Okoro Mariagbe v. The State (1977)

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G. IRIKEFE, J.S.C.

The appellant in this case was charged with having murdered one KIHODU AJEBOR on 3rd March, 1974 at OWA-OYIBU village in the Agbor Judicial Division of the then Mid-Western State of Nigeria (now Bendel State). He was tried, convicted and sentenced to death and this appeal has been brought against the said conviction. After entertaining arguments from learned counsel representing the parties before us, we allowed the appeal, set aside the conviction and sentence, but promised to give our reasons later.

This we now do.There was evidence before the court of trial that the deceased (KIHODU AJEBOR – male), as was his custom, had left OWA-OYIBU village for his farm along Idumesah road and a few poles away on the morning of 23rd March, 1974.

When he failed to return at around 4 pm, a search party made up of P. W.1 (his wife) and P. W. 2 (his junior brother – of the half blood) set out from the village in search for him just after 6 pm. The two persons on arrival at the deceased’s farm searched in different directions and P. W.2 with the aid of a torch-light (as it was already dark) came upon the dead body of the deceased.

The body, still bleeding freely, had what appeared to be matchet cuts on the hands and neck. The deceased’s neck was almost severed from the rest of the body.
There was evidence of a struggle and disturbance at the spot where the body was discovered. The deceased’s wife raised an alarm which brought other villagers to the scene that night. There is no precise evidence as to how many villagers came to the scene, but be that as it may, both the searchers and the villagers left the body where it was and returned to the village. A report was made to the police at Agbor that night but it was only on the following day that three police officers were detailed to accompany the relations of the deceased to where the body was. There was evidence that no one kept watch over the dead body until the police came and removed it to the mortuary on the following day (i.e. 24/3/74) at about 11am.

Just before the body was removed, one of the police officers announced that he had found a dagger later said to belong to the appellant a few feet away.Although there was no eye-witness to the killing, the prosecution rested its case on circumstantial evidence and relied on the following matters among others as inculpatory evidence:
(a) The fact that the appellant at the time he was picked up on the highway by a taxi-driver on the day the deceased died had his hair heavily entangled with awolowo weeds (a specie of shrubs found in the environs of OWA-OYIBU village) and that the same weeds were found flourishing around the area where the deceased met his death.
(b) The fact that the appellant at the time of being picked up by the taxi-driver (P.W.7) had with him a blood stained matchet and that the native trousers (Shokoto) he had appeared to be thickly stained with blood on its lower region.
(c) The fact that the appellant on being asked by P.W.7 as to how he came by so much blood on his person, lied that someone had cut his foot with a matchet which he in turn had seized from that person, whereas an examination of his two legs by him (P.W.7) had failed to reveal any recent injury on either foot.
(d) The fact that the appellant while in the taxi-cab was talking to himself in the Edo dialect while brandishing his matchet and saying as he did so that war had broken out.(e) The fact that the appellant had to be overpowered by some villagers at OWA-OYIBU village before the blood stained matchet could be wrested from him.
(f) The fact that the clothes admittedly worn by the appellant on the material date were found by the police at URHONIGBE village (appellant’s village) hanging outside as if they had been washed, although this was denied by him.
There was also evidence that some leaves stained with the deceased’s blood were collected from the spot where the body had lain by the police and were forwarded for forensic analysis along with a machete, a dagger and the garments worn by the appellant at the time of his apprehension by the villagers. The forensic report apart from merely stating that the blood specimen found on the leaves belonged to group ‘A’ was completely negative in character in so far as the other exhibits were concerned.

In his defence, the appellant denied committing the offence charged, but admitted ownership of the dagger (Exhibit B) which he said he had left at the home of P. W.4 (the native doctor) who had been treating him for belly-ache and from whose custody he had escaped into the bush in the early hours of the day the deceased died. He further testified that he came by the awolowo weeds in his hair due to the fact that he had remained in hiding in the bush where these weeds were very much in evidence.
At the end of the evidence and after listening to addresses by counsel, the learned trial judge (Ovie- Whiskey, J. as he then was) convicted the appellant as charged.

Before us on appeal, learned counsel appearing on behalf of the appellant sought leave to rely on his amended grounds of appeal.

These grounds, three in number, complain in identical terms, namely, that the sum total of the evidence produced by the prosecution is lacking in that degree of conclusiveness that could form the basis of a conviction in respect of a crime. In other words, it was the view of learned counsel that there were co-existing circumstances which weakened the inference of the appellant’s guilt thus making it unsafe to found his conviction on circumstantial evidence. For the respondent, it was argued that there was sufficient evidence to support the conviction.

A very careful scrutiny of the record has confirmed us in the view that the case made by the prosecution against the appellant fell far short of the degree of conclusiveness sufficient to found a conviction based on circumstantial evidence.
The record is replete with facts which point towards the guilt of the appellant and away from it. A few instances will suffice. If the appellant’s dagger had been left at the home of P. W.4 as he said he did, there was ample opportunity for the latter to deposit it where it was found by the police. There was equally ample opportunity for others to have planted the dagger, more especially as none of those who first came upon the deceased’s body (P.W.1 and P.W.2) testified to seeing any dagger. Further, there was evidence that other villagers had visited the scene prior to 11 am on 24/3/74 when the police removed the body to the mortuary.

An examination of the dagger for finger prints would probably have eliminated the number of persons who handled it. We feel compelled to comment as above in view of the fact that P. W.4 (the native doctor) in whose house the appellant had alleged he left his bag containing the dagger was himself under suspicion and had been arrested while police inquiries were going on in this case as the testimony of P. W.5 (Benson Olori) shows. The presence of the deceased’s blood on the leaves (exhibit D) and its grouping as “A” is clearly of no assistance to the prosecution’s case.

This is also true of the awolowo leaves which are said to abound in the OWA-OYIBU area.
Thus, while we agree that circumstantial evidence is admissible in criminal cases, such evidence in the words of LORD NORMAND in LEJZOR TEPER vs. THE QUEEN – (1952) A.C. 480 at p. 489
“Must be always 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.”

See also R. V. OROROSOKODE- (1960) 5 F.S.C. p. 208. As we were in no doubt that the decision of the learned trial judge in this case failed to satisfy the tests laid down in the TEPER case (supra) we had to allow the appeal, set aside the conviction of the appellant and substitute therefore a verdict of acquittal. The appellant, if still in custody is to be released forthwith.

Case No: SC.481/75