Ayo Adegbite V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALINJE, J.S.C.
The Appellant in this appeal was arraigned on an information before the High Court of Ondo State, sitting in Akure, charged with the offence of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap 30, Vol. II Laws of Ondo State of Nigeria 1978. The particulars of the offence are that on or about the 7th day of November, 2009 at about 7.00 p.m along Ilu-Abo-Ajegunle Road, within the Akure Judicial Division did murder one Theophilus Afolabi by pouring acid on him. Appellant pleaded not guilty to the charge. During the trial that followed the plea of the Appellant, the prosecution called five witnesses and tendered various documents in evidence which were admitted and marked Exhibits A-O and R. The Appellant testified in person and called five other witnesses. At the end of the trial and in a considered judgment which was delivered on the 27th of February, 2013, Kolawole J found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant’s appeal against the judgment of the trial Court was dismissed by the Court of Appeal
on the 28th of January, 2015. The appeal before this Court is against the decision of the Court of Appeal, Akure Division. The Appellant’s amended notice of appeal dated 29th June, 2015 and filed on the 16th of October, 2015, but deemed filed on the 6th of April, 2017 contains six grounds of appeal.
Parties filed and exchanged briefs of argument. Appellant’s brief of argument settled by Rotimi Aladesanmi Esq of counsel is dated 6th October, 2015 and filed on the 8th October, 2015, but deemed filed on the 6th April, 2017. At page 7 of the said brief a single issue is formulated for determination of this appeal and it reads thus:-
“Whether the prosecution proved its case against the Appellant beyond reasonable doubt, to justify his conviction for the murder of the deceased.”
The Respondent’s brief of argument, settled by Aderemi Olatubora, learned Attorney-General of Ondo State is dated and filed on the 20th September, 2016, but deemed filed on the 6th April, 2017. At page 2 of the said brief a single issue is also formulated for determination of this appeal and it reads thus:-
“Having regard to the quality of evidence led at the trial Court
whether the Court of Appeal was not right to have affirmed the conviction and sentence of the Appellant for the offence of murder.”
Appellant’s reply brief of argument dated 30th September, 2016 was filed on 4th of October, 2016 and was deemed properly filed by this Court on the 6th April, 2017. The sole issue formulated by the parties are similar. I will treat them together.
The facts of this case are simple and straight forward. Theophilus Afolabi the deceased was a resident of Ajegunle. He lived on the same street with the Appellant who he had known very well.
On the 7th of November, 2009 he went to Ilu-Abo a neighbouring village to visit his bosom friend Chief Tayo Falana, alias Teacher. His friend was not at home and so he decided to return home. On his way at about 7.00pm, he was bathed with acid by someone who came out from the bush. He managed to get to the State Hospital Akure where he was admitted for treatment. The following day, being 8th of November, 2009, his wife who visited him at the hospital, said the deceased told her that it was Appellant that attacked him with acid. She reported what her husband told her to the
police who subsequently arrested the Appellant.
In arguing the sole issue for determination of this appeal, learned appellant’s counsel submitted that the prosecution’s case was totally founded on mere suspicion. In a further argument, learned counsel submitted that the failure of the prosecution to call vital witnesses, especially those who came to the scene soon after the attack, including one Ogoja man who the deceased’s wife testified that he helped convey her husband to the State hospital Akure, is fatal to the prosecution’s case. In aid, learned counsel cited Ochiba v State [2011] 48 NSCQR 1 at 32 33; Alake v State [1992] 9 NWLR [Pt. 265] 260;Edoho v State [2004] 5 NWLR [Pt. 865] 17; Igben v State (2015) 8 WRN 94 at 122; Kuda v. State (1991) 8 NWLR [Pt.208] 134 at 147;Odofin Bello v The State [1967] NMLR 1. Still in argument, learned counsel submitted that the issue as to whether it was the appellant who attacked the deceased or not would have been easily resolved if the appellant had been taken to the hospital to hear the deceased’s accusation and to make necessary input to the discussion and/or accusation. Learned counsel accused PW1 of
forging Exhibit E, which is the statement made by the deceased on his hospital bed, as he submitted that the signature the said exhibit is similar to the signature on Exhibit A, the statement made by PW1.
In his argument in reaction to the appellant’s submission that the failure of the prosecution to call vital witness is fatal to its case, learned Attorney-General of Ondo State submitted that all the vital and material witnesses required for the prosecution to establish its case were called. Learned Attorney General submitted that it is not within the purview of the prosecution to hunt for imaginary eye witnesses and it is also trite, according to the Attorney-General that the prosecution does not need to call a host of witnesses before establishing its case that will earn a conviction in a criminal trial. In aid, learned Attorney-General citedMichael Hausa v The State (1994) 6 NWLR (Pt. 350) 281. On Exhibit E, learned Attorney-General submitted that it was properly admitted in evidence, even though the Court did not rely on it as a dying declaration.
Although the burden on the prosecution is to prove its case beyond reasonable doubt, the
prosecution has a discretion to call on those witnesses it requires to establish its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. I have also not come across any rule of law which imposes an obligation on the prosecution to call a host of witnesses in proof of its case. See Adaje v The State (1979) 6 – 9 SC 18: Okonofua v State (1981) 6 – 7 SC 1; Saidu v State(1982) 4 SC 41; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Ugwumba v State (1993) 5 NWLR (Pt. 296) 660; Udo v State (2006) 15 NWLR (Pt. 1001) 179.
However, the law is settled that for the prosecution to prove its case beyond reasonable doubt, it must call vital witnesses whose evidence may determine the case one way or the other. Failure to call such vital witnesses is fatal to the prosecution’s case. Learned counsel for the Appellant raised this issue at the trial Court in his address at page 52 paragraph 4 of the printed record of this appeal as follows:-
Similarly, PW3 and PW5, in their respective oral evidence and extra-judicial statements, the PW3 said in his extra Judicial statement dated 11th December,
2009 and marked Exhibit E that he obtained the statements from the witnesses at the scene of the crime, but none of these statements were tendered, neither the makers of the said statements at the scene of the crime were called to testify or confirm that the deceased mentioned the name of the Accused Person as the person who bathed him with acid.”
In the same address on behalf of the Appellant at pages 52 – 53 of the record, learned counsel did not believe the evidence of PW3 whom he described as most unreliable witness in the following words:-
PW3 could best be described as most unreliable witness as his evidences (sic) are self-contradictory, unreliable, doctored and fabricated to suit the purpose he wanted to achieve how can an I.P.O who was saddled to investigate a very serious matter of this nature tell lies while on oath that he went to the scene if the crime of which he recorded some statements from the witnesses and no single one was tendered or called to testify at the trial.
Clearly from these passages, learned counsel for the Appellant did not believe that there were witnesses at the scene of the crime
that were known to the prosecution, to be so vital as to be called to testify. Since the learned counsel for the appellant did not name any vital witness and did not believe that the Investigating Police Officer met some people at the scene of the crime, who were present and witnessed the commission of the crime, his argument that the prosecution did not call vital witness is baseless. The ‘Ogoja boy’, who learned counsel said, was mentioned by the deceased’s wife as someone who conveyed her husband to the hospital is not fixed to any address as will readily be invited by the prosecution. ‘Ogoja boy’, does not mean a particular person. To that extent, there is no way the prosecution could be accused of failing to call its vital witnesses. The prosecution in my view called sufficient number of witnesses as it required for proof of its case.
Now, Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.Section 135(2) of Evidence Act 2011 also provides as follows:
The burden of proving that any
person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
Section 36(5) of the Constitution and Section 135(2) of the Evidence Act 2011 referred to hereinabove have placed squarely the burden of proof in criminal cases on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v The State [1993] 7 NWLR (Pt. 307) 511 at 531 para A C; Sola V. The State(2005) 5 SC (Pt.1) 135.
The Appellant in this appeal, was charged with the murder of one Theophilus Afolabi, by bathing the deceased with acid. For the prosecution to establish its case, it must prove the following ingredients:-
- That the death of Theophilus Afolabi has actually occurred.
- That the death was caused by the Appellant.
- That the act that led to the death of the deceased was done with the intention of causing death.
- That the Appellant knew or had reason to know that death would be the probable consequence of his act.
See Ogumo v The State (2011) NWLR (Pt.1246) 314; Giwa V. The State (1996) 4 NWLR (Pt.443) 375 at 337; Akpan V. The State (1994) 25A LRCN 137 at 146; Adekunle v The State (2006) 43 WRN 1 at 24; Edwin Ogba v The State (1992) 2 NWLR (Pt.222)164 at 198 paragraph G; Onah v The State
(1985) 3 NWLR (Pt. 12) 236. On the first ingredients, both parties have agreed that Theophilus Afolabi is dead. There is therefore no dispute in this area. The question is whether the death of Theophilus Afolabi was caused by the Appellant. On the 2nd ingredient, the Lower Court in its lead judgment delivered by Owoade JCA and concurred by Danjuma and Abiriya JJCA, made reference to the testimonies of prosecution witnesses, especially the testimony of PW1 and came to the following conclusion: –
“In my opinion, the learned trial Judge was right to have found that the deceased through the evidence of PW1 to have found that the deceased made an admissible dying declaration and also to have relied on the same to link the death of the deceased with the action of the Appellant.” (See page 211 paragraph 2 of the record of appeal).
This view of the Lower Court is in accord with the trial Court’s conclusion at pages 116 – 117 of the record, where the learned trial Judge held:-
After a careful appraisal of the evidence, I have no doubt in my mind that it was the accused that attacked the deceased. Afolabi Theophilus along the
Ilu-Abo/Ajegunle Road on the 7th of November, 2009 at about 7.30pm, the attack caused the injuries which the deceased did not recover from. He succumbed to the injuries and died on 6th December, 2009.
My view would still not change even if I err in considering the statement made by the deceased to PW1 on 5th December, 2009 as dying declaration… There is no evidence that the substance was accidentally poured on the deceased. A person is criminally liable for the consequence of his action and/or his inaction. In this case the accused intentionally attacked the deceased with substance that severely burnt him. The injury the deceased suffered was very severe. The effect of this conclusion is that the prosecution has proved all the ingredients of the charge or murder….”
This is a concurrent finding of the High Court and the Court of Appeal. This Court has held in a myriad of cases that where there is a concurrent finding of facts by the two Lower Courts, it will not interfere unless exceptional circumstances have been established. Such exceptional circumstance as would warrant interference with such concurrent finding of facts by the Lower
Courts, is where the Appellant satisfies this Court that there has been an error in the substantive and/or procedural law, or that there has been a miscarriage of justice or that the finding is perverse. See Bakare v State (1987) 1 NWLR (Pt. 52) 579;Adio v State (1986) 2 NWLR (Pt. 24) 581;Puncent v. State (2002) 18 NWLR (Pt. 798) 49; Amusa v State (2003) 4 NWLR (pt.811) 595; Awolaja V. Seatrade (2002) 4 NWLR (pt.758) 520. Has the Appellant established exceptional circumstances for such interference in the instant appeal
Learned counsel does not seem to be interested in satisfying the Court that exceptional circumstances exist. He is merely repeating the argument which the two Lower Courts had considered and made pronouncement upon.
Learned counsel for the Appellant admitted at page 8 of the Appellant’s brief of argument that the deceased and the Appellant had known themselves very well. This is what he said:-
It was not in dispute that the deceased and the Appellant were well known to each other. Consequently it accords with the normal cause of human behavior and conduct for the deceased to mention the Appellant’s name
specifically, and with certainty, as his assailant. Indeed upon being attacked by the Appellant, it was expected that the deceased would have shouted the Appellant’s name on the fateful evening. All witnesses before the trial Court referred to the Appellant as Ayo Adegbite except the PW1, who claimed the Appellant had always been known as Ayo Ngbada….. The deceased witnessed the attack on himself and there were eyewitnesses around at the time of the attack. This fact was confirmed by PW3 in his statement Exhibit 12…..”
The argument of the learned counsel is speculative in that it was not only the Appellant that was known to the deceased in the village. The assertion that it accords with normal cause of human behavior and conduct for the deceased to mention the Appellants name because they knew each other is not only speculative, but there is no authority that conclusively point to that fact that it is the normal cause of human behavior for an individual to do so. In Agip (Nig) Ltd V. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 413 paragraphs B D, this Court said:-
“It is trite principle also that a Court should not
decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation.”See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun V. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu V. Okulaja (1996) 9 NWLR (Pt.475) 668.
PW 3 never stated in his evidence that there were eye witnesses to the commission of the crime. This is what he said:-
“He told me that he went to Ilu-Abo to visit a friend popularly called Teacher (PW2) and that he did not meet PW 2 at Ilu-Abo. When he was returning to Ajegunle suddenly the accused came out from the bush and that he thought he was coming to greet him but instead he poured on his face a hot substance. He said he shouted for help and he said that he knew his attacker. He was later taken to the hospital. I reduced his statement into writing. The victim told me that the accused and his friend PW2 had problem relating to log woods. This is the statement I recorded from the victim who is now dead.”
The trial Court examined the testimonies of
PW1, PW2 and PW3 which showed that the deceased was constant in his assertion that it was the appellant that attacked him with the acid that finally led to his death. It was also well established, as found by the trial Court that the appellant and the deceased had known themselves up to the extent of knowing each other’s voice as such the deceased could not have mistaken his voice when the attacker told him that he (the deceased) was reaping the effect of their past acrimony. I am of the view that the Lower Court was right in upholding the trial Court’s findings. The Lower Court was also right when it refused to accord probative value to the newspaper report and radio interview as newspaper report is not always the truth of its contents, and the prosecution had no burden to tender the newspaper report in evidence. On the defence of alibi which was raised by the Appellant, the Lower Court said:-
In the instant case, the Appellant only raised the defence of alibi in his third statement to the Police Exhibit L, and that was after he became aware of the death of the deceased. He had ample opportunity to have raised the defence in his earlier
statements to the police Exhibits R and Y but he did not.
These facts greatly weaken the Appellant’s defence of alibi. In any event, the unequivocal declaration of the deceased that the Appellant was his assailant pinned the Appellant to the scene of crime. This is because the defence by the accused that he was elsewhere at the material time of the offence was committed is destroyed by unequivocal evidence tying him to the locus in quo as one who committed the offence.”
I absolutely agree with the views expressed by the Lower Court in so far as the defence of alibi is concerned. It must be timeously raised as soon as the accused who seeks to rely on the defence of alibi is arrested and the offence for which he is charged is explained to him. In the instant case the appellant only raised the defence of alibi in his third statement to the police Exhibit L. I therefore agree with the Lower Court that the defence is not available to the Appellant. I agree with the Lower Court that the act that led to the death of the deceased was carried out by the Appellant.
The last question is whether the act or omission of the Appellant which caused the death
of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence The learned trial Judge found that the Appellant acted intentionally when he poured the acid on the deceased, with knowledge that death or grievous hurt would be the probable consequence of his act. This finding was rightly, in my view, upheld by the Lower Court in the following words:-
“In the instant case, there is no controversy on (a) and (c) above. In other words there is no issue as to the fact of death of the deceased or that the assailant of the deceased intended death or grievous bodily harm to which death was a probable consequence.
For all I have said, I have no reason to overturn the decision of the Lower Court. The sole issue formulated for determination of this appeal is therefore resolved against the appellant and in favour of the respondent. I find no merit in this appeal which shall be and it is hereby dismissed The decision of the Lower Court is hereby affirmed.
SC.182/2015
