Mustapha Mohammed & Anor V The State (2007)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC 

This is a murder appeal. The prosecution’s case is that on 11th August, 1995, one Asimiyu Salawu told Oladipupo Fasola (the deceased) that the 1st appellant wanted to see him. The deceased left to see the 1st appellant. After a long time, the deceased did not return. PW1 went in search of him. He got to the house of the 1st appellant and asked for the whereabouts of the deceased. The 1st appellant denied seeing the deceased. A report of missing person was made to the Police. The 1st appellant was arrested. After the arrest he took the Police to a bush where the headless corpse of the deceased was unearthed from a shallow grave. The appellants were charged with conspiring to commit murder and murder of Oladipupo Fasola. The trial Judge convicted the appellants accordingly. Their appeal to the Court of Appeal was dismissed. They have come to this court. Briefs were filed and exchanged. Appellants formulated the following issues for determination: “1. Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubt? 2. Whether it is not the duty of the prosecution to prove that circumstantial evidence does exist and further that the circumstantial evidence thus proved is such that leads to no other logical conclusion but the guilt of the accused person to ground conviction.” The respondent formulated the following issue for determination: “Whether the charge of murder preferred against the Appellants was proved by the prosecution beyond reasonable doubt.” Learned counsel for the appellants, Mr. Oladipo Okpeseye, submitted on Issue No. 1 that for the prosecution to prove its case beyond reasonable doubt on the charge of murder, it must prove not any but all of the following, that: (a) the deceased died, (b) Death of the deceased resulted from the act of the accused person, (c) The act of the accused person was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He cited Onah v. The State (1985) 3 NWLR (Pt. 12) 236. He argued that the prosecution totally failed to link the death of Oladipupo Fasola to the act of the appellants and therefore did not prove the charge of murder against them beyond reasonable doubt. He cited Uyo v. Attorney-General Bendel State (1986) 1 NWLR (Pt. 17) 418 at 426 and section 138 of the Evidence Act. He said that the Court of Appeal was wrong in holding that because there was no reply brief on the circumstantial evidence, the fact was conceded by the appellants. He contended that with or without a reply brief, the evidence on record, not the respondent’s brief, must establish the circumstantial evidence. PAGE| 2 Relying on section 36(5) of the 1999 Constitution, section 138 of the Evidence Act and the cases of Okoro v. State (1988) 5 NWLR (Pt. 94) 255 at 288; R. v. Oledima 6 WACA 202; Isiekwe v. State (1999) 9 NWLR (Pt. 617) 43 at 63; R. v. Nwokocha (1949) 12 WACA 453; R. v. Owe (1961) 1 All NLR 680; Peter v. State (1994) 5 NWLR (Pt. 342) 45 at 68; Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202 at 215 and Alarape v. State (2000) 5 NWLR (Pt. 705) 79, learned counsel submitted that the prosecution did not successfully link the act of the accused persons with the death. Where a court is to rely on circumstantial evidence and or common purpose both the circumstance to be relied upon and of the common intention must be established by facts capable of proving by inference that death was caused by the act of either or both the appellants with mathematical accuracy, counsel argued. He cited Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 at 212. Referring to Ogbali v. The State, SC 71/1982 (unreported), counsel contended that for common intention to apply, the prosecution must prove three elements: (i) there must be showing that the accused persons had formed a common intention to prosecute an unlawful purpose together, (ii) in furtherance of such unlawful purpose a person was killed in the circumstances amounting to murder, (iii) The death of that person assaulted is a probable consequence of the prosecution of the unlawful purpose. Dealing with the evidence of DW1, DW2, DW3 and DW4, learned counsel submitted that the prosecution did not prove common purpose. Relying on Onah v. The State (supra); Muka v. The State (1973) 5 SC 231 and Okafor v. COP (1965) NMLR 89, learned counsel submitted that suspicion no matter how strong cannot found a conviction. On Issue No. 2, learned counsel repeated so much of the arguments on Issue No. 1. He further relied on Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 at 212; Abieke v. The State (1975) 9-11 SC 60 at 65; Anakwe v. The State (1976) 9-10 SC 154 at 164 and Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 471 and section 148 of the Evidence Act. He examined the evidence of PW2, 3, 4 and 5 and submitted that the facts relied on by the prosecution to make the inference or proposition that the appellants murdered the deceased are most improbable when considered against the surrounding circumstances and cannot sustain a conviction. He urged the court to set aside the judgment, conviction and sentence of the appellants and enter in its place discharge and acquittal. Mrs. A. A. Babawale, learned DPP of Ogun State, contended on the only issue that the prosecution in proof of any criminal charge against an accused person can rely on the following forms of evidence in proof of its case, viz: (a) confessional statement or (b) circumstantial evidence or (c) evidence of eye witnesses. She cited Emeka v. State (2001) 14 NWLR (Pt. 734) 666 at 683. (2001) 9 SCM, 34 She said that the prosecution relied on circumstantial evidence and confessional statements of the appellants in proof of its case. She cited Akinmoju v. The State (1995) 7 NWLR (Pt. 406) 204 at 212 and Igabele v. State (2004) 34 WRN 83 at 98: PAGE| 3 On the submission of learned counsel for the appellants that they were not linked to the murder of the deceased, counsel submitted that the circumstantial evidence in the case led irresistibly to the guilt of the appellants as the evidence linked the appellants to the death of the deceased. Calling in aid the case of Ariche v. State (1993) 6 NWLR (Pt. 302) 752 at 764, learned counsel contended that where the appellants were the last linked with the deceased alive, the appellants are to furnish an explanation as to what led to the death of the deceased. On the submission of counsel for the appellants that failure of the prosecution to call one Asimiyu Salawu, brother to the 1st appellant was fatal to its case, learned counsel contended that the prosecution is not bound to call every available witness, but such number of witnesses to prove its case beyond reasonable doubt. He cited Ekpenyong v. State (1991) 6 NWLR (Pt. 200) 683 at 698. She urged the court to uphold the judgment of the two lower courts and dismiss the appeal. Circumstantial evidence or confessional statement can result in the conviction of an accused for the offence of murder if the court is satisfied with the circumstances leading to the evidence and the confessional statement was made voluntarily and not under threat or duress. I will take the two aspects in turn. First, circumstantial evidence. A court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. See Ibo v. The State (1971) NMLR 245. For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person. See The State v. Ifu (1964) 8 ENLR 28. Before an accused person can be convicted for murder on circumstantial evidence, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable-doubt. The circumstantial evidence should be cogent and compelling as to convince the court that no rational hypothesis other than murder can the facts be accounted for. See Esai v. The State (1976) 11 SC 39. A conviction for murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics. See The Queen v.Agwo (1956-84) 10 SCND 35. A court cannot convict on circumstantial evidence, especially in a case of murder where such evidence points in more than one direction. See The Queen v. Iromachi (1956-84) 10 SCND 34. The Court of Appeal, per Fabiyi, JCA, said at pages 142 and 143 of the Record: “From the evidence garnered at the trial court, it is clear that the 1st Appellant sent his junior brother Ashimiyu to call the deceased on 11-8-95 at about 6.00 a.m. The deceased went to the 1st Appellant’s house and got into the waiting hands of both Appellants. The 2nd Appellant, in his evidence in chief said he saw the deceased in the 1st Appellant’s house on the fateful day and that he used a charm – ‘subusere’ to hit him on the chest and he became weak and fell down. The next thing was the deceased’s indecent burial at 1st Appellant’s plot thereafter. Next was the delivery of the deceased’s head to the 3rd Accused by the 1st Appellant according to that witness on the same 11-8-95 to make ‘awure’, i.e. concoction, for money making. The Appellants were the last linked with the deceased alive. From the whole gamut of the circumstances, Appellants are sufficiently linked with the cause of death of the deceased. It will be an eye wash to find otherwise in my humble opinion. PAGE| 4 The deceased was last in the company of the Appellants before they started to embark upon pranks; it seems.” The following circumstantial evidence can be gathered from the above findings of the Court of Appeal: (1) the 1st appellant sent his younger brother, Ashimiyu, to call the deceased. (2) The deceased answered the call of the 1st appellant and went to the house of the 1st appellant and was received by both the 1st and 2nd appellants. (3) The 2nd appellant used a charm “subusere” to hit the deceased on the chest and he became weak and fell down. (4) The indecent burial of the deceased at the plot of the 1st appellant. (5) The delivery of the head of the deceased to the 3rd accused by the 1st appellant on 11th August, 1995 (the day of the murder) “to make “awure”, i.e. concoction for money making. (6) The appellants were the last persons with the deceased alive. What is that submission that the appellants were not linked to the murder in the light of the above! The learned trial Judge said at pages 84 and 87 of the Record: “The prosecution through the evidence of PW1, PW2, PW3, PW4 and PW5 have proved beyond reasonable doubt all the ingredients (a), (b), (c) above, which evidence was cogent and had linked the 1st and 2nd accused with the death of the deceased in a positive act of the 1st and 2nd accused causing serious injury to the deceased which in turn resulted directly in the death of the deceased… In the instant case, the facts proved in evidence by the prosecution led to the irresistible conclusion that the 1st and 2nd accused persons and no other person or persons had the same opportunity to murder the deceased and that they were in fact those who murdered him… Circumstances have shown that the 2nd accused used charm – subusere (fall down for fun) on the chest of the deceased, who actually fell down in the house of the 1st accused – though did not die and evidence of PW1-5 showed the condition – signs of struggling around the shallow grave dug in the plot of land belonging to the accused…” I was not there when evidence was given in court. The learned trial Judge was there. He listened to the evidence of the prosecution witnesses. He came out with the above. I do not see any perversity in the findings. This court cannot replace the above findings borne out from the evidence and plant its own. The Record has no space for that and I will not attempt it because it is against our adjectival law. A case is said to be proved beyond reasonable doubt either by direct oral evidence or by circumstantial evidence. Although witnesses can lie, circumstances cannot lie. Consequently, and in that sense, circumstantial evidence affords better proof beyond reasonable doubt – see Adio v. The State (1986) 2 NWLR (Pt. 24) 581. That takes me to the confessional statements made by the appellants. PW3, Sgt. Oluwole Babalola, in his evidence in-chief at pages 30 to 33 said that he obtained statements which were confessional in nature from the appellants and in compliance with the procedure, took the appellants to Mr. D. O. Aremu, Deputy Superintendent of Police, who signed the statements after the appellants confirmed their correctness. Mr. Aremu also asked the appellants whether the confessional statements were obtained under duress or promise or threat and they answered “No”. PAGE| 5 Where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone if the confession is positive, direct and properly proved. See Milla v. The State (1985) 3 NWLR (Pt. 11) 190; Achbua v. The State (1976) 12 SC 63 and Obosi v. The State (1969) 1 NMLR 204. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction. See Obosi v. The State (supra) and Ataniyi v. The Queen 15 WACA 34. A conviction for murder can be based on the confessional statement of the accused. See Stepheno v. Commissioner of Police (1986) 2 NWLR (Pt. 25) 673 and Mbolo v. The Queen (1964) NMLR 49 at 52. It is important to say that when the confessional statements of the appellants were tendered, there was no objection, and so there was no trial within trial. In the absence of objection, this court can come to the conclusion that the statements were made voluntarily by the appellants. This court held in Adio v. State (1986) 2 NWLR (Pt. 24) 581 that a free and voluntary confession of guilt by an accused person, if it is direct, positive and satisfactorily proved occupies the highest place of authenticity when it comes to proving beyond reasonable doubt. The judgment of this court is valid. After all, the accused is the best person and in the best position to say whether he committed the offence or not; although he may decide to hide the truth from the court. If he says that he committed the offence, the prosecution need not prove the offence any longer. The confession is enough proof of the offence beyond reasonable doubt. Learned counsel laboured so much on the issue of common intention or common purpose in the brief. He cited quite a number of cases. Relying on the case of Ogbali v. The State (supra), counsel submitted that as the three elements indicated by Bello, JSC (as he then was) in the case were not proved by the prosecution, the appellants ought to have been discharged and acquitted. I should take the three elements seriatim. The first is that there must be showing that the accused persons had found a common intention to prosecute an unlawful purpose together. This was proved in evidence by the prosecution witnesses. 1st appellant sent the 2nd appellant to call the deceased in the early hours of 11th August 1995. The common intention of the appellants was to murder the deceased, which is unlawful. Both had the common intention to prosecute the unlawful purpose of killing the deceased. The second one is that in furtherance of such unlawful purpose a person was killed in the circumstances amounting to murder. Both appellants played complementary roles in the murder of the deceased. There is evidence that 2nd appellant used the charm of “subusere” to set the ball rolling and the charm which hit the deceased on the chest made him to fall down. The rest of it is now history and that history includes the severance of the head from the body. Who did what in that respect is not in evidence and so I will not speculate as our procedural law does not allow me to speculate. The third one is that the death of that person assaulted is a probable consequence of the prosecution of the unlawful purpose. The third element is anchored on the second one. It is clear from the totality of the evidence before the learned trial Judge that the death of the deceased was not just a probable consequence but a direct consequence of the prosecution of the unlawful purpose to murder the deceased. PAGE| 6 I should say that the above three elements will be assimilated or capable of being assimilated in a confessional statement. Once there exists a confessional statement which is direct, cogent and unequivocal to the fact that the appellants murdered the deceased, the prosecution need not prove any of the three elements or all the three elements. I think I can stop here. I have said enough to dismiss the appeal. The appeal is accordingly dismissed. I affirm the decision of the Court of Appeal. I also affirm the conviction of the appellants for conspiracy to murder and murder of Oladipupo Fasola and the sentence of death passed on them. It is a pity that they have to face the hangman. There is nothing I can do to help them. The law says so and I bow to the law. So be it.

SC. 184/2006