Alfred Aigbadion V. The State (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N. 

The appellant was charged in the High Court of Edo State, sitting in Benin City, with the murder of his girlfriend – Victoria Ojo, on the 5th day of January 1993. He was found guilty of the offence and was sentenced to death by the learned trial judge (Edokpayi, J.)

The case for the prosecution at the trial was that the appellant and the deceased were friends. During the night of the 4th day of December, 1993 they were together in the room occupied by the appellant at No. 21 Uselu/Lagos Road, Benin City. The appellant stopped a taxi early in the morning about 5.00 a.m. on the 5th day of December 1993 to take the deceased to the Central Hospital Benin City. The deceased was taken to the hospital. On the 17th day of December 1993, a post-mortem examination was conducted in the hospital mortuary on the corpse of the deceased by Dr. Suleiman Abu, (PW 3) Chief Consultant Pathologist at the Central Hospital. The body of the deceased was identified to him by one John Ojo, P.W .2. a brother of the deceased. On examining the body, P.W.3 found that “rigor mortis has passed away. There was a groove (a depression mark) on the neck. In the front. the groove was Oat and it had a grey base. The depth of the groove was about 3 millimetres. There was no ligature attached. It was just a groove (a depression mark). From the front this groove extended upwards and backwards at an angle of thirty degrees to the back of the neck where it disappeared behind the left ear lobe. On the left from it went upwards and backwards at the same angle of thirty degrees to the back to the same left ear lobe where it again disappeared. Every thing was to the left. Both eyes were covered with blood under what is called conjuctival. The tongue protruded between the clenched teeth. The larynx, trachea, the pleural that covers the lungs and the pericardium that covers the heart were covered with showers of spots of haemorrhages. The face generally looked puffy. There were three deep marks on the right side of the neck as made by end of the digits of the finger … The dissection of the neck showed moderate bruising of the muscles of the neck which also affect the top of the voice box … All the other systems of the corpse were examined and they were normal.’”

When John Ojo (P.W.2) was informed of the death of the deceased he went to the mortuary at the Central Hospital. Benin City, where he saw her corpse. On the 5th day of January, 1993 he went to Ogida police station, Benin City and lodged a complaint about the death of the deceased. Police Sergeant Nyene Franklin, P.W.4 was assigned to investigate the case. He was taken to the appellant’s house by P.W. 2 where he invited the appellant to the police station. At the police station the appellant was charged with the murder of the deceased. The appellant volunteered a statement under caution – (Exhibit B) in which he stated that the deceased had been his girlfriend. That although they both lived. in Benin City and belonged to the same village – Ikenobore, each one stayed at his separate house in Benin City. On the 5th day of December, 1993 (sic) the Appellant and the deceased left Ikenobore together and returned to Benin. That on arrival in Benin they went to the house of the appellant together. That they went to bed later at about 1.00 a.m. on the 6th of December, 1993 (sic) the deceased woke up the appellant and complained that she was suffering from stomach ache. That at about 5.00 a.m. the appellant hailed a taxi to take her to the Central Hospital. That the deceased was carried into the taxi by the appellant who was assisted by a co-tenant of his. That all the other co-tenants in the house were aware of the deceased’s illness at the that she was being taken to the hospital. That the appellant obtained a patient’s card at the hospital from one Johnbull who was an employee of the hospital. That the appellant became a friend of the deceased in 1990 and they had a minor quarrel only once over the money he gave her for Christmas celebration in 1990. That the deceased has a child for another man whom the appellant had never met. That the appellant had no reason or cause to strangulate the deceased. The investigation of the case was transferred from P.W. 4 to Daniel Iwerieboh (P. W.I) now a retired Inspector of Police, on the 6th day of January, 1994. He decided to take another statement from the appellant under caution (Exhibit A). In the statement the appellant stated as follows. I left Ikenobore village to Benin City at about 4.30 p.m. while she arrived in my house at about 9.00 p.m. of same 3/12/93. I took my bath with her and we went to bed. I had sex with her once (sic). At about 2.00 a.m. she started complaining about stomach pain. I enquired from her what happened. she told me that it is the usual stomach pain. She had been having stomach pain. I went outside and looked for a vehicle at about 5.00 a.m. of 4/12/93 I got a vehicle and I conveyed her to Central Hospital Benin City where she was certified dead. She did not die in my house. I cannot tell whether she died on her way to the hospital because I was not a doctor. It was in the hospital that she was certified dead by the doctor. I did not poison her. I did not administer any drug on her when she started complaining of the stomach upset. As I was in the ward with the corpse, the doctor told me to go outside and my relations later informed me that she is dead (sic). I decided to go and inform Solomon who later told Ighowonyi and they went to our village to tell the deceased’s family about the incident. I was in Ighowonyi’s house yesterday 5/1/93 when police came and arrested us that we know (sic) the cause of Victoria’s death. When she was in my house. she was rolling on the ground. She did not vomit and she did not stool, (sic).”

The case for the defence is based on the testimony of the appellant only. He testified that the deceased has been his lover secretly without the knowledge of her parents. He denied killing the deceased. He admitted that they both returned to Benin City from Ikenobore, They went to bed together at about 1:00 p,m. That between 1.00 and 2,00 a.m. the deceased woke up from sleep and informed him that she had stomach pain. He sympathised with her. After that she began to roll on bed. Two of his co-tenants in the house sat with him and were showing sympathy to the deceased. At about 5.00 a.m. he stopped a taxi in front of his house. Himself and the two co-tenants took the deceased into the taxi which conveyed her and him together to the Central Hospital. On arrival at the hospital. he obtained a patient’s card in her name. The card was issued by one Johnbull whose surname he could not remember. Johnbull was a member of the staff of the hospital and was working at the counter. After obtaining the card the nurses asked him to wait for the doctor. It took about two hours before the doctor arrived and certified the deceased dead. He said that he did not know at what time she died but that she died at the Central Hospital and that he did not strangle her to death.

Under cross-examination the appellant said that he did not know Johnbull before obtaining the patient’s registration card from him, He said that he was alone

with the deceased up to 1.00a.m. in the night in his room before the deceased began to have stomach pain. That he was joined in his room by his two co-tenants from about 1.00a.m.to 5.00a.m to look after the deceased. The co-tenants accompanied him to the hospital when conveying the deceased there in the taxi, He denied knowing one Emmanuel mentioned in the testimony of P.W.4 to be the father of the deceased’s child.

In his judgment, the learned trial judge rejected the appellant’s defence he accepted the evidence of the Chief Consultant Pathologist (P.W.3). Learned trial judge considered the evidence called by the prosecution to be circumstantial. He ended his judgment by summarising thus -“On the whole. I accept the evidence of the prosecution witnesses and reject the evidence of the accused person when he said the deceased died of stomach ache and when he said that he did not strangle the deceased to death. I find as a fact that the accused person strangled Victoria Ojo to death in circumstances which amount of (sic) murder. In consequence. I find that the prosecution has proved its case of murder against the accused person beyond reasonable doubt.” (parenthesis mine)

Aggrieved by the decision the appellant appealed against the conviction by the learned trial judge to the Court of Appeal. Benin Division. The appeal which was heard by Achike. JCA, as he then was, together with Akintan and Rowland. JCA, was dismissed. The appellant, therefore, appealed further to this court.

Appellant’s brief of argument in this court was at first prepared by Emmanuel C. Ukala. Esq. of counsel and was filed on 8th April. 1997. However, this was substituted with another brief prepared by Alhaji F. A. Oso which was filed with leave on the 11th day of October,1999. The respondent’s brief of argument which as filed on the 3rd day of December, 1999 is in reply to the latter brief filed by Alhaji F. A. Oso. The reason for all this is that the notice of appeal filed by the appellant on the 15th January, 1998 from Benin prison contained two grounds of appeal which Alhaji F. A. Oso considered incompetent. He, therefore, applied to this court for inter alia extension of time to appeal on fresh grounds of appeal. Leave was granted and he filed the appellant’s brief of argument in support of the three grounds contained in the notice of appeal which he filed on behalf of the appellant.

Two issues for us to determine have been postulated in appellant’s later brief. They are:

i. Whether the evidence of PW3, a doctor Abu. was full-proof of the case against the appellant by circumstantial evidence.

ii. Whether the decision of the High Court was properly sustained by the court below.”

For the respondent, only one issue has been formulated. It is –

“Whether there is sufficient circumstantial evidence to sustain the charge of murder preferred against the appellant.”

At the hearing of the appeal before us on the 6th day of January 2000 neither of the parties appeared or was represented by counsel. We, Therefore, took the appeal as argued on the parties’ briefs of argument pursuant to Order 6 rule 8 (6) of the Supreme Court Rules. 1985.

As all the issues raised by the parties meet the grounds of appeal in the notice of appeal filed by the appellant’s counsel after obtaining the courts leave to do so. I will consider the issue formulated by the respondent together with the appellant’s issue No. 1.

Appellant contends that the plank and super-structure on which the prosecution’s case was based at the trial is evidence of P.W 3 which the learned trial judge accepted in toto and the Court of Appeal supported the finding. He argues that the wounds found on the deceased by P.W.3, which was said to be the cause of her death, had not shown how the deceased came by them and consequently the piece of evidence is vague, ambiguous and equivocal. The evidence did not support the prosecution’s case, which is circumstantial, because it was not so conclusive as to irresistible lead to the guilt of the appellant. It is further argued that the conclusion reached by the Court of Appeal on the testimony of P.W 3 cannot be cogent and compelling in view of the ambiguity surrounding the evidence. The appellant canvassed that the prosecution failed to search the house of the appellant in order to find the ligature or rope or clothing with which the deceased

was said by P.W 3 to have been strangled. Appellant contends that it is the duty of the prosecution to prove it’s case beyond reasonable doubt irrespective of the fact that the evidence relied upon by the prosecution is circumstantial: and there is no onus on the accused to prove his guilt – Ukorah v. The State ( 1977) 4S.C. 167 and Lado v. State (1999) 9 NWLR (Pt.619) 369; (1999) 70 LRCN 1705 at p. 1729B –

On the appellant’s statement that the deceased complained to him of stomach ache, which was her usual illness the prosecution failed to investigate the truth or otherwise of this by contacting the deceased’s parents: and yet the trial court wrongly made it the responsibility of the appellant to do so. when it stated

” The statement of the accused person to the police and his evidence in court are suggesting the fact that Victoria Ojo died of stomach ache which used to worry her. This suggestion is not backed up with any evidence from any relation of the deceased or any medical doctor. The only medical evidence which I accept as uncontradicted evidence on that issue of stomach ache is that of Dr. Suleiman Abu. the Chief Consultant Pathologist in the Central Hospital Benin City, who examined the corpse of Victoria Ojo.”

The Court of Appeal wrongly accepted this finding by the trial Court, it said.

Appellant complains also against the finding by the trial court on the testimony of P.W. 4 when it held-

“I do not believe that Victoria Ojo died a natural death and I do not believe that she died of any stomach ache. I do not believe that Victoria Ojo died from any other cause other than by strangulation by ligature. Police Sergeant No. 129386 namely Nyelle Franklin who testified as the fourth prosecution witness in this case gave these pieces of evidence which I believe.

and appellant classifies the evidence as follows-

“(i) That the deceased had already died before her corpse was rushed to the hospital.

(ii) That there was no card to show that the deceased was admitted in the Central Hospital before her death.

(iii) That the deceased was in sex love (sic) with one Emmanuel and that the accused person threatened to kill the deceased if she refused or failed to dissociate herself from Emmanuel or if she failed to discontinue her love with Emmanuel. All efforts made by the witness to trace Emmanuel failed.”

He then argues that P.W. 4 did not state in his testimony how he came by these facts nor name the persons from whom he got the information. It is submitted that such evidence should not have been believed by the trial court. That the points raised in Exhibits “A” and “B” by the appellant were unresolved and the courts below wrongly placed on the appellant the duty to resolve them. It is canvassed that the chain of the evidence adduced by the prosecution is incomplete and therefore the appellant should not have been convicted -Adio v. The State, (1986) 2 NWLR (part 24) 581 and Oladejo v. The State , (1987) 3 NWLR (Pt. 61) 419. In reply, it is submitted on behalf of the respondent that the circumstantial evidence adduced by the prosecution was cogent and compelling and irresistibly pointed to the guilt of the appellant. That at all material time before the deceased died and up to the time the corpse was deposited at Central Hospital. Benin City, appellant was with the deceased and he was the last person to have been seen with her when she was alive. Therefore, the evidence adduced by the prosecution negatived any possibility of someone else strangulating the deceased – Peter Igho v. The State, (1978) II N.S.C.C. 166. That the statements by the appellant to the Police (Exhibit A & B) and his testimony at the trial have not suggested that any other person, apart from him, had access to her and the opportunity to kill her. That the evidence of P.W. 3 expressly excluded the possibility of the deceased dying from stomach ache or committing suicide as all other systems of her body, apart from his findings, were normal. It is argued that the ligature used in strangulating the deceased needed not to be produced by the prosecution since it would not add any weight to the evidence adduced by the prosecution. On the testimonies of P.W.1 and P.W. 4, it is submitted that nothing: was wrong: with their evidence. That it was the responsibility of the appellant to submit the names of his co-tenants who stayed with him in his room from 1.00 a.m. to 5.00 a.m. in the night or deceased’s illness and accompanied him to the hospital with the deceased but he failed to do so. It is submitted that the failure of the tenants at appellant’s house to make statement to P.W.1 was usual as the tenants were abhorred by the action of the appellant in killing a person that was closely intimate to him. That it would have been a wild goose chase for the police to attempt to trace the co-tenants whose names were not revealed to them by the appellant in either Exhibits A or B or in conversation with the police. It is contended on the authority of the decision in Peter Igho v. The State (supra) at p. 167 that where the facts accepted by a trial court are circumstantial and call for an explanation and none is forthcoming from the accused, such circumstantial evidence is sufficient as proof of the offence charged. Finally, it is submitted that the evidence adduced by the prosecution, though circumstantial, is unequivocal, positive and pointed irresistibly not only to the fact that the deceased was strangulated to death but also that no one else other than the appellant committed the act – Nwaeze v. The State (1996) 2 NWLR (PI. 428) I.

Now there can be no doubt that it is trite that in a criminal case a conviction based on circumstantial evidence can be obtained by the prosecution. However, to do so the evidence adduced by the prosecution must be positive, unequivocal and lead irresistibly to the conclusion that it is the accused person that commits the offence charged. In the present case there is no doubt that the deceased was at all material time in company of the appellant before she was taken to the hospital on the 4th day of December, 1993 where she was pronounced dead. The questions the prosecution must prove are: what caused the death of the deceased And who caused the death

The prosecution alleged that she died from strangulation and that the appellant was her killer. Since the onus is on the prosecution to prove this beyond reasonable doubt, the evidence adduced by the prosecution needs to be examined critically in order 10 see if the cause of death had been established. The opinion expressed by P.W.3 who conducted post-mortem examination on the body of the deceased was relied upon by the prosecution. His findings have been stated earlier in this judgment. His opinions from the findings are contained in his testimony as follows:-

The over-all picture of all I saw on the corpse was that of strangulation with a ligature (or rope) In my opinion the deceased died of strangulation by ligature …. The wounds and all I saw on the corpse is consistent with strangulation with a ligature which can be a rope or piece of cloth. The wounds on the corpse could not have been self-inflicted. From all I found on my examination of the corpse the deceased could not have committed suicide. There was no problem with the stomach of the deceased. The deceased did not die of any stomach ache or from any other cause other than by strangulation by ligature.” The case for the defence is that the deceased suffered from stomach ache and she was taken to the hospital under that condition from which she died. The evidence of P.W.3 just quoted negatived the fact that there was anything wrong with the stomach of the deceased or that she died as a result of the stomach ache. The learned trial judge preferred the prosecution evidence on this point to that of the defence as he was entitled to do, being a finding of fact. However, there is one aspect of the opinion evidence given by P.W 3 under cross-examination which the learned trial judge did not seem to advert his mind to. P.W.3 said there under – “It is very difficult to say whether the wounds were self inflicted or inflicted by someone else.” This clearly contradicts the positive opinion expressed by the witness in his evidence-in-chief that – “The wounds on the corpse could not have been self-inflicted. From all I found on my examination of the corpse the deceased could not have committed suicide.”‘ The effect of this contradiction is: should the learned trial judge rely on the evidence of P.W. 3 to hold that it was the appellant that committed the death of the deceased by strangulating her It is the duty of the prosecution to explain the contradiction in the doctor’s evidence either under re-examination of the witness or in their address to the court after the defence closed their case. This the prosecution failed to do. This brings me to the second question which 1posed. Who caused the death The doctor’s answer under cross-examination is that it is difficult to say whether it was the deceased or the appellant. There is no admission by the appellant that he strangulated the deceased. The appellant was categorical in his testimony when he: said under examination-in-chief- “I did not kill Victoria on 5/12/93 …. I did not strangle Victoria Ojo to death.”‘ It is clear. therefore. that the prosecution had not established conclusively at the trial that it was the appellant that killed the deceased beyond any reasonable doubt. The Court of Appeal was in grave error when it misdirected itself by holding (per Rowland, JCA) thus –

“It is the law that suspicion no matter how strong cannot by itself establish the guilt of the accused. See Igboji Abieke & nlor. v. The State. (1975) 9 – II S.C. 97 at p. 104. The account of strangulation arising from the autopsy as furnished by P.W. 3 is eloquently vivid, lucid, detailed and satisfactory as they are intimidating, compelling and unchallenged. Consequently. even in the absence of direct evidence, the circumstantial evidence at the death of the deceased by strangulation is so cogent and compelling that they lead to the irresistible conclusion that the appellant who had the last opportunity of being in the company of the deceased committed the offence charged. See Saka Oladejo v. The State, (1987) 3 NWLR (P1.61) 419 and Opoola Adio & Anor v. Stale (1986) 2 NWLR (PI. 24) 581 It follows that I am satisfied that the prosecution proved their case to the hilt in the sense that they proved their case beyond reasonable doubt. (italics mine).

Since the doubt lingers from the cross-examination of P.W. 3 that either the deceased or the appellant could have caused the death, the doubt must be resolved in favour of the appellant. It is pertinent to mention that the investigation of this case by the police. That is P.W.1 leaves much to be desired. The accused said in his statement Exhibit A that his co-tenant helped him together with the taxi driver to carry the deceased to the taxi. Attempt to trace the co-tenant was half-heartedly carried out. The mother of the so-called co-tenant stayed in the same house as the appellant and she said that the “co-tenant” lived elsewhere and used to visit her only. No further effort was made by the police to trace him. Again the appellant mentioned Johnbull in thesame statement. No serious investigation about this was conducted to find out if he existed; and if so. whether he issued patient’s registration card to the appellant. It seems also the appellant was not asked by the police to produce the card which he said was issued to him by Johnbull. If at all. The taxi driver concerned could have been traced too by the police to confirm if deceased was alive when she was put in his taxi but no evidence was given if this was done. All these are necessary steps which ought to have been taken if the prosecution were to prove their case against the appellant beyond reasonable doubt. In other words the investigation of the case was shoddy and incomplete. Any defence Pull up by an accused person whatsoever whether stupid or spurious must be investigated thoroughly in order to render it false or unlikely. It is when this happens that the trial court will be able to reject it.

Be that as it may, the next issue for determination is whether the decision of the trial court was properly sustained by the Court of Appeal. This can be disposed of summarily for it has been answered already. The answer is in the negative. In conclusion. I hold that the circumstantial evidence adduced by the prosecution against the appellant is neither unequivocal nor positive and it does not irresistibly lead to the guilt of the appellant. The appeal, therefore, succeeds and it is hereby allowed. The decisions of both the trial court and the Court of Appeal are set aside. The verdict of guilty of murder pronounced by the High Court against the appellant is hereby quashed and the sentence of death passed on him by the same court is also hereby set-aside. Consequently I find the appellant not guilty and he is acquitted and discharged.

SC.56/1999