Cyril Okpara V. The State (2005)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Maranzu, J., while sitting at the High Court of Justice,Owerri in Imo state of Nigeria on 10th August, 1995. The trial Judge convicted and sentenced the Appellant to death for the murder of one Victor Igbo Opara, contrary to Section 319(1) of the Criminal Code,Vol. II Laws of Eastern Nigeria, 1963 applicable in Imo State of Nigeria.
The facts garnered by the trial Judge in the murder trial are very revealing. They are not far fetched. For a proper appreciation of the issues canvassed in this appeal, it is apt to reproduce the salient facts at a reasonable length.
P.W.1 Stella Opara, is the deceased’s wife and the star witness. According to her, the deceased set fire on waste papers used in their pit latrine/toilet. The fire got out of control and spread to plantain shrubs, belonging to Alexander Opara – Appellant’s father. It also led to the fall of a bean tree which destroyed Alexander Opara’s toilet. The deceased opted to repair the toilet. Alexander Opara asked him not to repair the toilet, but maintained that he should be paid for the burnt plantain shrubs. Kevin Opara, Appellant’s elder brother, reported the matter at the Army Barrack at Obinze.
P.W.1 and the deceased went to the Army Barrack at Obinze on 5th February, 1987. As well, Kevin Opara and Alexander Oprara went to the stated army Barrack where the rift was settled. P.W.1 and the deceased left the Barrack. At Obinze/Nekede junction, P.W.1 said she saw P.W.4 and her brother who were returning from school. P.W.1 said she asked the deceased to go home in company of the school children while she went to Owerri. She said the deceased; her husband agreed and accompanied the school children.
P.W.1 said on return to their village in the evening, she did not see her husband. The deceased was not seen again alive. P.W.4 said on her way home, she saw the Appellant sharpening a stick on that day along the road. A search party was mounted and the deceased corpse was found on 7-2-87. The prosecution maintained that the Appellant who did not take part in searching for the deceased ran away. The co-accused who was acquitted joined in the search, but later ran away for fear of being arrested. Police later shot at him to effect his arrest. An autopsy was done on the corpse, but the report was not tendered. The Medical Officer who performed the Post Mortem did not testify.
P.W.1 said she overheard the Appellant at about 9.00 p.m. on 5-2-87 saying he had killed the deceased. She said one Adiele Ononugbo, also heard the Appellant’s utterance. Adiele did not testify. What P.W.1 said she heard from the Appellant is not contained in any of her three statements.
P.W.1 said one corporal Umoh alleged that one huge boy came to them and asked to be protected in that they way-laid someone on the road from Obinze to Nekede. She said the Police gave the name of the huge boy as Cyril Opara – the Appellant. The Police did not arrest the ‘huge boy’ and never testified.
The Appellant maintained that there was no quarrel between him and the deceased. He admitted that there had been some family dispute over land, which had long been settled before the incident. He did not go to the Army Barrack with those who went there on 5-2-87. He said on 1-2-87, the co-accused and himself caught P.W.1 in the bush having illicit amorous affairs with one Ozurumba Nze. He said P.W.1 had a grudge against them and threatened to deal with both of them. He admitted that he did not participate in the search for the deceased before he ran away to avoid indiscriminate arrest of youths by the Police after the incident. Appellant said on 5-2-87, he,along with the co-accused, went to the house of Mbakwe’s driver to keep watch as security men. When he heard that the co-accused had been arrested, he reported willingly at the Police station.
After trying to apply the relevant laws to the evidence adduced, the trial Judge found the Appellant guilty and sentenced him to death. The co-accused was discharged and acquitted. Alexander Opara, Appellant’s father, died in prison custody, while awaiting trial.
The Appellant felt unhappy with his conviction and sentence and has, ex-debito justitiae, appealed to this court. From the grounds of appeal filed, three issues were formulated for an appropriate determination of the appeal.
I accordingly set them out as follows:
“2.1. Whether the circumstantial evidence adduced met the requisite standard in a murder trial thereby, proving the case against the Appellant beyond reasonable doubt as laid down by S.138(1) of the Evidence Act.
2.2. Whether the conduct of the proceedings by the learned trial Judge was done in accordance with the law.
2.3. Whether the Appellant’s conviction was valid and proper after the co-accused was discharged on the same evidence.
On behalf of the Respondent, three issues were couched as follows:
“(i) Whether the totality of the circumstantial evidence at the trial was not enough to find the Appellant guilty of the number of the deceased.
(ii) Whether the steps adopted by the learned trial Judge in this case vitiates the trial or Proceedings.
(iii) Whether the evidence against the 2nd Accused is the same as that against the Appellant.”
It has been restated times without number by the Supreme Court and this court that, wherever there is a charge for the capital offence of murder, to successfully establish same against the accused person, the prosecution must prove the following:
(a) the death of the deceased;
(b) the act of commission or omission of the accused which caused the death; and
(c) that the act of commission or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It is no longer a moot point that the above stated ingredients must be clearly proved beyond peradventure. Refer to ONAH v. STATE (1985) 3 NWLR (Pt. 12) 236; OKEKE v. STATE (1992) 2 NWLR (Pt. 590) 246; OMOGODO v. STATE (1981) 5 S.C. 5; NWOSU V. STATE (1998) 8 NWLR (Pt 562) 443, ABOGEDE v. STATE (1996) 5 NWLR (Pt. 448) 270; OGURU v. STATE (2000) 8 NWLR (Pt. 769) 367; UDOSEN v. STATE (2005) 8 NWLR (Pt.928) 587.
To sustain conviction for the capital offence of murder, it is not enough to merely prove that the deceased died. The prosecution has the abiding duty to prove beyond reasonable doubt that the death of the deceased resulted from the act of the accused person and that the act was intentional. The cause of death of the deceased must be traceable to the act of no other person, other than the accused. Where the prosecution fairs to prove beyond reasonable doubt that the act of the accused caused the death of the deceased, a verdict of discharge and acquittal must be entered. See OKAFOR v. STATE (1990) 1 NWLR (Pt. 128) 614; OKOROGBA v. THE STATE (1992) 2 NWLR (Pt. 222) 244.
It is the law as dictated by section 138(1) Evidence Act, cap 112, Laws of the Federation of Nigeria, 1990, that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. This has been given clear stamp of authority by our apex court. See NASIRU V. STATE (1999) 2 NWLR (Pt. 589) 98. The pace on the point was set about seven decades ago in WOOLMINGTON v. D.P.P. (1935) A.C. 462.
It is clearly not a moot point that Victor Igbo Peter is dead. The parties are ad idem on same. It was found out that the man died on 7-2-87 when his corpse was recovered in the bush.
I need to point it out here that, there is a dearth of evidence in respect of the cause of death of the deceased. The picture which the prosecution attempted to paint through circumstantial evidence is that the appellant and the co-accused attacked the deceased and caused his death. The medical officer who performed the autopsy on the body of the deceased did not testify. No medical report was tendered as well. It can be safely presumed that the medical evidence which could be produced and was not produced, would, if produced,be unfavourable to the prosecution’s case. Section 149(d) of the Evidence Act is in Point here.
Further, throughout the whole gamut of the evidence proffered by the prosecution, there is no evidence as to the nature and type of injuries that led to the death of the deceased. It has been depicted earlier on in this judgment that in a murder trial, cause of death is a fact in issue that must be proved by the prosecution. There must be direct evidence linking the cause of death of the deceased with the appellant. As there is none herein, medical evidence is a sine qua non. It cannot be dispensed with. See IGAGO v. STATE (1999) 6 NWLR (PT. 608). It is only when the caused of death is obvious that medical evidence can be dispensed with. Refer to EMVENYA v. A.G. BENDEL STATE (1993) 6 NULR (Pt. 297) 29; ADAMU v. KANO N.A. (1956)1 FSC 25; (1956) SCNLR 65.
The prosecution’s omission to tender the medical report was,no doubt fatal to the prosecution’s case. This is more so as there was no viva voce evidence showing any attack on a vital region of the deceased’s body. At page 146 lines 15-20 of the transcript record of appeal, the trial Judge bemoaned the situation created by the prosecution as follows:
“It is frustrating to Court to be given the burden of inferring from circumstantial evidence the fact of death and murder of the deceased in the face of the abundant evidence by the prosecution witnesses that an autopsy was performed on the body of the deceased and the medical report issued.”
To my mind, it was not necessary for the trial Judge to feel disturbed that the prosecution did not tender the desired medical report. After all, it is their case which must stand or fall based on their performance. The trial Judge attempted to cover the yawning gap created by the prosecution as at page 150 lines 10-15 he had this to say:
“…The 1st accused was seen with a sharp knife alone, along the road that the deceased passed on the fateful day, 5th February, 1987. That means that the 1st accused had opportunity to harm or maim and or kill the deceased along that road.”
In short, the trial Judge erroneously attempted to cover the vital yawning gap created by the prosecution through, what I may describe as conjecture or permutation, if not assumption. It is not within the realm of the constitutional responsibility of a Judicial Officer to embark upon such a stance.
For more elucidation on the vital issue being discussed herein as at this point, I need to further refer to the decision of the Supreme Court in the case of AHMED v. STATE (2001) 18 NWLR (Pt. 746) 622 at 649; 652. In a charge of murder as herein, it is not enough to show that the alleged act of the Appellant could have caused the death of the deceased. The prosecution has the onus to prove that it did in fact, cause the death. Even where death follows injury inflicted on a deceased and the fact of the injury is relied on without medical evidence as circumstantial evidence of cause of death, the injury suffered must be so well described and be of such nature from such description, that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie cause of death.
In short, since the cause of death of the deceased remains in the air, it has not been proved that the act of commission or omission of the appellant caused the death of the deceased. It was erroneous of the trial Judge to hang in vacuo on his proposition that, the appellant had opportunity to harm or maim and or kill the deceased along that road that day. Such sounds in the realm of conjecture with no legal backing; as has been demonstrated above.
This should have been an appropriate time to allow the appeal. However, since this is an intermediate court, I need to consider the circumstantial evidence upon which the trial Judge relied in convicting the appellant.
Circumstantial evidence is said to be evidence of surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with mathematical accuracy Refer to R v. TAYLOR & 2 ORS (1930) 21 CAR 20 at p.21 OBUKOR v. THE STATE (1984) 8 S.C.1
For circumstantial evidence to be in tune with the reality of the matter, such must be strong, cogent and compelling as to convince a jury that on no rational hypothesis other than the inference therefrom can the fact be accounted for. Refer to UWE ESAI & ORS v. THE STATE (1976) 11 S.C. 39; PETER N. EZE v. THE STATE (1976) 1 S.C. 125. Circumstantial evidence must be competing and unequivocal. They must point only at the direction of the Appellant and no other person.
Refer to OMOGODO v. THE STATE (1981) 5 S.C.; PEBA v. STATE (1980) 8-11 S. C.76, Circumstantial evidence, to be sufficient, must read conclusively and indisputably to the appellant’s guilt. Such is in line with the dictate of Section 138 (3) Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. Let me observe that circumstantial evidence must be examined narrowly and with care. It must be closely examined if possible with a tooth comb. Refer to STATE v. NAFIU RABIU (1980) 1 NCR 4 at p.50. To be sufficient for conviction such evidence must point only to one conclusion, namely that the offence had been committed and that it was the accused who had committed it. See NASIRU V. STATE (1999) 2 NWLR (Pt.589) 87 at 89; TEPER V. R (1952) A.C.480. A court must carefully appraise circumstantial evidence because it may be fabricated to cast suspicion on another. Refer to ADEPETU v. STATE (1996) 6 NWLR (Pt. 452) 90 at p. 113.
The trial Judge said that the Appellant did not look for the deceased. He felt that a well meaning or casual friend will certainly join in the search for his missing friend how much more someone, one calls a brother. With due diffidence to the trial Judge, this statement sounds rather sentimental. And sentiment has no place in a serious criminal trial relating to murder. I am at one with the learned Counsel for the Appellant that being callous is not a crime.
The trial Judge felt that it was wrong for the Appellant to run away after the incident. The Appellant said he ran away like some other youths of the village to avoid indiscriminate police arrest. In any event, the fact that the Appellant ran away to escape arrest, after the incident without more is no proof of his guilt. Refer to AKINSANYA v. STATE (1961) WRNLR 222 at 229. It should be noted that the Appellant willingly reported himself at the Police station, unlike the acquitted co-accused, who also ran away from the village and was shot on the waist by the Police to effect his arrest.
The learned trial Judge relied heavily on the evidence of P.W.1 who alleged that she overheard the Appellant say that he had killed the deceased. From the evidence of P.W.2, as at 9.00 p.m. when P.W.1 said that the Appellant made the comment credited to him, the appellant and the co-accused were on guard duty at the house of Chief Mbakwe’s driver P.W.1 said one Adiele Ononugbo, also heard the Appellant’s alleged comment. But Adiele was not called to testify and corroborate P.W.1’s assertion. And more importantly, what P.W.1 credited to the Appellant about five years after the incident is not contained in her statements which are Exhibits A, AA and AAA copied at pages 5-11 of the record, of appeal. These were statements made by P.W.1 when the incident was fresh. Also, she did not report what she heard the Appellant say in the night of 5-2-97 to any one in the vicinity. P.W.1’s testimony in this regard is outside what is contained in her three extra-judicial statements. P.W.1 appears inconsistent. The evidence that is not part of her statements should be taken as an after thought. Failure to call Adiele Ononugbo, weakened the case of the prosecution. The doubt arising must be construed in favour of the Appellant. See OBIOSA V. NIGERIAN AIR FORCE (2000) 12 NWLR (Pt. 680) 112.
The trial Judge talked of land case between the deceased and Appellant’s family. P.W.1 did not seriously say much about land case between her late husband and Appellant’s family. P.W.5, a police investigator who mentioned it did not have direct knowledge of the facts. In any event, the Appellant said the misunderstanding between the deceased and his family had been settled long before the deceased died. I see no big deal in the surmised land dispute.”
P.W.1 said in her evidence that one corporal Umoh said that the Appellant came to them and asked to be protected in that they way-laid someone on the road from Obinze to Nekede. Ironically, Cpl. Umoh did not arrest the Appellant and never testified. Viewed critically and carefully, one can see that P.W.1 was out for skirmishes all over the place.
It is extant in the record of appeal that P.W.1 was, off 1-2-87, caught by the Appellant and the acquitted co-accused f or having illicit amorous affairs with one Ozurumba Nze in the bush. She admitted that the Appellant and the co-accused reported her to the town elders for desecrating the land. It is equally extant in the record that PW.1 was customarily sanctioned. Appellant said because of this, P.W.1 promised to deal with them.
From all indications, it appears to me that P.W.1 embarked upon real vendetta. She was in for total revenge. Indeed, she was out for a pound of fresh from the Appellant’s throat; it seems.
I am of the strong opinion that the trial Judge ought to have sufficiently warned himself as to the veracity of the evidence of P.W.1, who had other interest to serve. She was out to get even with the Appellant. In the same vein, she was deceased’s wife. Refer to OLALEKAN v. STATE (2001) 18 NWLR (Pt. 746) 793 at 816. See also, OKONKWO v. THE STATE (1998) 4 NWLR (Pt. 544) 142 at p.154. The evidence of a close relation must be treated with caution.
It is my considered opinion that no jury that is composed of reasonable men and women of affairs and honour, whose opinion should be respected would return a verdict of guilty based on the inconsistent and incredible, evidence of PW.1 who, no doubt was actuated by malice to implicate the Appellant. I do not think that the evidence of P.W.1 deserve any credence and reliance. Her evidence was not coherent, cogent and compelling.
The trial Judge should have discharged and acquitted the Appellant. After all, the existing reliable evidence against him is substantially the same as that against the co-accused who was discharged and acquitted. So also is the applicable law the same.
This is a clear case, where it can be said without any equivocation that the prosecution failed to prove their case against the Appellant beyond reasonable doubt. It has been shown that an essential ingredient of the offence of murder to wit: the act of commission or omission of the Appellant which caused the death of the deceased was not proved. There is a failure to comply with the dictate of section 138(1) of the Evidence Act as it has not been proved that the death of the deceased resulted from the act of the Appellant. Again, see NASIRU v. STATE (supra), AKINYEMI v. STATE (1999) 6 NWLR (Pt. 607) 449 at 464.
I come to the conclusion that the appeal has merit and it is hereby, allowed. The conviction and sentence of death passed on the Appellant on 10th August, 1995 are hereby, set aside.
The Appellant is hereby discharged and acquitted forthwith.
Other Citations: (2005)LCN/1844(CA)
