Chief Obade Oje Vs The State (1972)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
At the High Court of the Ubiaja Judicial Division in the Mid-Western State, the accused was convicted on 24th December, 1971 of the murder of one Theresa Godwin, contrary to section 257(1) of the Criminal Code, Cap. 28, Vol. 1 of the Laws of Western State 1959, applicable in the Mid-Western State and sentenced to death. We heard and allowed the appeal on 19th October, 1972, and now give our reasons therefore.
The facts of the case may be summarised as follows. The evidence of Raphael Egbeade (5th prosecution witness), the only witness called by the prosecution as to the identity of the accused, was that, at about 5 a.m. on 31st December, 1969, as he lay in bed in his house, he heard the voice of someone crying outside and saying “Onogie has killed me, Obade has killed me.” As the noise was coming nearer and nearer, he went to open his door and saw the accused (the Onogie) carrying somebody on his shoulder; the accused quickly dumped the person by the side of his house and started to run away. Fifth prosecution witness said that he gave chase shouting “Obade has killed somebody and dumped the person by my house”, until the accused ran into his own compound and the 5th prosecution witness “ran past the lane leading to the accused’s house and went on to the Military road-block” where he met one soldier, Igbakula Orohilega (2nd prosecution witness), to whom he reported the incident. Second prosecution witness then followed 5th prosecution witness to the scene where 2nd prosecution witness “pointed his torch-light at the person and they saw it was a woman. It was then that he (Raphael) recognised the person as Theresa, the daughter of Isibor, the 4th prosecution witness.” Fifth prosecution witness later reported the matter to the police at Uromi whence he was redirected to Ewohimi police station where he made a report. On his return home he found that the accused had already been arrested and taken away by the soldiers. Under cross-examination 5th prosecution witness said that, although the body of the deceased was carried on the shoulder, yet the face of the accused was not shielded by the body and that he saw the face of the accused. He also admitted that he was not friendly with the accused who had once beaten him up for taking sides with a tenant of 5th prosecution witness who was challenged on the ground of showing disrespect to the accused, and who had also imposed on 5th prosecution witness a fine for adultery with the wife of one Samson Inegbenebo (a councillor). He further deposed that the Onogie of Iromi had later settled the matter between them.
Mathias Unuareokpa (7th prosecution witness), the investigating police officer, described how the accused was brought to the Ubiaja police station on 31st December, 1969, by one Godwin (a soldier) and some other soldiers and “persons in mufty.” The next day the accused volunteered a statement (exhibit B).
The accused also gave evidence in his own defence. He said that he was a natural ruler and the Onogie of Ugbegun, that on the night of 30th December, 1969, he was in his palace with his family, that he slept that night with his wife, Onuwaghagbe, in her apartment till day-break. She testified to this effect. The accused said that on the following morning, as he was supervising his boys who were moulding blocks for him some 200 yards from his palace, about seven soldiers, including Godwin, set upon him, beat him up, stripped him naked and dragged him to a spot where they put him in a taxi-cab next to “a certain woman who had injuries on the body.” His hands were tied for about three hours and his fingers were stiff, so that he could not write his statement to the police until the following morning. The accused stated in his statement (exhibit B) that he was “in no way connected with the wounding of this woman in question.” It is pertinent to say here that 7th prosecution witness had under cross-examination admitted that throughout the course of his investigation it did not occur to him that somebody else might have committed the offence, that his enquiry concerning the background of the deceased revealed that she had just then had a baby and that on her return from her mother-in-law in Warri she had spent two days with her husband (Godwin) in Ugbegun before she went over to her father’s place in the same Ugbegun. Isibor Eichie (4th prosecution witness), the father of the deceased, said that the deceased came to him to complain about her mother-in-law, that as he was afraid to harbour her because the husband and his family might make trouble if he did since he (4th prosecution witness) had been paid the full dowry on her, he had sent her to report the matter to the Onogie, and that it was on the next day that he learnt that she had been killed. He said under cross-examination that he did not accompany her and that he did not know whether she went to her husband’s house that day or not. On this point the learned trial judge himself observed:-
“Of course, although it may be assumed that Theresa went to the accused in obedience to her father, it cannot be presumed-for that will be against common sense-that she went at all or even reached the palace of the accused. So, Isibor Eichie’s evidence, standing on is own does not implicate the accused at all.”
The learned trial judge went on to pose the question:-
“Having reviewed the evidence on either side, I find that the crucial question to answer is: Who was that man that Raphael Egbeade saw carrying someone on his shoulder, that man depositing the person by Raphael’s house, the man running back towards the Ugbegunj/Opoji road and followed for quite a while by Raphael, that man branching off at the lane leading to the palace of the accused”
After examining the possibility that 5th prosecution witness’s evidence against the accused might be one of mistaken identity, the learned trial judge concluded that he believed that it was the accused that 5th prosecution witness saw on the day in question. He accordingly proceeded to find the accused guilty of the murder of the deceased.
From that decision the appellant has appealed to this court on the following grounds:-
“(1) The learned trial judge erred in law by attaching undue weight to the evidence of the 5th prosecution witness despite previous inconsistent statements made by him in respect of the same case in exhibit D touching upon the identity of the accused.
(2) The learned trial judge erred in law in failing to consider the defence of alibi set up by the appellant.
(3) The learned trial judge having held that ‘It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin’ erred in law in finding the accused guilty on the ground that ‘since the accused was seen to be carrying the injured woman, not with any aim of helping her, the only inferences to draw are that either he inflicted the injuries on her or he was a participes criminis and knew something of how those serious injuries described by the doctor came about.’
(4) The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”
Mr. Koku, learned counsel for the appellant, began by arguing ground 3 first. He said that the accused must be proved by the prosecution to have killed the deceased or to have taken an active part in the killing. The prosecution has failed to establish that the accused killed the deceased. He further argued that the doctrine relating to the responsibility of participes criminis under sections 7 and 8 of the Criminal Code of Western Nigeria does not apply and should not have been applied in the present case, because the charge as well as the evidence led throughout the proceedings was simply that the accused killed the deceased, not that he acted along with anyone else. Finally, learned counsel submitted that an appellate court, in a case involving homicide, must disregard the verdict of a trial court if the requisite degree of certainty as to the murderer is wanting: see The Queen v. Abdulahi Isa [1961] 1 All N.L.R. 668; Daniel Itodo v. The State (1968) N.M.L.R. 1; and The Queen v.Obiasa [1962] All N.L.R. 651, at page 658. We agree with this submission of learned counsel in view of the learned trial judge’s own finding as follows:-
“It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin.”
In arguing ground 1 next, Mr. Koku pointed out that there was a discrepancy between the deposition made by 5th prosecution witness at the preliminary investigation when he said the person being carried covered the face of the carrier, and the evidence given by him at the trial when he said that he in fact saw the face of the carrier (the accused). We think that there is substance in this submission of learned counsel when one considers exhibit D, the deposition of 5th prosecution witness at the preliminary investigation. Exhibit D reads:-
“I now say that I saw someone dumping a body. I knew it was the accused. The deceased was carried on the shoulder. The body of the deceased covered the face of whoever carried her. As soon as I shouted the person took to his heels.”
Learned counsel also drew attention to the fact that, whereas 5th prosecution witness said he could and did recognise the accused at 4 a.m. 5th prosecution witness and 2nd prosecution witness stated that they could recognise the deceased at 5 a.m. only with the aid of a torch-light. The learned trial judge, he finally submitted, should have rejected the evidence of 5th prosecution witness, who was shown to have had a grudge against the accused, as it was unsafe to found on such improbable pieces of evidence: Gabriel Sofolahan Joshua v. The Queen [1964] 1 All N.L.R. 1; R. v. Golder [1960] 1 W.L.R. 1169; 45 Cr. App. R. 123. Learned counsel chose, quite rightly in our view, to abandon ground 2 and not to argue ground 4 which he admitted was defective in that the words “weight of” had been wrongly inserted therein.
We agree with all the points put forward by the learned counsel for the appellant, and we think that they should have raised serious doubts in mind of the learned trial judge both as to the identity of the person who was seen carrying the deceased on the night in question and also as to who inflicted on the deceased the injuries that caused her death.
For these reasons we allowed the appeal on 19th October, 1972, set aside the conviction and sentence, and acquitted and discharged the appellant.
At the High Court of the Ubiaja Judicial Division in the Mid-Western State, the accused was convicted on 24th December, 1971 of the murder of one Theresa Godwin, contrary to section 257(1) of the Criminal Code, Cap. 28, Vol. 1 of the Laws of Western State 1959, applicable in the Mid-Western State and sentenced to death. We heard and allowed the appeal on 19th October, 1972, and now give our reasons therefore.
The facts of the case may be summarised as follows. The evidence of Raphael Egbeade (5th prosecution witness), the only witness called by the prosecution as to the identity of the accused, was that, at about 5 a.m. on 31st December, 1969, as he lay in bed in his house, he heard the voice of someone crying outside and saying “Onogie has killed me, Obade has killed me.” As the noise was coming nearer and nearer, he went to open his door and saw the accused (the Onogie) carrying somebody on his shoulder; the accused quickly dumped the person by the side of his house and started to run away. Fifth prosecution witness said that he gave chase shouting “Obade has killed somebody and dumped the person by my house”, until the accused ran into his own compound and the 5th prosecution witness “ran past the lane leading to the accused’s house and went on to the Military road-block” where he met one soldier, Igbakula Orohilega (2nd prosecution witness), to whom he reported the incident.
Second prosecution witness then followed 5th prosecution witness to the scene where 2nd prosecution witness “pointed his torch-light at the person and they saw it was a woman. It was then that he (Raphael) recognised the person as Theresa, the daughter of Isibor, the 4th prosecution witness.” Fifth prosecution witness later reported the matter to the police at Uromi whence he was redirected to Ewohimi police station where he made a report. On his return home he found that the accused had already been arrested and taken away by the soldiers. Under cross-examination 5th prosecution witness said that, although the body of the deceased was carried on the shoulder, yet the face of the accused was not shielded by the body and that he saw the face of the accused. He also admitted that he was not friendly with the accused who had once beaten him up for taking sides with a tenant of 5th prosecution witness who was challenged on the ground of showing disrespect to the accused, and who had also imposed on 5th prosecution witness a fine for adultery with the wife of one Samson Inegbenebo (a councillor). He further deposed that the Onogie of Iromi had later settled the matter between them.
Mathias Unuareokpa (7th prosecution witness), the investigating police officer, described how the accused was brought to the Ubiaja police station on 31st December, 1969, by one Godwin (a soldier) and some other soldiers and “persons in mufty.” The next day the accused volunteered a statement (exhibit B).
The accused also gave evidence in his own defence. He said that he was a natural ruler and the Onogie of Ugbegun, that on the night of 30th December, 1969, he was in his palace with his family, that he slept that night with his wife, Onuwaghagbe, in her apartment till day-break. She testified to this effect. The accused said that on the following morning, as he was supervising his boys who were moulding blocks for him some 200 yards from his palace, about seven soldiers, including Godwin, set upon him, beat him up, stripped him naked and dragged him to a spot where they put him in a taxi-cab next to “a certain woman who had injuries on the body.” His hands were tied for about three hours and his fingers were stiff, so that he could not write his statement to the police until the following morning. The accused stated in his statement (exhibit B) that he was “in no way connected with the wounding of this woman in question.” It is pertinent to say here that 7th prosecution witness had under cross-examination admitted that throughout the course of his investigation it did not occur to him that somebody else might have committed the offence, that his enquiry concerning the background of the deceased revealed that she had just then had a baby and that on her return from her mother-in-law in Warri she had spent two days with her husband (Godwin) in Ugbegun before she went over to her father’s place in the same Ugbegun.
Isibor Eichie (4th prosecution witness), the father of the deceased, said that the deceased came to him to complain about her mother-in-law, that as he was afraid to harbour her because the husband and his family might make trouble if he did since he (4th prosecution witness) had been paid the full dowry on her, he had sent her to report the matter to the Onogie, and that it was on the next day that he learnt that she had been killed. He said under cross-examination that he did not accompany her and that he did not know whether she went to her husband’s house that day or not. On this point the learned trial judge himself observed:-
“Of course, although it may be assumed that Theresa went to the accused in obedience to her father, it cannot be presumed-for that will be against common sense-that she went at all or even reached the palace of the accused. So, Isibor Eichie’s evidence, standing on is own does not implicate the accused at all.”
The learned trial judge went on to pose the question:-
“Having reviewed the evidence on either side, I find that the crucial question to answer is: Who was that man that Raphael Egbeade saw carrying someone on his shoulder, that man depositing the person by Raphael’s house, the man running back towards the Ugbegunj/Opoji road and followed for quite a while by Raphael, that man branching off at the lane leading to the palace of the accused”
After examining the possibility that 5th prosecution witness’s evidence against the accused might be one of mistaken identity, the learned trial judge concluded that he believed that it was the accused that 5th prosecution witness saw on the day in question. He accordingly proceeded to find the accused guilty of the murder of the deceased.
From that decision the appellant has appealed to this court on the following grounds:-
“(1) The learned trial judge erred in law by attaching undue weight to the evidence of the 5th prosecution witness despite previous inconsistent statements made by him in respect of the same case in exhibit D touching upon the identity of the accused.
(2) The learned trial judge erred in law in failing to consider the defence of alibi set up by the appellant.
(3) The learned trial judge having held that ‘It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin’ erred in law in finding the accused guilty on the ground that ‘since the accused was seen to be carrying the injured woman, not with any aim of helping her, the only inferences to draw are that either he inflicted the injuries on her or he was a participes criminis and knew something of how those serious injuries described by the doctor came about.’
(4) The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”
Mr. Koku, learned counsel for the appellant, began by arguing ground 3 first. He said that the accused must be proved by the prosecution to have killed the deceased or to have taken an active part in the killing. The prosecution has failed to establish that the accused killed the deceased. He further argued that the doctrine relating to the responsibility of participes criminis under sections 7 and 8 of the Criminal Code of Western Nigeria does not apply and should not have been applied in the present case, because the charge as well as the evidence led throughout the proceedings was simply that the accused killed the deceased, not that he acted along with anyone else. Finally, learned counsel submitted that an appellate court, in a case involving homicide, must disregard the verdict of a trial court if the requisite degree of certainty as to the murderer is wanting: see The Queen v. Abdulahi Isa [1961] 1 All N.L.R. 668; Daniel Itodo v. The State (1968) N.M.L.R. 1; and The Queen v.Obiasa [1962] All N.L.R. 651, at page 658. We agree with this submission of learned counsel in view of the learned trial judge’s own finding as follows:-
“It is not certain, however, whether it was the accused who personally inflicted the injuries on Theresa Godwin.”
In arguing ground 1 next, Mr. Koku pointed out that there was a discrepancy between the deposition made by 5th prosecution witness at the preliminary investigation when he said the person being carried covered the face of the carrier, and the evidence given by him at the trial when he said that he in fact saw the face of the carrier (the accused). We think that there is substance in this submission of learned counsel when one considers exhibit D, the deposition of 5th prosecution witness at the preliminary investigation. Exhibit D reads:-
“I now say that I saw someone dumping a body. I knew it was the accused. The deceased was carried on the shoulder. The body of the deceased covered the face of whoever carried her. As soon as I shouted the person took to his heels.”
Learned counsel also drew attention to the fact that, whereas 5th prosecution witness said he could and did recognise the accused at 4 a.m. 5th prosecution witness and 2nd prosecution witness stated that they could recognise the deceased at 5 a.m. only with the aid of a torch-light. The learned trial judge, he finally submitted, should have rejected the evidence of 5th prosecution witness, who was shown to have had a grudge against the accused, as it was unsafe to found on such improbable pieces of evidence: Gabriel Sofolahan Joshua v. The Queen [1964] 1 All N.L.R. 1; R. v. Golder [1960] 1 W.L.R. 1169; 45 Cr. App. R. 123. Learned counsel chose, quite rightly in our view, to abandon ground 2 and not to argue ground 4 which he admitted was defective in that the words “weight of” had been wrongly inserted therein.
We agree with all the points put forward by the learned counsel for the appellant, and we think that they should have raised serious doubts in mind of the learned trial judge both as to the identity of the person who was seen carrying the deceased on the night in question and also as to who inflicted on the deceased the injuries that caused her death.
For these reasons we allowed the appeal on 19th October, 1972, set aside the conviction and sentence, and acquitted and discharged the appellant.
Other Citation: (1972) LCN/1344(SC)
