was pregnant at the time.

(b) They reported to the police. The police brought a photographer to the farm who took the picture of the deceased while lying on the ground dead. The police, together with PW3 and PW4, on 12/11/92 conveyed the corpse of appellant’s deceased wife to the hospital mortuary where PW1 performed an autopsy.

(c) The corpse PW1 performed a post-mortem examination on had a deep cut to the throat and the deceased was in an advanced stage of pregnancy at the time of her death.

(d) The appellant admitted his late wife was carrying an eight month pregnancy at the time he saw her last.

On the facts above, there can be no doubt that it was on the corpse of appellant’s deceased wife, Josephine that PW1 performed an autopsy. I do not think this is a case where identification of the deceased could be said to be in or in doubt.

I, therefore, resolve issue 2 against the appellant.

Finally, the two issues raised in this appeal having been resolved against the appellant, I must conclude that his appeal fails and it is hereby dismissed by me. I affirm the judgment of the court below which, in turn, affirmed the conviction of the appellant for the murder of Josephine Pius Nweke and the sentence of death passed on him.

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SC.85/2000