Esop Sampson Edoho V. The State (2002)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A. 

The accused person, Esop Sampson Edoho, now appellant was charged on an information with the offence of murder contrary to section 319(1) of the Criminal Code.

The particulars of the offence read:

“Esop Sampson Edoho in the night of 29th July, 1993 at No. 67, Grace Bill Road, Eket, within Eket Judicial Division murdered Iboro Esop Sampson Edoho (M).”

The appellant pleaded not guilty to the charge. The trial was before Idiong, J. at Eket High Court of Akwa Ibom State. At the trial, the prosecution called four witnesses in proof of its case. The appellant gave evidence in his own defence but called no witness.

Learned counsel for both parties also addressed the court. At the end of the trial, the learned trial Judge delivered a considered judgment on 21/4/97 and found the appellant guilty of murder, convicted him and accordingly sentenced him to death. In convicting the appellant of murder of the deceased, the learned trial Judge had this to say in his judgment at page 67 of the record:

“I am generally satisfied that the prosecution has proved its case beyond reasonable doubt as required by law and so I find the DW1 (appellant) guilty as charged.”

The facts of the case as presented by the prosecution can be stated thus:

The deceased, Iboro Esop Sampson Edoho, was the son of the appellant and was living with the appellant at the time of the incident leading to his death. He was then aged about twelve years. PW2, Aniebiet Cletus Uko also was living with the deceased and the appellant in the appellant’s house and she was attending school at the time from the house of the appellant who was her mother’s husband. She testified that on 29/7/93 at night time she was reading in the house when the appellant told her that he was going to the church and instructed her to go and sleep whenever she felt sleepy.

The appellant then went out and later returned with the deceased and kept the deceased in his (appellant’s) bedroom and left for the church again. Before that date, the deceased used to sleep in the same bedroom with PW2. According to PW2, the appellant kept the deceased in his own bedroom to prevent the deceased from going out as he used to do. After PW2 had finished reading that night, she went to her bedroom and slept, and as she was sleeping she felt some scratches on her body; she woke up and called the appellant who came and took her outside where she then saw the deceased lying on the ground. She also saw the appellant and the appellant’s visitor who used to supply the appellant with drugs. The appellant then instructed his drug supplier to pour water on her and he did so.

This was done because there was a burning sensation on her right hand which was caused by a substance suspected to be acid. The deceased according to PW2, was rolling on the ground and was unable to talk. PW2 noticed something like liquid on the deceased’s body as he was not wearing any clothes. The appellant went and called his nearby neighbours who came to the scene. The appellant also called a driver who conveyed the deceased to the hospital.

According to PW2, the deceased died because of the acid poured on him by the appellant.

Under cross examination by the learned counsel for the defence, PW2 said that the neighbours who came to the scene were crying and said that the liquid on the deceased’s body was acid. She said that at the time of the incident in 1993 she was in J.S.1 and did not know what an acid was. In answer to a question, PW2 said that the deceased was locked up by the appellant in the appellant’s bedroom that night but he did not cry.

PW1 who was the mother of the deceased and an ex-wife of the appellant was not present at the place and time of the incident and so she could not speak from her knowledge about what happened. However, she told the court that on 29/7/93 at about ten minutes to 1.00 a.m the appellant came to her house and told her that the deceased had poured acid on himself and had been admitted into an hospital. The appellant then took her to the clinic where the deceased had been taken to by the appellant and admitted for treatment. PW 1, on reaching the clinic, saw the deceased with acid burns on his body, she called him but he could not answer. She challenged the appellant that he (the appellant) poured acid on the deceased. She was there until about 3.45a.m when the deceased died in the clinic. She then left for her village and reported the matter to her father and later at the Police Station. The Police came and took the deceased’s corpse to the hospital where autopsy was conducted and she identified the corpse to the Medical Doctor that conducted the autopsy, as that of her son.

PW 1 under cross-examination, admitted that she was married to the appellant. She however said that she did not see when the appellant killed the deceased, even though in her statement to the Police she said that the appellant killed the deceased.

The prosecution also called PW3, a Police Sergeant at the D.C.B. Eket who took part in the investigation of the case. PW3 testified that the case was reported at the Police station on 30/7/93.

As part of his investigation activities, he visited the scene and saw the corpse of the deceased placed on a table in the appellant’s house and was covered with a window blind, which was badly affected by the burns of a liquid suspected to be acid. The corpse was also affected by the burns on the legs, the private part, the face, and the mouth and the belly; the mouth was wide open and the tongue was peeled. PW3 then removed the corpse of the deceased to the Police Station and from there to Immanuel General Hospital, Eket, for autopsy by one Dr. M. I. Enyiekpon who also issued a medical report, exhibit 6. PW3 stated that the said medical doctor is dead. PW3 tendered the statement of the appellant as exhibit 1. Upon PW3’s visit to the house of the appellant, he saw traces of acid drops on the floor and the bed in the room where the deceased and PW2 usually slept. The acid drops on the bed affected the skirt and blouse of PW2, and PW3 took possession of them. In the appellant’s bedroom, acid drops were seen on his bed, window blinds and on the floor.

The appellant who was in the company of PW3 directed him to a corner of the bedroom where he (PW3) recovered a bottle containing acid, which the appellant told him that he used for charging the battery of his motorcycle prior to selling the motorcycle. The recovered items were tendered and admitted in evidence as follows:

The skirt and blouse as exhibit 2(a) and (b); the acid burnt window blind as exhibit 3; the bottle containing acid as exhibit 4; the negatives and photographs of the corpse of the deceased taken by a photographer as exhibits 5 (a) and (b); the post mortem medical report by Dr. M. I. Enyiekpon (now dead) as exhibit 6; a certified true copy of the evidence of Late Dr. M. I. Enyiekpon in the previous proceedings of this case on 7/3/94 by Hon. Justice Udofia as exhibit 7.

Under cross examination, PW3 said that he did not send the content of exhibit 4 for laboratory analysis mainly because the appellant told him that the content was raw acid and he believed him.

The last witness for the prosecution was PW4, a police inspector who also took part in the investigation of this case at the S. I. I. B. Uyo, when the case was transferred from Eket Police Station to the latter office. PW4 tendered the second statement of the appellant recorded by PW4 as exhibit 8. PW4 stated under cross-examination that the appellant told him that the content of exhibit 4 was acid and so he did not take exhibit 4 to the forensic laboratory for analysis.

The case of the appellant was in effect that of total denial of the charge against him. He maintained that both the deceased, who was his son, and PW2 (the daughter of PW1) were living with him prior to the incident in this case. That both of them as children used to steal food and money in his house and he used to give them moral advice at times and also caned them at times. The deceased, he said was also in the habit of stealing his drinks including hot drinks and used to run to his mother (PW1) whenever he had done something wrong and would not return until after some days, but that was not a problem to him (the appellant) as he was used to that way of the deceased’s life. He said that on 27/7/93, the deceased ran away from his house because his present wife had accused the deceased of stealing her N20.00 and he pleaded with the deceased who admitted doing so, to refund the money. The appellant said that he did not beat the deceased or threaten to beat him when he ran away from the house. Then, on 29/7/93, in the evening, he (the appellant) told PW2 that he was going to the church. On the way, the appellant met one Nicholas Emmanuel Etukudo bringing the deceased back to him. He received the deceased with pleasure and returned to the house with the deceased. He observed that the deceased was weak and sad. He then took the deceased to the bedroom where the deceased and PW2 used to sleep and told him to go to the kitchen and find some food to eat. Thereafter, the appellant locked the kitchen gate in order to prevent the deceased from running away, and he (the appellant) returned to the church at 9.00pm. At that time PW2 was in the sitting room reading, while an Ibo man who visited the appellant that evening was preparing to go to bed. At about 11.00pm, the appellant returned from the church. He heard PW2 crying, he went in to find out why and PW2 told him that she had a burning sensation on her hand. Simultaneously, the deceased ran to him from the kitchen. He held the deceased and asked him what happened but the deceased could not talk but was vomiting. At that stage, PW2 then told the appellant that some liquid dropped on her hand and was burning her. The appellant said that he suspected acid burn and lifted the deceased and put him into a drum containing water.

He also with the assistance of his visitor removed PW2’s dress and poured water on her. Some neighbours who rushed to the scene assisted him to convey the deceased to Ayarakata Clinic, Eket, where the deceased was admitted for treatment. At about 4.30a.m of 30/7/93, the deceased died, and the appellant went to the Police Station and reported the incident.

The appellant said that because the deceased used to steal his hot drinks and other drinks, he stopped putting hot drinks in the refrigerator in his sitting room and kept them in his bedroom. He said he kept a small quantity of acid in a brandy bottle at a hidden corner in his bedroom for about three years before the incident. That he bought the acid for use in his motor cycle battery, but when he sold the motor cycle as a result of economic conditions he still retained the acid in his bedroom. The appellant also said that at the time he left his house for the church in the night of 29/7/93, he forgot to lock his bedroom where the acid was kept and that he suspected that during his absence from the house, the deceased must have gained entry into his bedroom and mistakenly drank the acid thinking that it was hot drink. He admitted that the Police recovered the bottle of acid (exhibit 4) from his bedroom, where he kept other bottles of hot drink in his wardrobe. The appellant denied smearing exhibits 2A and 2B and 3 with acid and also denied knowing who did so. He denied seeing any liquid on the floor of his bedroom.

Finally, he denied killing the deceased or doing anything to kill him.

Aggrieved by the decision of the learned trial Judge, the appellant appealed to this court by a notice of appeal dated 15/5/97 and predicated on two grounds of appeal. Subsequently, by an order of this court dated 9/7/2001, the court granted leave to the appellant to amend the said notice and grounds of appeal. Thereafter, the appellant filed an amended notice of appeal containing seven grounds of appeal.

The appellant also sought for and obtained an extension of time within which to file the appellant’s brief of argument which was deemed filed in this court on 20/2/2002. In the appellant’s brief of argument only one issue was framed for the determination of the appeal namely:

“Whether the prosecution proved the guilt of the appellant beyond reasonable doubt?.”

The respondent also filed the respondents brief of after obtaining an extension of time to do so and therein formulated a solitary issue for determination.

It reads:

“Whether there was evidence, direct or circumstantial, sufficient to sustain and ground appellant’s conviction and sentence by the lower court, for the murder of Iboro Esop Sampson.”

I have considered the two issues as framed above by the parties and I feel that the two issues are the same in substance. However, I prefer and adopt the issue framed by the appellant as more appropriate to the case, in the con of proof beyond reasonable doubt imposed by law on the prosecution in a criminal case.

Before I delve into the argument on the issue, I shall albeit briefly dispose of the prayer raised in the brief of the respondent to strike out appellant’s ground 2 of the amended grounds of appeal on the ground that it is abandoned by the appellant. The respondent argued that the appellant filed 7 grounds of appeal but formulated a single issue for determination that covered only 6 of the amended grounds of appeal namely, grounds 1,3,4,5,6 and 7, while no issue was formulated, neither was any argument canvassed on ground 2 of the amended grounds of appeal.

The prayer by the respondent, in my view, is in the nature of a preliminary objection challenging the competence of ground 2 of the amended grounds of appeal. Therefore, there ought, in my view, to be a formal notice of preliminary objection filed by the respondent to raise the objection but this was not done. The appellant on his own part did not file a reply brief to react to the objection by the respondent. The purpose of giving notice of preliminary objection to an opponent or adversary in accordance with the rules of this court is to give him an opportunity of reacting to the preliminary objection and to avoid any surprise. However, since the preliminary objection in the instant case was raised and argued in the respondent’s brief of argument which was served on the appellant who had the opportunity to react to it but did not do so, it will not be fair to the respondent to insist on the respondent filing notice of preliminary objection. Indeed, it will be stretching Order 3 rule 15(1) of the Court of Appeal Rules too far to insist on filing notice of preliminary objection in this case. See Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16; (1998) 7 SCNJ 367 at pages 374-376; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. I agree entirely with the respondent that no issue was formulated in respect of ground 2 of the amended grounds of appeal and this renders the said ground 2 incompetent. The objection is sustained and accordingly ground 2 of the amended grounds of appeal is hereby struck out.

In his brief of argument the appellant made a number of submissions. He contended that the learned trial Judge placed significant reliance on the evidence of PW2 in convicting the appellant for murder, when PW2 in her statements to the Police dated 31/7/93 and 11/8/93 at the time when the incident was very fresh in her memory, never alleged that the appellant poured any acid on the deceased nor did she claim to have seen the appellant do anything to the deceased. He submitted, therefore, that the evidence of PW2 which is at variance with her statements to the Police is not sufficient to be relied upon to convict the appellant. Referring to R. v. Golder (1960) 1 NLR 1169 and Joshua v. The Queen (1964) 1 All NLR 1, he submitted that it is settled law that previous statement of a witness which is inconsistent with his sworn or unsworn evidence is not to be treated as evidence. See also Mohammed v. State (1997) 11 NWLR (Pt. 528) 339 at 357. It was submitted therefore, that PW2 was not a reliable witness. It was argued that PW2 in her statements to the Police did not state that the appellant poured acid on the deceased, but in her evidence in court she testified that the deceased died as a result of acid poured on him by the appellant which must be seen as an afterthought. He submitted that the purpose of the inconsistency rule is to ensure that justice is done. On the evidence of PW1 it was also contended that PW1 was an unreliable witness whose evidence should not be relied upon for the conviction of the appellant.

It was submitted that the principle of proof beyond reasonable doubt is hallowed in antiquity and has become a bed-rock of all criminal trials and that the primary onus which is on the prosecution to establish the guilt of the accused beyond reasonable doubt never shifts, see Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729 at 745.

The appellant further submitted that it is trite law that an accused person has no duty to prove his innocence and the burden is on the prosecution to prove beyond reasonable doubt the guilt of the accused person. Where the prosecution fails to discharge the onus on it and there exists a doubt or probability whether the accused committed the offence charged, the guilt of the accused is not proved beyond reasonable doubt and the accused is entitled to be discharged and acquitted. The following cases were cited in support; Onubogu v. The State (1974) 9 SC1; Nwankwo v. The State (1990) 2 NWLR (Pt. 134) 627 at 639; Morka & Ors v. The State (1998) 2 NWLR (Pt. 537) 294 at 302, 304.

On the duty on the prosecution to call a witness whose evidence would settle a point in issue one way or the other, it was submitted that in the instant case, the prosecution failed to call the medicine supplier who admittedly was seen with the appellant and the deceased by PW2, and the failure to call him ought reasonably to create a doubt in the mind of the trial court, which doubt should be resolved in favour of the accused; Folarin v. The State (1995) 1 NWLR (Pt. 371) 313 at 323; R. v. George Kuree 7 WACA 175; section 149(d) of the Evidence Act were cited.

On the medical evidence as to the cause of death of the deceased, the appellant referred to exhibit 7, which is a certified true copy of the record of evidence of PW1, the medical doctor (now dead) in the previous trial of the case before Udofia J., and also exhibit 6, the post mortem examination report by the said deceased medical doctor and submitted that exhibit 7 conclusively stated that the death of the deceased was caused by intake of poisonous substance which was not acidic in nature and the non-acidic substance could be any concoction. It was respectfully submitted that a calm examination of the cause of death of the deceased as stated in exhibit 7 completely knocked the bottom off the assumption on which the learned trial court based its finding that the poisonous substance the deceased drank was acid. The appellant contended that in view of the description of the substance the intake of which was shown as the cause of death of the deceased, the trial court ought to have required the evidence of an expert to show that exhibit 4 (the bottle containing the alleged acid said to have been drunk by the deceased) was of the nature described in exhibit 7 to have caused the death of the deceased.

It was argued that the evidence of the appellant that exhibit 4 contained acid was immaterial and cannot displace the requirement of the expert opinion. After stating the ingredients that must be proved beyond reasonable doubt to secure a conviction in a case of murder, it was stressed that even if the appellant locked up the deceased inside his bedroom which is not conceded, that did not indicate an intention to kill the deceased nor did it indicate that the appellant intended that the deceased should steal and drink the acid contained in the brandy bottle. Still on the intention of the appellant to kill, it was further contended that apart from the alleged intent to steal and drink the acid in the brandy bottle, the appellant could have also intended that the deceased should quietly sleep in his bedroom by locking up the deceased therein to prevent him from going out, as was given in evidence by PW2 at page 27 lines 6-7 of the record. It was however, submitted that there was no evidence that the appellant intended the deceased to steal and drink the acid in the brandy bottle as that arose from the imagination of the trial court as there was no definite intent to kill the deceased proved.

On circumstantial evidence, the appellant alluded to some decided cases and submitted that where, as in this case, circumstantial evidence is relied upon, such evidence must cogently, irresistibly, positively, unequivocably, unmistakenly and conclusively point to the conclusion that the appellant was the perpetrator of the offence alleged to have been committed to the exclusion of any other. That the character and nature of circumstantial evidence must be such that no other reasonable conclusion or inference can legitimately be drawn therefrom. He submitted that apart from the inference drawn by the learned trial Judge in the instant case, other co-existing circumstances which would weaken or destroy the inference abound.

Therefore, the appellant opined that the conclusion of the learned trial court that the appellant was responsible for deceased’s death was predicated on nothing but suspicion. It was submitted for the appellant that suspicion no matter how strong does not take the place of legal proof and cannot found a conviction. See Anekwe v. The State (1976) 9-10 SC 255 at 264; Agboh Abieke & Anor. v. The State (1975) 9-11 SC 97 at 104; Onah v. The State (1985) 3 NWLR (Pt. 12) 236; (1985) 2 NSCC (Vol.16) 1361 at 1366-1367. The appellant also submitted that in law a court of trial cannot be invited nor allowed to speculate on possibilities which are not supported by any evidence and referred to Onyegbu v. The State (1995) 4 NWLR (Pt. 391) 510 at 531.

Finally, it was submitted that on a dispassionate consideration of the evidence led before the learned trial Judge in this case, that the reasonable conclusion is that the whole case on which the appellant was convicted for the murder of the deceased was based on suspicion and doubtful circumstantial evidence.

In the respondent’s brief of argument, the respondent took the view which rightly, in my view, was that there was no eye-witness account or direct evidence as to who administered the “poisonous substance” on the deceased or caused his death. Therefore, the prosecution relied on circumstantial evidence in proving its case against the appellant. The respondent was of the view that circumstantial evidence in this case was positive and irresistible and unequivocally linked the appellant with the death of the deceased.

He cited Igho v. The State (1978) 11 NSCC 166-167-168 which made reference to R. v. Robertson (1913) 9 C.A.R. 189 and James Popoola v. Commissioner of Police (1964) NMLR 1. The respondent referred to the evidence of PW2 and other pieces of evidence as making up the circumstantial evidence upon which the appellant’s conviction was secured. He contended that even though the appellant denied at the trial that he locked up the deceased in his own bedroom that night, the learned trial Judge believed the evidence of Pw2 that the deceased was locked up in the appellant’s bedroom by the appellant who was the last person to see the deceased alive. The respondent therefore submitted that there was an unbroken chain of events, which when put together constituted the circumstantial evidence linking the death of the deceased with the acts of the appellant.

On the contention by the appellant that the prosecution did not call as a witness the medicine supplier who was present at the time of the incident, the respondent argued that the contention of the appellant was erroneous and misconceived. The respondent submitted that the law is that unless expressly so provided no particular number of witnesses is required to prove any fact, and argued that the appellant was at liberty to call the medicine supplier as his witness if he so wanted. Reference was made to the case Ogbodu v. The State (1987) 2 NWLR (Pt. 54) 20 at 31-32 and 43.

On the inconsistency between the evidence of PW2 and her extra judicial statements to the Police which the appellant complained of, the respondent maintained that the said extrajudicial statements of PW2 were not tendered in evidence as exhibits in the lower court and therefore could not be treated as being inconsistent with the evidence of PW2 and cited Esangbedo v. The State (1989) 4 NWLR (Pt.113) 57 at 66-67.

On the contentious medical evidence as to the cause of death of the deceased, it was submitted by the respondent that the lower court was not bound to accept the evidence of any expert and alluded to the case of Chukwu Construction Co. Ltd. v. Uwechia (2000) 2 NWLR (Pt. 643) 92 at 98-99. It was also submitted that the instance where a court can reject an expert opinion is where such opinion is not supported by scientific or forensic analysis. See Ogiale v. Shell Petroleum Development Co. (Nig.) Ltd (1997) 1 NWLR (Pt. 480) 148 at 165. It was argued that the aspect of exhibit 7 which stated that the poisonous substance that caused the death of the deceased “was not acidic in nature” was not supported by any scientific or forensic analysis and was therefore worthless and properly rejected by the lower court. The respondent contended that in the absence of such scientific or forensic analysis which informed Dr. Enyiekpon (late) (PW1 at the former trial, who conducted the post mortem examination) to come to the conclusion in exhibit 7 that the intake of the poisonous substance by the deceased which caused his death was not acidic in nature, no weight should be attached to exhibit 7 as regards the acidic or non-acidic nature of the poisonous substance that killed the deceased. The respondent further submitted that the opinion of an expert may persuade a court but it is not binding on the court as the court has a duty to analyse the evidence before it and come to its own finding and conclusion based on the evidence; Udo v. Eshiet (1994) 8 NWLR (Pt. 363) 483 at page 501 was referred to in support. Citing the case of Bashaya v. The State (1998) 5 NWLR (Pt. 550) 351 at 370 on evaluation of evidence by a trial court and the interference by an appellate court with such evidence, the respondent urged this court not to interfere with the decision of the court below on the guilty verdict passed on the appellant.

For the determination of this appeal, I consider it pertinent to raise the following questions which revolve around the issue formulated by the appellant and the submissions of the parties, and to seek answers to them:

(1) Whether the conviction of the appellant for the murder of the deceased was proper, having regard to the unequivocal and unchallenged medical evidence before the trial court as to the cause of death.

(2) Whether there was sufficient circumstantial evidence before the court below linking the appellant with the death of the deceased to justify the appellant’s conviction for murder.

(3) Whether the evidence of PW2 at the trial was inconsistent with her extra-judicial statements to the Police.

(4) Whether the prosecution failed to call a vital witness and if so, whether that failure was fatal to the prosecution’s case?.

ON QUESTION NO.1

The first hurdle to overcome in this appeal is the resolution of the conflict between the medical evidence as to the cause of death of the deceased and the finding of the learned trial Judge as to the cause of death. It is trite law that in a charge of murder or manslaughter, as the case may be, the burden is on the prosecution to prove the following ingredients:

(a) that the deceased had died.

(b) that the killing was unlawful.

(c) that the death of the deceased was caused by the act of the accused.

(d) that the accused unlawfully killed the deceased under one or the other of the six circumstances enumerated in section 316 of the Criminal code.

See Onyenankeya v. The State (1964) NMLR 34; Onah v. The State (1985) 3 NWLR (Pt. 12) 236; Emine v. The State (1991) 7 NWLR (Pt. 204) 480; In Okorogba v. The State (1992) 2 NWLR (Pt. 222) 244 it was held that the burden placed on the prosecution in a charge of murder is not discharged unless the prosecution established not only the cause of death but also that the act of the accused person did, indeed, cause the death of the deceased. See Omogodo v. The State (1981) 4 SC 24 at page 27; Okon & Ors. v. The State (1988) 1 NWLR (Pt. 69) 172; (1988) 1 NSCC 156 at 157.

The burden on the prosecution to prove the commission of the offence beyond reasonable doubt never shifts, and if on the totality of the evidence a reasonable doubt about the guilt of the accused is created the prosecution would have failed to discharge the onus of proof which the law vests upon it and the accused person is entitled to an acquittal. See Alonge v. I.G.P. (1959) SCNLR 516, (1959) 4 FSC 203 at page 204; The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512 at 529; Lori v. The State (1980) 8-11 SC 81 at page 95.

In the instant case, the medical evidence as to the cause of death of the deceased was given by Dr. Macaulay Ifot Enyiekpon, (now late) (PW1) in the former trial by Udofia, J. on 7th March, 1994.

When the trial was commenced de novo before Idiong J. after the death of Udofia, J., the prosecution on 18/4/96 tendered the medical report of the autopsy by late Dr. Enyiekpon on the body of the deceased as exhibit 6. Also, in an apparent endeavour to establish the cause of death, the prosecution tendered a certified true copy of the evidence of late Dr. Enyiekpon at the previous proceedings before Udofia, J. (late) as exhibit 7. In exhibit 6 (the medical report) at page 71 of the record of appeal, Dr. Enyiekpon stated his findings thus:

“For examination I cut through to the brain, respiratory tract, examined the lungs, both left and right kidneys and the liver. Excitus letalis (death) caused by drink of poisonous substance that lead (sic) to respiratory collapse and shock. Irreversible shock.”

In the certified true copy of his evidence at the previous trial at page 72 of the record of appeal tendered as exhibit 7, Dr. Enyiekpon stated inter alia the cause of death as follows:

“After external examination of the corpse, I cut open the brain, the liver, kidney, spleen, the stomach, the throat down to the stomach when I weighed the kidney (key) (sic), it was lighter than it should be. The normal weight of the kidney should be 650 grammes. I observed that there was damage to the kidney. The walls of the stomach were eroded. The liver was traumatic. It was larger than it ought to have been. There was internal bleeding of the organs. But the spleen was normal. All these were caused by intake of poisonous substance which was not acidic in nature. The non-acidic substance could be any concoction. Death was caused by drink of poisonous substance that led to respiratory collapse and shock. In fact, irreversible shock because of the loss of blood. I performed the post mortem examination on 30th July, 1993 at 3 p.m. precisely;

Cross-examination by counsel for the accused; I did not see any sign of physical attack such as abrasions and so on, (on) the body of the deceased.”

(Italics are mine for emphasis).

As was rightly observed by the learned trial Judge in his judgment at page 63 of the record of appeal, exhibit 6 (the medical report) tendered by the prosecution at that trial was unnecessary and uncalled for, since Dr. Enyiekpon who performed the autopsy on the body of deceased had testified as PW1 at the earlier or previous trial before he died. It is the law that it is not necessary for the prosecution to tender the medical report of a doctor when the doctor is available to give evidence. But the medical report may be tendered by the defence under cross-examination to contradict the doctor. This was not the situation in the instant case. See Adekunle v. The State (1989) 5 NWLR (Pt.123) 505; Ifenedo v. State (1967) NMLR 200; Agbeyin v. The State (1967) NMLR 129; Ogbodo & Anor v. Police (1972) 2 ECSLR 719; Adie v. The State (1980) 1-2 SC 116 at page 121.

Clearly, exhibit 6 ought to have been tendered by the prosecution in evidence-in-chief. I therefore, agree with the learned trial Judge for discountenancing exhibit 6.

Now, the cause of death of the deceased in this case was given in evidence by Dr. Enyiekpon in exhibit 7 which I have reproduced above. However, the learned trial Judge in his judgment at page 63, lines 8 to 13 of the record of appeal made a crucial and indeed a fundamental finding on the cause of death of the deceased which is not supported by the medical evidence in exhibit 7. The learned trial Judge found as follows:

“I find that the deceased died as a result of drinking a poisonous substance that cause the deceased respiratory collapse and ireversible shock. From the evidence adduced and which I have accepted, that poisonous substance was acid, which DW1 (appellant) said the deceased drank thinking it was hot drink, which theory or suspicion I have already rejected.”

In my view, the first limb of the finding above by the learned trial Judge is consistent with the medical evidence of Dr. Enyiekpon in exhibit 7 and it is impeccable. But as regards the second limb of the finding above that the poisonous substance was acid, I respectfully disagree with it as it is not consistent with exhibit 7.

There is no evidence direct or circumstantial before the trial court that the deceased drank acid whether voluntarily or mistakenly thinking that it was a hot drink or that he was forced by the appellant or anybody else to drink acid, which evidence if available could have irresistibly led the learned trial Judge to come to his finding and conclusion that the poisonous substance the deceased drank was acid.

It is noteworthy that exhibit 7 ruled out the intake of acid or poisonous substance of acidic nature as the cause of death of the deceased.

In view of the apparent inconsistency between exhibit 7 which asserted that the poisonous substance taken by the deceased was not acid nor acidic in nature and the finding by the learned trial Judge that the said poisonous substance was acid, the question therefore, is whether the cause of death of the deceased was unequivocally and clearly established by the prosecution. In Lori v. The State (1980) 8-11 SC 81 at page 95, it was held that in a charge of murder the cause of death must be established unequivocally and the burden rests on the prosecution to establish this, and if they fail, the accused person must be discharged; Okon & Ors. v. The State (1988) 1 NWLR (Pt. 69) 172; (1988) 1 NSCC 156 at page 157.

It is the law that while medical evidence to prove the cause of death is desirable, it is not essential. But to make the accused criminally liable, there must be clear evidence that the death of the deceased was caused by the accused or was the direct result of the act of the accused to the exclusion of all other reasonably possible causes. See R. v. Nwokocha 12 WACA 453 at page 455. Where a man was attacked with a lethal weapon and he died on the spot, it is hardly necessary to prove the cause of death as this can properly be inferred from the surrounding circumstances, namely, that the wound inflicted caused the death. See Adamu v. Kano Native Authority (1956) SCNLR 65; (1956) 1 FSC 25; Bakuri v. The State (1965) NMLR 163; Uyo v. A.-G., Bendel State (1986) 1 NWLR (Pt. 17) 418 (1986) 1 NSCC 197.

In the instant case, the thrust of the argument of the respondent is that a court is not bound to accept the evidence or opinion of an expert because such opinion may be persuasive, but it is not binding on the court which has a duty to analyse the evidence, before it can come to its own finding and conclusion based on the evidence.

Undoubtedly, I agree that this is a sound proposition of the law. In Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505, it was held that the trial Judge was entitled in the face of inconclusive medical evidence to examine the evidence before him and draw the necessary inference which he believed and accepted. In Ukoh v. The State (1971) 1 NMLR 40 it was held that a court is not bound to accept a medical evidence especially when such opinion conflicts with common sense. In Essien v. The State (1984) 3 SC 14 at 22, the learned trial Judge discounted the medical evidence and deducted the cause of death from the evidence before him and this was approved by the Supreme Court on appeal to that court. Although the evidence of an expert witness such as the medical doctor in this case, cannot prevail over the court, yet the court will not treat such evidence with levity or with reckless abandon especially where such evidence is overwhelming and there is no evidence to the contrary or indicating a divergent opinion. In the instant case, it is my view that there was no evidence at all to support the finding or inference by the learned trial Judge that the deceased drank acid or that the poisonous substance the deceased was said in exhibit 7 to have drank was acid or that the cause of death of the deceased was due to the intake of acid. In my candid view, the finding or inference drawn by the learned trial Judge, in the absence of any credible evidence that the deceased drank acid is perverse. A perverse finding is one which ignores the facts or evidence led before the court and when considered as a whole amounts to a miscarriage of justice. See Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370. Therefore, as a perverse finding by the learned trial Judge, this court can interfere with it and set it aside. Accordingly, the said finding is hereby set aside.

It seems to me very clear in law that it is only in a clear case where there is evidence so to do that a trial Judge can be justified in substituting his own opinion for that of an expert. And this case is not one of such case.

In the instant case therefore, it is my view that the prosecution had failed to prove the cause of death of the deceased, having regard to the unequivocal and unchallenged medical evidence, exhibit 7, that the death of the deceased was caused by the intake of poisonous substance that was not acidic in nature.

Therefore, in answer to Question No.1, I hold that the conviction of the appellant for the murder of the deceased based on the erroneous finding by the learned trial Judge that the poisonous substance that caused the death of the deceased was acid, was not proper.

Question No. 2 – is on the sufficiency of the circumstantial evidence linking the appellant with the death of the deceased.

It is a fundamental principle of law that before an accused person can be convicted of murder based on circumstantial evidence, such evidence must be direct, cogent, strong, positive and compelling as to convince the court that on no rational hypothesis other than murder can the facts be accounted. See: Okorogba v. The State (1992) 2 NWLR (Pt. 222) 244; Ezediufu v. The State (2001) 17 NWLR (Pt.741) 82. In the instant case, since there was no eye witness account or direct evidence of how the deceased met his death, the trial court relied on circumstantial evidence to link the appellant with the death of the deceased. At page 64 lines 1 to 4 of the record of appeal, the learned trial Judge in his judgment stated thus:

“Even if there is no direct evidence to show that DW1 (appellant) caused or forced the deceased to drink the acid which caused the death of the deceased, the circumstantial evidence against DW1 (appellant) and linking DW1 (appellant) with the death of the deceased was overwhelming.”

The learned trial Judge then stated what he considered to be the overwhelming circumstantial evidence against the appellant linking him with the death of the deceased. It must be emphasized that there was no eye-witness account or direct evidence linking the appellant with the death of the deceased. The respondent in its brief of argument absolutely agreed with that fact.

With due respect, I hold that what the learned trial Judge considered to be the circumstantial evidence linking the appellant with the death of the deceased in this case, do not rank as circumstantial evidence to sustain the conviction of the appellant for murder. There is nothing in the circumstantial evidence from which the learned trial Judge could have reasonably inferred that the appellant forced the deceased to drink acid which the learned trial Judge found to be the cause of death of the deceased, a finding which this court has rejected.

For instance, I take the evidence of PW3 relating to the marks of struggle and drops of acid which he (PW3) found in the bedroom of the appellant and heavily relied upon by the learned trial Judge as providing a nexus between the act of the appellant and the death of the deceased. At page 31 lines 6 to 9 of the record of appeal PW3 testified as follows:

“In the room of the accused (appellant) there was evidence of struggle in the sense that the acid dropped all over the room and in all the corners of it.”

Under cross examination PW3 at page 32 lines 32 to 35 of the record of appeal said:

“I saw some marks of struggle in the accused’s (appellant’s) room because the acid instead of dropping at one point, spread and dropped as several points and objects in the room. I do not know who struggle with whom.”

The learned trial Judge in his judgment accepted the evidence of PW3 about the drops of acid in the appellant’s bedroom as signifying marks of struggle between the appellant and the deceased, and concluded thus:

“Marks of struggle in the bedroom of DW1 (appellant) lends credence to my conclusion that both DW1 (appellant) and the deceased moved about that bedroom in the process of getting the acid into the mouth of the deceased.”

Earlier in the judgment at the same page lines 3 to 9 of the record of appeal the learned trial Judge had reached the same finding and conclusion when he said:

“My perception of these facts, that is to say, the spread of acid on the deceased and on the objects as narrated by PW1, PW3 and exhibits 5(a)(b) is that it was in the process of trying to put the acid in the mouth of the deceased that both the deceased and DW1 (appellant) moved about DW1’s (appellant’s) bedroom and the acid splashed not only on the parts of the body of the deceased but also on several points and objects in the bedroom of DW1 (appellant).”

It is very clear in my view that the findings and conclusions thus reached by the learned trial Judge were not supported by the evidence of PW3 who had testified under cross examination that he did not know who struggled with whom. Yet the learned trial Judge came to the unfounded conclusion that struggle aforesaid was between the appellant and the deceased and that it was in the process of the appellant trying to put the acid into the mouth of the deceased that both the appellant and the deceased moved about and the acid splashed and dropped at several points in the bedroom of the appellant. It is my view that learned trial Judge acted on speculation of what happened in the bedroom of the appellant rather than on the evidence adduced before him in reaching his finding or conclusion.

What the learned trial Judge regarded as overwhelming circumstantial evidence linking the act of the appellant with the death of the deceased was no more than his speculation as what might have happened. It is an established principle of law that the duty of the Judge or court is to consider the evidence produced before him or it and never to proceed to indulge in speculation as to what might have happened, nor must a Judge substitute his own supposition for the testimony of witnesses given on oath before him. See Okorogba v. The State (1992) 2 NWLR (Pt. 222) 244; Adelenwa v. The State (1972) 10 SC 13; Q v. Ijoma (1962) 2 SCNLR 157: Okoko v. The State (1964) 1 All NLR 423. It was not for the learned trial Judge to supply the missing gap in the evidence of the prosecution witnesses in order to link the act of the appellant with the death of the deceased.

In Okorogba v. The State (supra) it was also held that when a trial court acts on speculation rather than evidence, then it has abandoned its proper role. See The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Onah v. The State (1985) 3 NWLR (Pt. 12) 236.

Therefore, in the instant case, there is nothing overwhelming in the circumstantial evidence heavily relied upon by the learned trial Judge as linking the appellant with the death of the deceased.

The third question is, whether there was any inconsistency between the evidence of PW2 and her extra-judicial statements to the police which were not tendered in evidence at the trial?. The law is that an extra-judicial statement of a witness is not a legal evidence and cannot be used at the trial for any purpose whatsoever, including the purpose of contradicting the witness unless the extra-judicial statement is tendered and admitted in evidence at the trial as an exhibit.

In the instant case, PW2 made two statements to the Police at the time of Police investigation into the murder case. The two statements were dated 31/7/93 and 11/8/93. At the trial in the court below, PW2 gave evidence. The defence counsel cross examined her but did not seek to tender in evidence her said extra-judicial statements to the Police during the cross examination in order to contradict her evidence in-chief, which the defence counsel felt was inconsistent with her evidence. At the address stage, the learned defence counsel sought to make use of the extra-judicial statements of PW2 to the Police to show that the evidence of PW2 was inconsistent with the extra-judicial statements to the Police. This was opposed by the learned prosecuting counsel. The learned trial Judge, rightly in my view, ruled in favour of the prosecution. This is as it should be because a document cannot be admitted in evidence for the purpose of contradicting a witness by merely producing the document or making reference to it by the counsel, without any cross examination of the witness as to credit. See Section 149 of the Evidence Act 1990; Ekang v. The State (2001) 11 NWLR (Pt. 723) 1. In my view, therefore, the procedure adopted by the learned

defence counsel in this case is strange and absolutely wrong in law.

The extra-judicial statements made by PW2 to the Police unless duly tendered and admitted in evidence as exhibits did not constitute legal evidence on which the court below could have acted. See Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57.

The last question is whether the prosecution failed to call a vital witness and if so, whether that failure was fatal to the prosecution’s case. The position in law has always been that the prosecution is not bound to call all available witnesses to prove its case in a criminal trial, but the prosecution is bound to call a witness whose evidence will settle a vital point in issue one way or the other. See George Kuree v. R. 7 WACA 175; Amusa Ors. v. The State (1986) 3 NWLR (Pt.30) 536. A witness who knows something significant about a matter is a vital witness and ought to be called by the prosecution. It is the failure to call a vital witness that raises a strong presumption that his evidence if called would be unfavourable to the prosecution. See section 149(d) of the Evidence Act 1990; Nnolim v. The State (1993) 3 NWLR (Pt.283) 567.

In the instant case, one David Nwachukwu who was referred to as the “Ibo man” in the evidence of PW1 and the appellant at the trial in the court below, was said to be visiting the appellant at the time of the incident. He was the appellant’s medicine supplier. The prosecution did not call him as a witness at the trial even though the Police obtained a statement from him. Appellant submitted that the failure of the prosecution to call him was fatal to the prosecution’s case. The question whether David Nwachukwu ought to be called as a witness would depend on the materiality of his evidence in the case. From the evidence of PW2 and the appellant there was nothing material that David Nwachukwu, if called, would have proffered in his evidence. In the circumstance, I am of the view that the failure to call him was not fatal to the case of the prosecution, if the defence had wanted him to testify in the case it was at liberty to call him as a witness.

In the final result, I hold the view that the prosecution failed to prove its case beyond reasonable doubt. The prosecution was unable to prove beyond reasonable doubt the cause of death of the deceased and that it was the act of the appellant that caused the death of the deceased.

On the totality of the evidence in this case, there is reasonable doubt about the guilt of the appellant, and the doubt should be resolved in his favour. In the case of Onafowokan v. The State (1987) 3 NWLR CPt.61) 538 at page 546, Anigolu, J.S.C. said:

“The laws of all civilized nations maintain that it is better that ten guilty persons should go scot free than that one innocent person should be found guilty.”

I adopt the same view of this legal luminary as mine in this case.

This appeal, in my view, is meritorious and it is hereby allowed.

The conviction and sentence passed on the appellant are hereby quashed. The appellant is hereby discharged and acquitted.

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Other Citations: (2002)LCN/1309(CA)