Moses Jua V. The State (2007)
LawGlobal-Hub Lead Judgment Report
MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the conviction of the Appellant for the offence of culpable homicide punishable with death by the High Court of justice, Kwara State presided over by Honourable Justice R.O. Elelu – Haleeb. The trial court found the Appellant GUILTY and sentenced him to death by hanging on 27/2/2006.
The Appellant and three other Accused persons were arraigned before the trial court on a two count charge for the offence of Culpable Homicide punishable with death contrary to section 241 of the Penal Code and causing disappearance of evidence, an offence contrary to section 167 of the Penal Code.
In the course of the trial before the lower court, two of the accused persons namely, Sebastian Tule and Joseph Sebastian died while the Appellant and one James Yaji (alias Apolo) survived the trial.
To prove the offence against the Appellants, the prosecution called a total number of six (6) witnesses and tendered eight (8) exhibits. The summary of the prosecution witnesses’ evidence was to the effect that the Appellant with others charged killed one PC Rotimi Jeremiah who was detailed to follow the Appellant to Ipee to bring the particulars of the Suzuki Motorcycle suspected to have been stolen by the Appellant.
The Appellant’s Counsel filed five grounds of appeal and there from identified two issues for determination. They are set out below:
- Whether it was proper for the (lower court to admit the alleged confessional statement of the Appellant without concluding the trial within trial and rely on same to convict.
- Whether the case against the Appellant was proved beyond reasonable doubt.
The Respondent’s Counsel also identified 2 issues couched in the following terms.
- Whether the trial court was right to have admitted the confessional state made by the Appellant (grounds 1 and 2);
- Whether the conviction of the Appellant for, the offence of culpable Homicide was based solely on the Appellant’s confessional statement.
(grounds 3, 4 and 5).
I will adopt the issues as distilled by the Respondent’s counsel since they seem to me to more comprehensively cover the complaints of the Appellant’s Counsel as adumbrated in the grounds of appeal.
Issue one is whether the trial court was right to have admitted the confessional statement made by the Appellant. On this issue, learned Appellant’s Counsel Mr. Toyin Ladipo Esq. argued that without the conclusion of the trial within trial, it was wrong of the learned trial judge to admit at the judgment stage, the confessional statement, as Exh. F. He submitted that a confessional statement of an accused person which is challenged on grounds of voluntariness can only be admitted after a trial within, trial has been conducted and concluded. The trial within trial was abandoned mid way.
He cited Solola v. The State (2005) 2 NWLR Pt. 937 Pg. 460 at 498, Ekure v. the State (1999) 13 NWLR Pt. 635 Pg. 456 at 467, Obidiozo v. The State (1987) 2 NSCC Vol. 18 (Pt. 11) Pg. 1239 at 1246.
He argued that as the prosecution prematurely cut short its case during the trial within trial, the Appellant did not have an opportunity of making his own case for the rejection of the confessional statement. He submitted that the procedure adopted by the lower court in admitting the alleged confessional statement was one that could not ensure fair hearing. Up to the 19th day of July 2005 when the prosecution adopted its final address and the Court adjourned for judgment, the alleged confessional statement was not in evidence. It was only admitted in evidence in the course of writing the judgment. So the Appellant did not get to know that the alleged confessional statement was evidence considered by the Court in finding him guilty until the judgment was being read. A fair hearing envisages a procedure where the accused person is confronted and well aware of all the evidence against him before he enters his defence. The lower court ought not to have acted on the alleged statement because it was not legally admitted in the course of either the prosecution or the defence case. He argued that it is most improper for the lower court to have admitted the statement at the time it did so.
He further submitted that the evidence of the Appellant that he was physically abused and tortured was never contradicted by way of cross-examination.
Thus it should have been deemed an admission on the part of the prosecution by the learned trial judge. He cited Nigeria Gas Co. Ltd v. Onwubuya (1998) 10 NWLR pt. 569 Pg. 322 at 335; Bello v. Fayose (1994) 2 NWLR pt. 327 Pg. 404 and Amadi v. Nwosu (1992) 5 NWLR Pt. 241 Pg. 273 at Pg. 284.
He argued that the reasons given by the learned trial judge for admitting the statement was faulty since the reasons did not prove the voluntariness of the statement. He argued that the following reasons given by the trial judge viz:
- That the Appellant himself admitted that he was arrested while in company of Sebastian Joseph.
- That virtually all the prosecution witnesses except PW 1 and PW 5 took part in the arrest of the Appellant.
- That PW 5 who recorded the statement of the Appellant spoke the same Tiv Language as the Appellant.
- That the Appellant was taken before a Superior or Senior Police Officer who also counter signed the statement should not be enough to convince the learned trial judge that the statement was voluntarily made by the Appellant.
Learned Appellant’s Counsel urged the court to expunge the improperly admitted confessional statement from the record and allow grounds 1 & 3 and this issue based thereon.
In reply learned Respondent’s Counsel Mr. J.A. Mumini D.P.P. Kwara, argued that the abortion of the trial within trial was caused by the incessant absence of the Appellant’s Counsel and the fact that the Superior Police Officer ASP Fashiku had to come from Ekiti State. He submitted that the procedure adopted by the court was consented to by the Defence and the Appellant cannot thereafter turn around to deny consent he voluntarily gave.
He further submitted that the Appellant himself denied making a statement at all and in such case, the court would be entitled to admit the statement as voluntary but later consider the weight to be attached to it, thus a trial within trial would not be necessary. He cited Nsofor v. The State (2002) 10 NWLR Pt. 775 Pg. 274 at 289. He further submitted that the procedure followed PW 5 in recording the statement of the Appellant in Tiv Language and translating it into English is the correct one and that even failure to record in Tiv Language ab initio does not ipso facto make the statement inadmissible especially when the recorder could speak both languages. He cited State v. Adatu (1980) 2 NCR Pg. 33, Olalekan v. The State (2002) FWLR Pt. 91 Pg. 1605.
He argued that the allegation of lack of fair hearing was untenable as the learned trial judge reviewed all the evidence in the case before admitting the confessional statement.
The crux of this issue is whether or not the learned trial judge ought to have adopted the procedure of failing to conclude the trial within trial and then admitting the confessional statement during the course of the judgment.
The learned trial judge on Pg. 110 of the record said obiter as follows:
“The statement of the 1st accused was neither admitted nor rejected during trial within trial but after reviewing the case for the prosecution and the defence of the accused person the
Court shall then look at the statement of the 1st accused and rule on whether to accept or reject it.
In the course of the judgment, the learned trial judge held as follows:
“The 1st accused also testified that he was beaten and tortured at the police station Ilorin and that his recorded statement was forcefully obtained with this scanty evidence of the 1st accused the court cannot do otherwise than to admit the statement of the 1st accused as an exhibit in this case…. ”
….. ”Furthermore, the police officer (PW5) who recorded the statement of the 1st accused spoke the same Tiv language as the 1st Accused person. PW5 translated the volunteered statement into English language from Tiv language 1st accused signed the statement and PW5 also countersigned.
The 1st accused was according to the testimony of PW5 was taken before Superior or Senior Police Officers who also countersigned the 1st accused’s recorded statement The objection of the learned counsel to the 1st accused raised on the admissibility of the statement as an exhibit is hereby accordingly overruled The testimony of the 1st accused that he was tortured and forced to make the statement is found to be false and an afterthought.
The recorded statement of the 1st accused is hereby admitted in this proceedings and accordingly marked as Exhibit F.”
It is pertinent to note that in this case, the evidence of the Appellant was not heard at all during the trial within trial. On 15/7/2003 the prosecution asked for adjournment to get the Defence Counsel to “resolve the trial within trial then we close the case for the prosecution.”
On the next date of adjournment, the prosecution formally closed their substantive case “in the interest of justice and fair hearing” ….”because all attempts to get more police witnesses had failed.” The case was then adjourned for substantive defence. Thus the trial within trial was aborted without a resolution one way or another.
Pg. 122 of the Record shows that the learned trial judge considered that PW 5 who recorded the statement of the Appellant spoke Tiv and that the statement was taken before a Superior Police Officer. The learned trial judge did not examine the scant evidence at the trial within trial before making a finding and admitting same as exhibit.
I am of the view that a trial within trial means what it says. A trial consists of the evidence of both parties, the address by their counsel and a judgment, in this case a ruling on the issues of fact contested by the parties rendered by the presiding judge. A trial is not a trial where all these steps are not followed. A trial is not a trial where it is abridged for the sake of convenience. The proper procedure in trial within trial is that the prosecution witnesses must give evidence and be cross-examined first, as to the voluntariness of the statement being retracted by the Accused since who asserts must prove. The Accused person is then called upon to give evidence of the incidents of threat and or inducement which compelled him to make the statements involuntarily. Where there are more than one confessional statement made on different days at different times or places, and such statements have been retracted by the accused on the basis that he was induced to make them contrary to S.28 of the Evidence Act, their admissibility must be tested one by one and by a trial within trial. There cannot be a short cut in this procedure. The State prosecuting will lead evidence first and be cross-examined by the Accused or his Counsel. Thereafter the Accused person will be led in evidence and cross-examined. Then counsel on both sides would be at liberty to address the court. The court thereafter will then deliver a ruling on the admissibility of the (each) confessional statement.
Where it is rejected, it will be marked rejected, where it is admitted, it will be admitted and marked as Exhibit. The practice and procedure adopted in criminal trials over the years has been that on the admission of the confessional statement as Exhibit, the trial judge will cause the police officer who tendered the statement to read both the vernacular and English versions in open court to the hearing of the Accused person and his counsel. This will further enable the Accused to know details of the evidence against him with a view to preparing his defence. Needless to say that this procedure was not adopted in this case probably because of the lengthy trial and the unavailability of prosecution witnesses on time. Be that as it may, there is really no room in criminal trials for the short circuit of the procedure. I am of the view that in spite of the circumstances of this case which are not unusual in respect of criminal trials in Nigeria, the proper procedure should have been followed by the learned trial judge. See Obidiozo v. The State Supra Effion v. State (1998) 5 SCNJ 158.
In Solola v. State (2005) 2 NWLR Pt. 937 Pg. 460 at Pg. 498, the Supreme Court held as follows:
“If a confessional statement is contested at the trial, procedural law requires that the trial Court should conduct a trial-within-trial for the purpose of determining the admissibility or otherwise of the statement. ”
Also in EKURE V. STATE (1999) 13 NWLR (pt. 635) 456 @ 467 the Court of Appeal stated the principle thus:
“The issue of voluntariness of a statement to the police is taken seriously by the Courts. If the statement is not shown to have been voluntary it is not received in evidence on the ground that it would not be safe to receive a statement made under any influence of fear or hope of advantage or by oppression, it would not therefore be admitted, and it is admitted without a trial within a trial it should be expunged as inadmissible. In the instant case, exhibit 1 having been wrongfully admitted should along with other findings based on it be expunged.”
It is clear in this case that even though an objection was made at the appropriate time, trial within trial was not properly concluded. The admission of the statement by the learned trial judge at the judgment stage was clearly wrong. In the circumstances, Exh. F was wrongly admitted and it is hereby expunged from the records. See Balogun v. A.G. Federation (1994) 5 NWLR Pt. 345 Pg. 442 at Pg. 455.
The second issue is whether the case of culpable homicide against the Appellant was proved beyond reasonable doubt. In other words as put by the Respondent’s Counsel, whether the conviction of the Appellant for the offence of culpable homicide was based solely on the Appellant’s confessional statement and having been expunged, the prosecution’s case against him became baseless and the learned trial judge should not have convicted him.
Learned Appellant’s Counsel submitted that the Appellant was charged under S. 221 of the Penal Code and that to prove this offence; the prosecution must establish the following:
- That the death of a human being had actually taken place, in this case the death of PC Rotimi Jeremiah.
- That such death was caused by the Appellant.
- That the act of the Appellant was done with the intention of causing death; or that it was done with the intention of causing bodily injury.
He submitted that the entire case of the prosecution rested on circumstantial evidence. The body of PC Rotimi Jeremiah was not found. He argued that the trial court took his death for granted as if it was a legal presumption and instead based the judgment on sentiment. He argued that the death of PC Rotimi Jeremiah was not proved beyond reasonable doubt to warrant the lower court’s consideration of “the other two elements of the offence. He argued that the evidence put before the court by the prosecution i.e. quantity of human hair, torn jumper and trouser and a cutlass did not collectively lead to the presumption of the death of the deceased since none of them were forensically linked with the deceased and/or the Accused during the prosecution. There was no evidence given of blood stains on the yellow jumper and trouser allegedly worn by PC Rotimi Jeremiah. Learned Appellant’s Counsel argued that there are unanswered questions emanating from the prosecution’s evidence which cast doubt on the guilt of the Appellant. He said the prosecution failed to prove how a fire could burn a whole human being including his bones and skull but left his hair and only four of his teeth. If the purpose was to make the corpse of the deceased disappear, why were his clothes not burnt? He submitted that any doubt should be resolved in favour of the Appellant. He cited Udo v. State (1992) 2 NWLR pt. 158 Pg. 567 at Pg. 587.
He also attacked the evidence of the Police and stated that the action of the Police in entrusting a stolen motor-cycle to the suspected thief did not accord with common sense and that the evidence of the Appellant denying the commission of the crime is rational and credible. He submitted that though a case of culpable homicide can be established by circumstantial evidence, the totality of the circumstantial evidence proffered in this case did not establish with the “accuracy of mathematics” either that P.C Rotimi was killed nor that the killing was done by the Appellant. The evidence proffered in this case against the Appellant was equivocal but the circumstantial evidence that will support a conviction for murder must lead to one conclusion – to wit – that murder had been committed and that it was committed by the accused person. See STATE V. USMAN (2005) 1 NWLR Pt. 906 Pg. 80 at Pg. 124.
In reply, learned Respondent’s Counsel argued that from the totality of the evidence before the trial court, there was overwhelming circumstantial evidence that established the necessary elements of the offence of culpable homicide punishable with death and that it was committed by the Appellant.
He submitted that the guilt of the Accused in a criminal trial can be proved by direct or circumstantial evidence. He cited the following cases:
ARUMA VS. STATE (1990) 6 NWLR PT. 153 Pg. 125; AHMED VS. THE STATE (2001) 12 SCNJ 1; OZAKI VS. THE STATE (1990) 1 NWLR PT 127 Pg. 92. In the case of STATE VS. USMAN (2005) 1 NWLR PT 906 Pg. 80 at 124, the court held that: “Evidence which could ground a conviction could be direct or circumstantial.”
He argued that all the Prosecution witnesses (PW 2, PW 3, PW 4, and PW6) gave evidence that the 1st Accused/Appellant was arrested while riding a motorcycle allegedly stolen and the witnesses gave credible evidence that he was brought to Erin-Ile Police Station and handed over to PW 6 on duty that day.
The unchallenged evidence of P.W. 6 was to the effect that the Appellant was asked to be escorted by the deceased (PC Jeremiah Rotimi) to Ipee in order for the Appellant to bring the documents of the motorcycle he was alleged to have stolen. All the prosecution witnesses gave evidence that since both the Appellant and PC Rotimi left Erin-Ile Police Station, on 24/7/94 the latter has not been seen alive again till date. After the arrest of the Appellant at Ede in Osun State i.e. after a frantic search it was in evidence by PW 5 that the Appellant himself led the Police to the scene where they committed the crime and items which included cloths identified (by PW 3, 4 and 6) to have been worn last by the decease, were recovered.
Learned Counsel also argued that apart from the Appellant’s retracted confessional statement, there is evidence on Pg. 70, 74 and 88 of the record that the Appellant made oral confessions to PW2, PW3, PW4, PW5 and PW 6. He submitted that an admissible confession of an accused person includes both oral and written admissions made by the accused stating that he committed the offence. See Section 27 of the Evidence Act where Confession is defined as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”. See OKEKE VS. THE STATE (2000) 10 NWLR Pt. 675 Pg. 423 at 437.
Learned Respondents Counsel argued that it is not in all cases of culpable homicide that the body of the deceased is recovered or found. He argued that death can be presumed where the deceased was last seen with someone and could not be seen again. Under the doctrine of “last seen” in Homicide cases, the law presumes that the person last seen with the deceased, in the instant case, the Appellant, bears full responsibility for his or her death. He cited ACHIBONG VS STATE (2006) ALL FWL (PT 323) 1747 @ 1784; IGABELE VS. STATE (2006) ALL FWLR (PT. 311) 1797 @ 1829-30.
The learned trial judge reviewed the evidence as follows on pages 114 – 115 & Pg. 116 of the Record.
“The facts of the case at hand as presented by the prosecution shows that the 1st accused Moses Jua, was arrested with stolen Suzuki motorcycle. On arrest he was detained at Erin-Ile Police Station together with the machine.
Earlier on the same day PC Rotimi Jeremiah was detailed to escort the 1st accused to lpee near Erin-Ile, where the 1st accuse said the particulars of the motorcycle were being kept. With the motorcycle, the 1st accused and PC Rotimi Jeremiah left for lpee and the duo never returned to Erin-lie again.
Three weeks later, the 1st accused was arrested at Ede in Osun State together with the stolen Suzuki Motorcycle – humph by men (SIC) the 1st accused had changed the registration number of the Suzuki motorcycle to a different number.
The 1st accused did not in his testimony deny the fact that he was arrested with a motorcycle suspected to be stolen at Erin-Ile on 27/2/94. He however denied having anything to do with PC Rotimi Jeremiah.
The testimonies of PW 2, PW 3, PW 4 and PW 6 – all revealed that the 1st accused was arrested at Erin-Ile with a stolen motorcycle and that PC Rotimi Jeremiah was asked to follow 1st accused to Ipee to being (SIC) the particulars of the motorcycle.
These witnesses also gave evidence to the effect that PC Romiti and 1st accused never returned to Erin-Ile Police station again and that search for PC Rotimi and 1st accused commenced immediately.
These witnesses together with PW 5 also identified the clothes worn by PC Rotimi Jeremiah on the day he was last seen.
PW 5 testified that the clothes were recovered at Ipee at the scene of crime and that her (SIC) was among the team of detectives that recovered the clothes. These clothes,
Exhibit Al and A2 were identified by PW1, PW4, PW5 and PW6 ….. ”
”It is the view of the court that in the case at hand, the prosecution has proved its case beyond reasonable doubt against the 1st accused person for the offence of murder punishable under section 221 of the Penal Code.
The prosecution witnesses testimonies were cogent uncontradicted; sufficient and have not in any way been rebutted by the evidence given by the lst accused person.
Therefore found the 1st accused person, Moses Jua, guilty charged under Count I of the charge for causing the death of PC Jeremiah Rotimi – an offence punishable under section 221 of the Penal Code Law.”
In this case, there is no evidence of eye witness to the crime, there is no corpus delicti – dead body and there is no confessional statement. Before a conviction can be grounded however, there must be cogent and compelling circumstantial evidence that leads to no other conclusion except the guilt of the Appellant.
Let us consider the various pieces of circumstantial evidence adduced by the prosecution and see if they collectively make a compelling case against the Appellant to warrant his conviction. First, is there any credible evidence of his oral admission of guilt?
Second, is there credible evidence that the deceased was last seen in the company of the Appellant to make the last seen theory in homicide cases applicable to this case?
Third, is there enough credible evidence to sustain a conviction of guilt in the absence of a corpus delicti (dead body)?
On the first question, it is relevant to make a brief review of the portion of the prosecution’s case that was not controverted by the defence during the course of the trial.
It was the prosecution’s evidence at the trial that one Mashood Jimoh (PW2) saw the Appellant riding a Motorcylce earlier stolen from his father.
PW2 then drew the attention of Jacob Saliu (PW3) and Abu Ayegba (PW4) (both Police Officers he met on his way to the Police Station). The officers approached the Appellant and demanded for the proof of the ownership of the motorcycle.
It was the further evidence by the prosecution witnesses that the response by the Appellant was that the motorcycle’s particulars were at Ipee.
The Appellant was then taken to Erin-Ile Police Station and P.C. Oyedare (PW6) was ordered to detain him and the motorcycle at the, station, while the complainant was directed to go and produce his own proof, and PW 3 and PW4 went off to Offa. Later at the station, one CPL Uzor Dekari who spoke the same Tiv language with the Appellant prevailed on PW6 to allow the Appellant to be escorted by another police officer to Ipee where the Appellant claimed the motorcycle particulars were. PC Rotimi Jeremiah was then drafted to follow the Appellant to Ipee and that was the last thing heard of PC Rotimi till date.
PW6 was emphatic in his evidence that PC Rotimi was the officer detailed to go with the Appellant to Ipee, in order for the Appellant to produce the motorcycle documents. Since then, the said PC Rotimi has not returned alive or dead.
After a tireless search by a team of police officers and all officers involved in the initial arrest of the Appellant and sending of signals to diverse police stations and posts, on 28/3/94, information came from Ede police station in Osun State that one Moses Jua was arrested for another offence.
PW4 and one PC Paul Makanjuola went for the identification of the Appellant and brought him to Erin-Ile Police Station.
PW 3, PC 187143 Jacob Saliu attached to Erinle Police Station Kwara State gave evidence on Pg. 70 of the Records as follows:
“This is the machine I arrested the Accused with. The other Accused persons were already in detention before the 1st Accused was arrested at Ede”
… Under Cross-examination, by Mr. Oyeleye; Applicants Counsel at the lower court he said:
“1st Accused mentioned all the other Accused person. He mentioned their names in our office Erinle when I too was there. All the suspects were in the cell at the time the 1st Accused mentioned their names in connection with the crime. ”
PW4 Sgt No. 70691 Abu Aiyegba gave evidence contained on Pg. 72 of the Records as follows:
“During interrogation at Ede Police Station, he confessed that himself and one Joseph, Ahen Sebastin were the people who stole the motorcycle and that the father of Sebastin Telu was there when they killed PC Rotimi.
On this revelation, I had to send PC Paul Makanjuola back to Erinle to meet Inspector Nelson Onuh to rush to Ori-Ita to arrest Joseph Ahen Sebastin because the 1st accused had mentioned his name.”
Under cross-examination by the Appellant’s Counsel, Mr. Oyeleye, PW4 swore as follows on Pg. 74 of the Records:
1st accused said it was the 2nd accused who instructed 1st and 3rd accused to kill PC Rotimi. This statement was made to us orally. The 1st accused told us this at Ede Police Station.
The 3rd accused was in detention at State CID Ilorin as at that time Sgt. Amuda Dagba and myself affected the arrest of 2nd accused is his landlord. ”
Thus, the evidence on record is that before the Appellant made any recorded statements to the Police which were recorded by PW5 Sgt. No. 114885 Innocent Agbe, a detective attached to the S11B, Ilorin at the time, he had made oral admissions of guilt to the policemen on duty where he was arrested at Ede and later at Erinle Police Station. The evidence of PW 4 in this regard was not shaken under cross-examination.
I agree with the learned trial judge that the Appellant had admitted commission of the crime orally to those who arrested him initially before he was ever transferred to the S11B in Ilorin where the PW5 recorded the retracted statements in writing.
Where an accused person is the person with whom the deceased was last with or seen with alive, the implication of or necessary inference to be drawn from that facts is that some form of explanation is required from the Accused. See Monday Nwaeze v. The State (1996) 2 SCNJ 42. In his evidence on oath during the trial, the Appellant denied leaving the station with PC Jeremiah Rotimi. He offered no explanation for the where about of them said police constable. We have however on the other hand the evidence of the police officer who instructed PC Rotimi to follow the Appellant to collect the vehicle particulars.
According to P.W. 3 & 4, who were officers attached to Erinle Police Station, the Appellant was arrested for stealing a motorcycle and both he and the motorcycle were detained at Erinle Police Station in the custody of PC Nobert Oyedare No. 186002.
CPL Nobert Oyedare gave evidence as PW 6 as follows on Pg. 86 – 88 of the Record:-
“On 27/2/1994, I was on relieve duty at Erin-Ile Police Station, At about 1:20pm while on duty one Sgt. Abu Ayegba and PC Salihu Jacob both attached to Oyun Division Elemona, bought one Moses Ajua to the Station with a Motorcycle Suzuki 100 with Reg. No. OY 3562 G, to the Station the Motorcycle reasonably suspected to be a stolen motorcycle.
I was asked to detain the said Moses Ajua, the 1st Accused. After searching him, I collected a spectacle and a pair of shoes. On the way taking him to the cell, I saw a Corporal, traffic warden – Cpl uzor Dekari attached to MTD Oyun Division Elemona.
He came inside the station and spoke Tiv language with first accused, Moses Ajua CPL Uzor then said to me that the machine suspected to be stolen belonged to the 1st accused and he had known 1st accused for a long time. , He said I should call him the Inspector crime. I replied him that I was the only person on duty and could not leave the station.
As the Cp1. Worried me more, I then went to the house of Inspector Crime and I did not meet the Inspector Crime at home.
When I came back to the station I told Cpl Uzor that the Inspector Crime was not at home.
Cp1 Uzor then asked me to follow to Ibukun Olu Baptist Church Area, Ipe, to bring the particulars of the said motorcycle. I did not follow the 1st accused as I told Cpl. Uzor that I can not leave the station.
Cp1. Uzor then said I should go and call Constable Rotimi Jeremiah, the deceased I went out to see , if the officer in-charge of the station was around, and I now saw Constable Rotimi Jeremiah coming. Cpl. Uzor now told Rotimi Jeremiah to follow the 1st accused to the Ibukun Olu Baptist Church Area, Ipee.
Rotimi Jeremiah then asked me to book their movement to Ibukun Olu Baptist Church Area, Ipee, which I did.
After booking their movement, they left with the motorcycle Reg. No OY 3562 G, both – 1st accused and constable Rotimi Jeremiah.
After they left, I waited till my handling over time, about 6pm – I did not see them return.
After my handling over, I reported to them, that PC Rotimi Jeremiah and one Moses Ajua left for Ibukun Olu Baptist Church – Ipee, to collect the particulars of motorcycle Reg. No. OY3562 G.
I never saw PC Rotimi Jeremiah again. On that very day, four of us Policemen went to the house of Supol Festus Olayinka’s house, the OC in-charge, Erinle Police station.
Instantly, he picked up his vehicle key and said we should go for searching. We left for Ipee Police Outpost, to check if there is any entry made of his arrived in that area.
There was no entry made.
We now went to General Hospital Offa and Olalomi Private Hospital Offa. We found no trace of any accident involving PC Rotimi Jeremiah reported in the Hospitals. On the day in question, PC Jeremiah Rotimi was wearing a yellow guinea brocade. ”
His evidence was not shaken under cross-examination. I am of the view that the learned trial judge was right in believing the evidence of the prosecution witnesses particularly PW 6 as against that of the Appellant, to the effect that the deceased was last seen alive in the company of the Appellant. The Appellant, who had left the Police Station with PC Jeremiah Rotimi ostensibly to produce his vehicle particulars, was not seen until twenty-one days later and PC Jeremiah Rotimi had not been seen since. There is no other explanation than that the PC Jeremiah Rotimi is dead.
Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased. See Lateef Adeniji v. The State (2001) 5 SCNJ 371.
In Adepetu v. The State (1998) 7 SCNJ Pg. 83, the Supreme Court held that the conduct of the Accused when the deceased was last seen with him must be held to be evidence of guilt and not mere suspicion. In the case at hand, the Appellant who was supposed to go and bring back documents of his motorcycle to the police station did not return that day or the next day with the particulars. He was arrested weeks later in another place on another offence. I cannot draw any other inference than that the Appellant was obliged to explain the where about of PC Rotimi Jeremiah and having failed to do so, his death at the hands of the Appellant can be presumed.
There is no doubt that in this case, the prosecution was not been able to produce a corpus delicti. The Appellant look them to a spot where they recovered some items viz human hair, clothes allegedly worn by the deceased on the day he was last seen and some teeth. There is however no iota of forensic evidence led by the prosecution to link these items to the deceased (except the yellow trouser & jumper guinea brocade). Be that as it may, clothes worn on the day the deceased was last seen were recovered from the scene where the Appellant told the police that he was killed. Even though his body could no longer be recovered, the recovery of his clothes from information given by the Appellant forms a link between the Appellant and the deceased. The Supreme Court in Babuga v. The State (1996) 7 NWLR Pt. 460 Pg. 229 at 296 opined per Onu JSC thus:
“As a matter of fact, conviction can properly be secured in the absence of a corpus delicti where there is a strong, direct evidence. See: Rex v. Sala Sati (1938) 4 WACA 10; Commissioner of Police v. Robert ogbame Cofie (1941) 7 WACA 179 and Edim v. The State (1972) 4 SC 160 at 162 where the Supreme Court following Ogundipe & Ors. vs. The Queen (1954) 14 WACA 458 held:-
”It is true that the body of the deceased has not been recovered. But it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction. ”
“Be it noted that it is not an immutable requirement of the law that the cause of death must be proved by medical evidence. See Katto Dan Adamu v. Kano N.A. (Supra); Akpan v. The State (1972) 4 SC 6. All that is required to be proved is that the death of the deceased, as indeed happened in the instant case; was the direct result of the act of the accused to the exclusion of all other reasonable causes. See R. v. Nwokocha (1949) 12 WACA 453; R. v. Owe (1961) 2 SCNLR 354; (1961) 1 All NLR 680 and Ogundiyan v. The State (1991) 3 NWLR (Pt. 181) 519.”
Absence of the corpse of the deceased does not prejudice prosecutions case where there is strong direct evidence. See Abiauta Okendu Ubani V. The State (2003) 12 SCNJ 11. I hold the view that the recovery of the deceased clothes where the Appellant led the police as the spot where he was killed is strong direct evidence that he had been killed by the Appellant and others.
The burden of proof in all criminal cases rests on the prosecution. The Accused has no obligation to prove his innocence except in certain circumstances where same explanation may be required from the accused person. See Adeoti v, The State (1998) 7 SCNJ 83. Circumstantial evidence will be sufficient to support conviction when it is cogent, complete, unequivocal, compelling and leads irresistibly to the conclusion that the Accused and no one else committed the offence and leaves no room for reasonable doubt. Mathematical accuracy is required. Peter v. The State (1997) 12 SCN 53,
Circumstantial evidence may be a combination of circumstances against an Accused, none of which taken alone can form cogent proof of guilt but when taken together create strong conclusions of his guilt with a high degree of certainty. There is also the need to ensure that no other co-existing circumstance which weakens or destroys such an inference of guilt exists. See Niyi Akinmoju v. The State (2000) 4 SNC 149.
There is no doubt that each taken in isolation the circumstantial evidence against the Appellant may not be weighty. However, when considered together, I am of the humble view that they make a compelling case against the Appellant to warrant his conviction for the offence. The oral confession of the Appellant immediately he was arrested, the fact that he has not been able explain the where about of the deceased who was last seen with him, his taking them to the scene of crime where the deceased clothes were recovered, all together point inescapably to the fact that he, is guilty of the death of the said PC Rotimi Jeremiah.
I share the view of the learned trial judge expressed on pg. 113 of the record that:
‘There is therefore before the court enough circumstantial and cogent evidence to ground a conviction for the offence of murder against the 1st accused as he was the only person last seen with PC Rotimi Jeremiah on 27/2/94/ the last day the police corporal was last seen.”
For reasons given above, I affirm the conviction of the Appellant by the learned trial judge and dismiss this appeal.
Other Citations: (2007)LCN/2396(CA)
