Adankwor Etumionu V. Attorney-general of Delta State (1994)

LawGlobal-Hub Lead Judgment Report

ATINUKE OMOBONIKE IGE, J.C.A

This is an appeal against the judgment of Justice S.M. Edah of Agbor High Court delivered on 26/5/92 whereby the appellant was convicted and sentenced to death for the murder of Emily Oriaka.

In the lower court two people Obiajunu Etumionu (m) and Adankwor Etumionu (f) – the appellant were first charged on an information for the murder of Emily Oriaka but the first accused was discharged on a no case submission under section 286 of the Criminal Procedure Law. The 2nd accused i.e. appellant in this case proceeded to give evidence in her defence and called no witnesses. The prosecution had earlier called 6 witnesses including the father of the appellant.

The facts of the case are briefly thus.

On 29/1/88 there was a quarrel between the appellant and the deceased whom she often referred to as her grandmother. The deceased made a report of this quarrel to the Police who arrested the appellant and other relations in their compound.

Later the people arrested were released with a warning by the Police that they should go home and live in peace. There was another quarrel between the appellant and the deceased on 5/2/88. Both quarrels were witnessed by the P.W.3 a relation of both the appellant and the deceased. When the deceased returned from her church on the evening of 5/2/88 she could not find the key to her room hence she had to use her duplicate key to open her door – the only entrance to her apartment in their compound. P.W.3 was the last to see off the deceased into her room on the night of 5/2/88.

In the morning of 6/2/88 P.W.3 Agnes Osubor went to see the deceased in her room when the latter didn’t make her usual morning rounds of greeting and to her chagrin she found the deceased stone dead standing erect on the ground with a rope on her neck tied to the bamboo ceiling of the house. P.W.3 raised an alarm and people in the compound came round except the appellant and some of her close relations.

The appellant and her senior brother Obiajunu Etumionu were then charged for the murder of the deceased. The learned trial Judge in a considered ruling discharged the brother Obiajunu and also in a considered judgment convicted the appellant for the murder of Emily Oriaka and sentenced her to death on 28/5/92.

It is against this judgment that the appellant has appealed to this court and filed 8 grounds of appeal as follows:-

1. The learned trial Judge erred in law in finding the appellant guilty of murder when the prosecution failed to prove its case beyond all reasonable doubt.
2. The learned trial Judge misdirected himself in law when he held:-

“I honestly believe that the matter is much more than mere suspicion. For one may ask, was it a mere coincidence that after the quarrel of the evening of 5/2/88, between the deceased and the accused, the deceased returned from the church service to find the key to her room missing. Was it a mere coincidence that the very next morning, the Deceased’s door was found half open, having been opened from outside”.

3. The learned trial Judge misdirected himself in law when he held:-

“And was it a mere coincidence that after the deceased had been murdered in cold blood, she was made to appear as if she committed suicide.”

4. The learned trial Judge misdirected himself in law when he held:-

“That it was the accused and no one else who opened the Defendant Deceased’s room and strangled her to death.”

5. The learned trial Judge misdirected himself in law when he held:-

“That the accused formed the mens rea on or about 29/1/88 and translated the mens rea into actus reus on 6/2/88”

6. The learned trial Judge misdirected himself in law when he held:

“However, I find the failure of the accused in refusing to respond to the alarm raised by P.W.3 as being contrary to the normal course of human conduct particularly in a close knit society like ours. It seems to be logical arid reasonable to infer from the accused’s conduct that she refused to come out in response to the alarm raised, because she knew she had killed the deceased.”

7. The learned trial Judge misdirected himself in law when he held:-

“I am therefore of the view that having regard to the surrounding and particular circumstances of this case, there is no reasonable hypothesis on which to explain the death of the deceased other than the fact that the accused murdered the deceased”.

8. The judgment is altogether, unreasonable and cannot be supported having regard to the evidence.

Out of these 8 grounds of appeal the appellant has submitted 3 issues for determination,

(a) In a charge of murder, could it be said that the ingredients of the offence of murder have been made out on the face of contrarious testimonies of prosecution witnesses, some of which amounted to “hear-say”?

(b) What is the standard of proof in a murder case and on whom does the BURDEN LIE, ESPECIALLY WHEN THE Learned Trial Judge suo motu regarded same as circumstantial evidence?

(c) Is it now the law that suspicion, no matter how strong can take the place of legal proof as said by the Learned Trial Judge by the inferences he conjured suo-motu as to why the accused/appellant was found guilty in face of no such evidence adduced during the trial?

On the other hand the respondent in his brief of argument submitted 4 issues for determination thus:-

1. Whether there was direct evidence against the appellant.
2. Whether there was circumstantial evidence against the appellant.
3. Whether the circumstantial evidence of any of the prosecution witnesses were posed on mere suspicion.
4. Whether the contradictions if any in the case of the prosecution is enough to weaken the case of the prosecution.

The issues postulated by parties in this appeal are similar in effect and I shall treat the first two issues submitted by the appellant together because they both deal with ingredients of murder and standard of proof required.

The first issue posed by the appellant is whether it could be said that the ingredients of the offence of murder have been made out on the face of contrarious testimonies of prosecution witnesses, some of which amounted to hearsay?

In his brief of argument counsel for the appellant after stating the requirements to be proved in a charge of murder before the prosecution could succeed, went on to analyse the evidence of the P.W.s, pointing out their contradictions and hearsays finally submitted that the essential ingredients of murder were not made out and with the various contradictions in the evidence of the P.W.s there was just no material evidence upon which the Judge could convict.

To buttress his argument he cited the following cases:

1. Okoro v. The State (1988) 5 NWLR (Pt.94) 255 Ratio 7
2. Emine V. The State (1991) 7 NWLR (Pt.204) 480 Ratio 1
3. Nwabueze v. The State (1988) 4 NWLR (Pt.86) 16 Ratio 6
4. Aruna v. The State (1990) 6 NWLR (Pt.155) P.125 Ratios 4 & 5
5. Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 Ratios 10-13

Counsel also submitted in respect of Issue B that the appellant ought to have been discharged at the close of prosecution’s case as no prima facie case was made out against her. The phrases ‘I believe’ or I do not believe are no sufficient grounds for conviction – Counsel submitted

On the other hand the learned counsel for the respondent in his very scanty brief of argument conceded the fact that there was no direct evidence against the appellant but went on to submit that the circumstantial evidence in the case is so cogent and compelling that no other inference could be drawn other than that the appellant killed the deceased. According to him the trial Judge didn’t base his findings on mere suspicion. He finally submitted that the contradictions in the evidence of P.W.s are immaterial and did not affect the case of the prosecution.

For the prosecution to succeed in a charge of murder, it must prove the following ingredients.

1. That the death of the deceased was a result of the voluntary act of the accused;
2. That the accused had an intent to cause the death or cause grievious bodily harm to the deceased;
3. That the death of the deceased was a direct result of the act of accused to the exclusion of all probable causes.

Looking through the whole evidence in this case there is no direct evidence as to who killed the deceased. The learned trial Judge admitted this in his judgment when he said; I quote from page 36 of the records.

“The evidence further reveals that there is no eyewitness to the brutal killing of the deceased. It follows therefore that the prosecution’s case is anchored entirely on circumstantial evidence”.

The trial Judge referred to the substantial circumstantial evidence on record as the evidence given by P.W.2, P.W.3, P.W.4, and P.W.6 – P.W.3 apparently being the star witness. Upon a close examination of the evidence of P.W.2, P.W.4, P.W.6 there is nothing to connect the appellant with the killing of the deceased. It is pertinent to examine the evidence of the P.W.3 who claimed to have witnessed the 2 quarrels between the deceased and the appellant on 29/1/88 and 5/2/88 respectively.

She was the one who first discovered the death of the deceased on the morning of 6/2/88 and raised an alarm to which the appellant did not make a quick response. This witness the learned trial Judge referred to as star witness. These are the salient parts of her evidence which related to the appellant. I quote

“I know both accused persons. In the evening of 29/1/88 as I was working in my house, I heard an alarm. I rushed to the scene where the alarm came from and met the deceased shouting. I saw the 2nd accused (appellant) holding a stick. I asked the 2nd accused what the matter was but she did not answer me but merely said that Emily Oriaka put her in present condition by poisoning her. I then pleaded with the 2nd accused to leave the deceased alone. As I was pleading with the 2nd accused, P.W.2 came to the scene and took the 2nd accused to his own house. I now say that it was the deceased that P.W.2 took away…

In the evening of 5/2/88, the deceased went to church and when she returned she started quarrelling with the 2nd accused person. I now say that the deceased had finished quarrelling with the accused before she left for church service. When the deceased returned from church she could not find the key to her house…

She had to use a spare key to open the door. I then bade her good night.

On 6/2/88 the deceased did not go round to greet us as she normally did. So I had to go to find out what was happening. I discovered the door was half open. On entering the room, I saw the deceased standing erect on the ground stone dead. So I raised an alarm.

Before I raised an alarm I saw that the deceased had a rope round her neck hanging from the ceiling or roof.

Under cross-examination witness said:

“I was the last person to see the deceased before she went to sleep that night. The 2 accused persons were not there then. It is true I was the first person to enter the deceased’s house the following morning. I was the first to see the body when I went to ask of her… when I raised the alarm on discovering the deceased’s body, people in the quarter responded to the alarm. The 2nd accused (i.e. appellant) locked up their door and never came out in response to the alarm raised by me … I had never seen the deceased quarrelling with any person. The quarrel of the 29/1/88 was the first I noticed of the deceased.”

I have quoted the evidence of this ‘star witness’ extensively because the learned trial Judge based most of his 19 findings of fact upon her evidence. The witness he said has impressed him as a witness of truth. Assuming that all that this witness said was true and the testimony of the accused found to be most unbelievable and unreliable, has the prosecution established a case of murder against the accused? My answer is in the negative.

In the judgment delivered by the learned trial Judge he himself agreed that the events of 29/1/88 did not establish the offence of murder. Where did he later got the evidence which revealed that the accused formed the mens rea on or about 29/1/88 and translated the mens rea into actus reus on or about 6/2/88? There is no iota of evidence on record that any fight or quarrel took place between the appellant and the deceased on 6/2/88. The deceased was found dead on that day. The quarrel which the learned trial Judge might be referring to the actus reus would be the one that took place on 5/2/88. From the star witness account of the event of 5/2/88 there is nothing to suggest that the appellant used any rope or stick during the quarrel. The witness first said the deceased returned from the church before quarrelling with the appellant. In another breath, she said the deceased had finished quarrelling with the accused before she left for church service.

The sum of total of the events of 29/1/88 and 5/2/88 are insufficient to connect the appellant with the killing of the deceased who was found hanging inside her room on 6/2/88 and who the doctor said died of respiratory failure. The offence of murder is such a serious offence which needs proof beyond all reasonable doubt.

The standard of proof required in a murder case as in all criminal cases is proof beyond reasonable doubt. The onus of proof is on the prosecution and not on the defence. It is after the prosecution has produced necessary evidence to establish its case that the burden shifts unto the defence if he has any contradicting evidence to call his own witness to establish such evidence. See the case of Sadau v. The State (1968) 1 All NLR p.124.

In this case the prosecution did not discharge the onus on them in a case of murder of the deceased hence there was no need to call upon the appellant to establish anything. Doing so will amount to asking the appellant to prove his innocence.

Coming to the third issue for determination which is really interwoven partly with the second issue and that is – Is it now the law that suspicion no matter how strong can take the place of Legal proof as said by the learned trial Judge by the inferences he conjured suo motu as to why the appellant was found guilty in the face of no such evidence adduced during the trial?

My answer to the first part of the question is an emphatic No. Suspicion no matter how strong or how grave can never take the place of legal proof. See the cases of

1. Abioye v. The State (1987) 2 NWLR (Pt.58) 645 CA;
2. Babalola v. The State (1989) 4 NWLR (Pt.115) 264 SC;
3. Onah v. The State (1985) 3 NWLR (Pt.12) 236 SC and
4. Nwokobia v. Nduka (1962) WNLR p. 251

There is no doubt the learned trial Judge has based his findings and conclusions in this case on circumstantial evidence.

Circumstantial evidence usually is contrasted with direct evidence. By direct evidence as in this case, there must be the evidence of an eyewitness of the incident of murder. By circumstantial evidence it means indirect evidence or existence of some facts from which an inference of a true fact can be made.

It is trite law that circumstantial evidence to lead to a conviction must point to one possibility only – that the offence was committed and that it was the accused who committed it. When such evidence is capable of two interpretations one against and the other in favour of the accused, then there is no proof beyond reasonable doubt.

See the case of State v. Kura (1975) 2 SC p. 83; Chewmoh v. The State (1986) 2 NWLR (Pt.22) p. 331 and The State v. Nafiu Rahiu (1980) 1 NCR p. 47 at 71; 2 NCLR 293.

I do not agree with the appellant’s counsel that the learned trial Judge suo motu regarded the standard of proof in this case as circumstantial evidence. Rather the learned trial Judge based his conviction of the appellant on a very weak case of suspicion arising from circumstantial evidence. The learned trial Judge made so many conjectures in his findings of facts which border upon speculations. He really embarked upon a voyage of discovery; drawing on his imagination en route, and speculating as to what might have taken place – where there was no evidence on record as basis for his discoveries. He made the following conjectures where there was no evidence disclosing such speculations.

For example he said among his findings of facts

1. That the post mortem examination showed that the deceased was strangled to death with human hands – whereas there was no such evidence given by the doctor or any other witness.

The doctor after enumerating the bruises and injuries on the body of the deceased gave the cause of death as due to respiratory failure due to pressures in the area of the neck, and jaws. It was his opinion that the injuries could not have been self inflicted. Nobody gave evidence of strangulation with human hands. The human hands were introduced into the case by the learned trial Judge. Even then he failed to associate or connect the hands of the appellant with the “human hands”.

The trial Judge also held that there were signs of struggle on the deceased’s bed before she died when nobody gave this type of evidence.

Another fact discovered on the voyage of the trial Judge was that after the deceased was killed, a rope was put round the neck of the deceased and then tied to the bamboo ceiling. This finding of fact was nowhere supported or revealed in the whole evidence of all the P.W.s. There is no evidence to show when the deceased was killed and whether or nor she died by hanging. The trial Judge has tried to suggest that death occurred before the rope was put round the neck of the deceased to depict death by hanging.

It is not part of the duty of a Judge to speculate upon what might have happened and substitute his own supposition for the evidence of witnesses on oath before him.

See the cases of:

Adelenwa v. The State (1972) 10 SC p.13;

Akpankere Apishe & 2 ors. v. The State (1971) 1 All NLR p. 50 and

Okpere v. The State (1971) 1 All NLR 1 at 9.

This is exactly what the learned trial Judge has done in this case in order to bring what he calls peculiar features and circumstances of this case within the purview of an unbroken chain of evidence pointing to the irresistible conclusion that the accused and no one else murdered the deceased.

It is true that there are cases in which circumstantial evidence may be the best evidence when it is capable of proving a proposition with the precision of mathematics but I am afraid this is not the case here. An inference of the guilt of the accused cannot be drawn from mere coincidences and suspicions as the learned trial Judge has done in this case. It is my view that the evidence in this case is very inadequate to prove beyond reasonable doubt that the appellant was guilty of the offence of murder.

Coming to the issue of contradictions in the case of the prosecution, the evidence of P.W.3 on the event of 29/1/88 is at variance with the evidence of P.W.2 who also claimed to be present at the scene of the quarrel between the appellant and the deceased.

P.W.3 said she rushed to the scene when she heard an alarm on 29/1/88. On getting there she saw the 2nd accused (appellant) holding a stick.

She further stated that as she was pleading with the 2nd accused (appellant) to leave the deceased alone, P.W.2 came and took away the 2nd accused. In another breath P.W.3 again said P.W.2 took away the deceased and not the appellant. First of all the court didn’t say specifically which of these two statements of the P.W.3 he believed regarding who the P.W.2 took away from the scene of quarrel on 29/1/88.

In the evidence of P.W.2 when giving an account of the event of 29/1/88 under cross-examination thus inter alia:-

“On 29/1/88 I did not see the 2nd accused (appellant) but the deceased herself told me the 2nd accused had hit her.

I was the only person who saw the quarrel but the quarrel did not start in my presence.”

Inspite of the above material contradictions in the evidence of these 2 witnesses the learned trial Judge went on to believe both of them as reliable and truthful witnesses.

Apart from the fact that neither of the 2 witnesses (P.W.2 and P.W.3) witnessed the assault that took place, one rushed to the scene on hearing an alarm and met the appellant with a stick, the other only saw the appellant and the deceased exchanging words. None of them saw what happened. P.W.2 said he was the only person who saw the quarrel of 29/1/88.

The learned trial Judge did not distinguish between these two pieces of evidence but simply went on to believe the two contradictory witnesses.

This in my view are material contradictions which have not only weakened the case for the prosecution but have also erased from record any credible evidence of circumstances which could lead to the conviction of the appellant.

I failed to see the evidence anywhere in the records or any peculiar features of this case from which the court can draw the inference that no one else but the appellant knew where the deceased kept her key. This in my view is a very wrong and unfair inference especially where evidence showed that many other relations lived in the same compound with the deceased.

The learned trial Judge, I hold was wrong in drawing the inference that it was the appellant and no one else who opened the deceased’s room and strangled her to death.

This in my view is a very wrong inference when there is no iota of evidence direct or indirect to suggest such a situation. Those unreasonable and wrong inferences are conjectures by the learned trial Judge in this case.

For the above reasons I hold that the prosecution has failed to prove the charge of murder of Emily Oriaka against the appellant. Appeal is allowed and conviction of the appellant is quashed. The order of Death Sentence by hanging passed on the appellant by the Agbor High Court Judge is hereby set aside and in its place an acquittal is entered for the appellant.

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Other Citations: (1994)LCN/0216(CA)