In Re – Omada Edobor (1975)

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FATAYI-WILLIAMS, JSC. 

The accused, now appellant, was convicted of the murder of his sister, Owie Edobor, in the Benin High Court on 26th July, 1974. At the hearing of the appeal against the conviction on 30th October, 1975, we allowed the appeal, set aside the conviction and sentence, found him not guilty of murder as charged, and ordered that he should be acquitted and discharged. We now give our reasons for doing so.

The facts are as follows. Sometime in October, 1973, the accused who lived in Udo Village in the Benin Judicial Division went to Benin to see the deceased who was a tenant of Anna Idiaghe (P.W.2) at No. 44, Osasogi Street, Benin City. The accused had come to ask the deceased to return to Udo Village and had informed the P.W. 2 that he and the deceased had something to do in the village and that the deceased would return to Benin City in about two days time. The deceased returned to Udo Village with the accused.

About a week later, the Police visited P.W. 2 in Benin City and informed her that her tenant, the deceased, had died at Udo Village on the same day that she went home. P.W. 2 told the police that the deceased was hail and hearty when she left with the accused. Apparently, some time after his return to Udo Village with the deceased, the accused informed one Nabulele Osenwegbiam (P.W. 3), who is the Odionwere of Igbesanwan Quarter in Udo Village, that the deceased had died of cholera and had been buried. P.W.3 explained that the custom of their village for announcing the death of a person in this case was not followed.

He explained that contrary to custom, he did not hear anybody cry in anguish; moreover, as the Odionwere of the quarter, the deceased should not have been buried without his knowledge. Be that as it may, the Police in Benin City , by the tenth day of October, 1973, had received some information about the death of the deceased. As a result of this information, P.C. Solomon Awala (P.C. 4) and some other policemen travelled to Udo Village where they succeeded in tracing the “pit latrine” where the deceased was buried. Later, on 21st October, 1973, to be precise, the body of the deceased was exhumed and one Dr. Aideyan (P.W. 1) performed a post mortem examination at the grave side. Consequent upon the doctor’s report, the accused was arrested and charged with the murder of the deceased.

After he had been duly cautioned, the accused made a written statement to the Police wherein he explained how the deceased died. The relevant portion of the statement (Ex. “A”) reads- “I did not kill my sister Owie as alleged. On the 5th of October, 1973, my sister Owie came from Benin to visit me at Udo, but before she came, she was suffering from belly trouble, so I gave her some medicines such as capsules and other medicine which I have at home. After giving her the medicine, she was still vomiting and she also had frequent stool. At about 2 a.m. on the 5th of October, 1975, my sister died, but before she died, she told me that it may be the vehicle she joined from Benin to Udo that caused her stomach pain. After she died, I brought her out and bathe her, and later went to invite Albert, Moses and Azikiwe to come and help me bury her that night. She was accordingly buried in my back yard at Udo. I did not bury her in the latrine. Why I did not inform the elders at Udo was because I have no relation at Udo that is why I approached the above mentioned people to help me bury her that night.

On the 5th of October, 1973, I came to Benin so I went to visit my sister at Oliha Quarters. On arrival, she told me she was preparing to visit me at Udo. So, both of us left Benin to Udo. It was on the same day she died.” At the trial of the accused for the murder of the deceased, the doctor (P.W.1) who performed the post mortem on the body of the deceased testified that on the 22nd of October, 1973, he received a Coroner’s order to exhume and perform an autopsy on one Owie Edobor at Udo Village, and that he performed the exhumation and autopsy on the 24th of October, 1973. He explained how the grave was identified to him as follows:- “The grave was identified by one Agboninekuegbe Edobor and one Moses Tongo as that of Owie Edobor a sixty year old female subject buried on 5th October, 1973.”

Significantly, the doctor did not say whether the body in the grave was identified to him as that of the deceased or if it was so identified, by whom. He described what he found as follows:- “I found an oblique fracture of the left temple involving the wing of the patrons temporal and the posterior aspect of the parietal bone. She also had a bruised haematoma (swelling due to collection of blood) over the manubrium streimi (upper part of the bone covering the chest). The internal organs of the abdomen and pelvis and chest appeared normal. In my opinion, death was due to fracture of skull and brain damage. The fracture could have been caused by a violent impact, such as a blow or being hit by a stick.” When asked whether a fall could have caused the injuries, the doctor replied that to cause it, the fall must be on a stone from a great height.

It must be pointed out at this juncture that neither Agboninekuegbe Edobor nor Moses Tongo (the two persons who the doctor said identified the grave to him) testified for the prosecution. Before the accused was called upon to defend himself, the learned trial Judge, as could be expected, and quite rightly, held that no prima facie case had been made against the three other accused persons charged jointly with the accused. He found them not guilty of the offence and acquitted and discharged them. In the evidence which he gave on oath in his defence, the accused still stuck to his story that the deceased died from “vomiting and stooling.” He said the 2nd, 3rd and 4th accused were the only persons who came to his aid after the deceased had died and that they came after he had bathed the deceased and wrapped her up in cloth. He denied hitting the deceased on the head or causing her death from a “brain injury.”

Before convicting the accused of murder as charged, the learned trial Judge, relying heavily on the medical evidence, found as follows:- “There is no direct evidence showing that the accused killed the deceased but the prosecution are relying on circumstantial evidence in that the accused took away the deceased from Benin City on the 5th of October, 1973, and on the same day the deceased died as a result of some violent act by somebody. The issue of accident cannot arise as it was never suggested in the course of the proceedings.

The accused said that the deceased died from natural cause but this is negatived by the medical evidence. It is my honest opinion that the circumstances connecting the accused with the death of the deceased are so powerful and cogent that it is irresistible to conclude that it was the accused who knew about the death of the deceased. In coming to this conclusion, I am perfectly mindful of the fact that there is no onus on the accused to account for the death of the deceased although he did say in his evidence that the deceased died from an attack of cholera which evidence has been negatived by the medical officer in this case. I have no hesitation in accepting his evidence in its entirety.” (The underlining is ours.) The only point canvassed strenuously before us on appeal against the conviction is shortly this. Since none of those who identified the grave to the doctor was called to testify and say that it was the grave in which the deceased was buried was the one they showed to the doctor, there is nothing to connect the body which was exhumed and on which the doctor performed the autopsy with that of the deceased. Moreover, there is no evidence on record to show that the body on which the doctor performed the autopsy was identified to the doctor as that of the deceased.

The learned Senior State Counsel who appeared for the respondent conceded that none of the persons mentioned by the doctor was called to testify that he identified the grave to the doctor. He also conceded that no evidence was called to show that the body exhumed from the grave was that of the deceased before the doctor performed the post mortem examination on it. We think there is merit in the point raised by learned counsel for the appellant. As the learned trial Judge rightly pointed out in his judgment, the prosecution relied solely on circumstantial evidence to prove that it was the accused who caused the death of the deceased in circumstances which, if the doctor’s testimony is accepted as the learned trial Judge had done, must amount to murder.

In order to sustain a conviction based on circumstantial evidence, the circumstances relied upon by the prosecution must lead conclusively and indisputably to the guilt of the accused person. As Lord Normand has rightly pointed out in R. v. Tepper (1952) A.C. 480 at page 489- “It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

Admittedly, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found (see R. v. Onufrejezyk (1955) 1 QB. 388), but that is not the case here. Here, a body that was exhumed was found with head injuries which the doctor said was the cause of death. On the other hand, the appellant said the deceased who was his sister had “belly trouble” followed by “vomiting” and “frequent stooling” presumably meaning diarrhoea, and that she eventually died from these. To prove that the accused was lying and that his sister did not suffer from any of these things but had head injuries which caused her death, it must be proved not only that the grave from which the body was exhumed was the one in which the deceased was buried, but also that the body on which the head injuries were found were those of the deceased. As nobody was called by the prosecution to prove these crucial facts, the injuries found on the head of the body examined by the doctor could not be traced to the deceased. This omission has certainly weakened or destroyed the inference that it was the act of the appellant which caused the head injuries from which the deceased died. It has created, without doubt, a gap in the chain of circumstances surrounding the death of the deceased. One does not begin to inquire whether an accused is guilty of a crime until it has been established that a crime has been committed. To establish that a crime has been committed in the case in hand, the prosecution must first prove that the grave from which the body was exhumed and the body so exhumed are those of the deceased. And these they have failed to prove. We, therefore, thought that it was unsafe to allow the conviction of the appellant to stand.

We accordingly allowed the appeal, set aside the conviction, and ordered that he should be acquitted and discharged.

Other Citation: (1975) LCN/2006(SC)