Oladapo V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
UWANI MUSA ABBA AJI, J.S.C.
This appeal is against the judgment of the Court of Appeal, Akure, dated 15 January 2014, affirming the trial Court’s judgment against the appellant. The appellant was tried and convicted by the trial Court for murder and sentenced to death by hanging.
The appellant was charged with the murder of a 21-year-old lady, Sikiratu Abaki, who died on 7 April 1998, at Ilobu village in Osogbo, Osun State. It is the record that on 6 April 1998, the mother of the deceased informed PW1 that she could not find the deceased. The following day, Fausatu and Ganiyu informed PW1 that they found the pant and brassier of the deceased. PW2 testified that the deceased was last seen with the appellant. After investigation, the decapitated body of the deceased was exhumed at the entrance of the house of the appellant while the head was found in his ceiling. At the trial, the respondent paraded 6 witnesses and tendered 43 exhibits, which swayed the trial Court to convict the appellant. His conviction was affirmed on appeal by the lower Court, hence this appeal.
In arguing the appeal, the appellant formulated an issue for the determination of the appeal:
“Whether the concurrent findings of fact or summation of evidence as made by the Court of Appeal were perverse and thereby occasioned a miscarriage of justice?”
It is submitted by the learned counsel to the appellant that this Court should form an independent opinion on the confessional statement of the appellant and the post mortem report and that the evidence of PW1-4 did not prove the ingredients of murder against the appellant. That since PW6 did not testify that he was tendering exhibits K1, K2, E and E1, it was wrong for both the trial and lower Courts to extract confessional statements from them. He sought support in Kasa v. State (1994) 5 NWLR (Pt. 344) at 286.
On exhibit D, the post mortem report, he submitted that since the pathologist was not present to be cross-examined, the report is tainted and spurious. He stressed that Section 55 (3) of the Evidence Act, mandates the pathologist to be summoned to testify. He relied on Amayo v. State (2002) FWLR (Pt. 91) at 1592; Ahmed v. State (2001) FWLR (Pt. 34) at 455.
The respondent’s learned counsel’s submission on the other hand is that by the standard of proof beyond reasonable doubt, the prosecution by the witnesses and exhibits presented proved by both voluntary confession and circumstantial evidence that the appellant murdered the deceased. In proving murder against the appellant, it is submitted that the evidence of PW4, PW5 and PW6, the confession of the appellant and the post mortem report, nailed the appellant. He referred to exhibit D as only confirming the confession of the appellant that he killed the deceased for money making ritual. Furthermore, he settled that there is no law that compels the medical doctor to testify in all murder cases where medical report is required. He citedJohn Mamudu Buba v. State (1992) 1 NWLR (Pt. 215) 1; Blessing v. F.R.N. (2015) All FWLR (Pt. 805) 1, (2015) 13 NWLR (Pt. 1475) at 38 and Section 55 (1)(2) & (3), Evidence Act.
On the circumstantial evidence, he stated that exhibits D and E are helpful to establish the murder. He cited in support Nwachukwu v. State (2007) 12 SCM (Pt. 2) at 469. That the confessions of the appellant contained in exhibits E1, E2, K1 and K2 are enough to ground the conviction of the appellant. He relied on Smart v. State (2016) 9 NWLR (Pt. 1518) at 481.
The appellant was charged with the murder of the deceased where circumstantial and confessional evidence was used to convict and sentence him to death. There is no doubt that the prosecution in a murder charge, owes it a duty to discharge by proving the death of the victim as the responsibility of an accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death.
In other words, it is trite law that in a charge of murder, the burden is on the prosecution to prove that the deceased died, that the death was caused by the accused, that the accused intended to either kill the victim or grievously harm him. See Per Ariwoola JSC in Oketaolegun v. State (2015) LPELR-24836 (SC).
To prove the facts narrated above, the prosecution called 6 witnesses and tendered 43 exhibits to establish murder against the appellant. Strong circumstantial evidence exists against the appellant. PW2 testified that the deceased was last seen with the appellant and also witnesses how the headless body of the deceased was exhumed at the entrance of the house of the appellant while the head was recovered from his ceiling. PW4 in collaboration narrated that when he visited the appellant sometime in April 1998, he met the deceased with the appellant after which the deceased was declared missing. He further gave evidence that the appellant himself told him that the deceased died while he tried to administer abortion on her but warned him not to tell anybody or he would implicate him in the murder of the deceased. During the investigation, the appellant showed the police where the deceased was buried and confessed how he killed and dismembered her body and hid the head. PW5, the IPO, further gave testimony that on 8 April 1998, the case of missing person was reported to him wherein it was discovered that it was the appellant that killed the deceased. In fact, he tendered exhibit A wherein the appellant confessed the murder of the deceased. By extension, the mother of the deceased in person of PW3 stated in her evidence that the deceased who was pregnant was missing on 3 April 1998, which impelled them to report the matter to the police. In her testimony, she explained that PW4 informed her that it was the appellant that killed the deceased and made confession to it. All these corroborate the fact that the deceased from 3 April to 8 April missed but was only last seen in the company of the appellant. As circumstantial as the doctrine of last seen may be, the straw that broke the camel’s back is that the deceased’s decapitated body was seen buried and exhumed in front of the appellant’s house and her head discovered in his ceiling. Furthermore, he confessed to the crime.
The next question to ask is “who was responsible in causing the death of the deceased?” There is no doubt that there was no eye witness account of anybody who witnessed the commission of the crime. However, the respondent led credible evidence to show that the deceased was the only person last seen with the appellant. The respondent at the trial therefore relied on circumstantial evidence especially the doctrine of last seen. This doctrine simply means that the law always presumes that the person last seen with the deceased is presumed to be responsible for his death, provided the circumstantial evidence is overwhelming and leads to no other person or persons but him. As it has been confirmed by the available evidence that the deceased was with the appellant up to the time of her death, then the doctrine of last seen obviously counts or applies against him. Moreso, there is a confessional statement voluntarily made by the appellant which supported the presumption of his guilt by the application of doctrine of last seen, as well as the evidence of PW2-PW5, all of which corroborated and supported his responsibility in causing the death of the deceased. See also Per Sanusi JSC in Kolade v. State (2017) LPELR-42362 (SC).
The appellant gave his own side of the testimony that he being an herbalist had to attend to the deceased brought to him by PW4 for treatment of stomach ache after an abortion. That when the deceased became weaker, he went to look for PW4 and after they arrived, the deceased died. That in fear, the matter was not reported to the police. Although he denied her murder, he gave evidence that the deceased died in his custody and he used cutlass to cut her body to pieces. The appellant’s confession indeed sealed his fate that he murdered her. It is settled law that an accused person can be convicted solely on his confessional statement. If a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. The reason is simply that the Court can and does convict an accused person solely on his confessional statement. See Per Abba-Aji JSC inTope v. State (2019) LPELR-47837 (SC).
On the inadmissibility or lack of weight of exhibit D, the post mortem report, since the pathologist was not present to be cross-examined, the law is long settled on this. PW6 tendered exhibit D, which was all the same admitted in evidence amidst objection that the maker be called.
It must be emphasized that medical evidence is not always a desideratum in murder cases except where necessary to prove death and cause of death. Furthermore, to call the maker of the report is a matter of choice given by the law. A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused. The fact that a medical report was not produced does not diminish that the fact that the deceased died. See Per Galumje JSC in Dajo v. State (2018) LPELR-45299 (SC).
Similarly, Section 55 of the Evidence Act 2011 deals with certificates of specified government officers. It provides in Section 55(1) and (2) as follows:-
55(1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government Pathologist or Entomologist or the Accountant General, or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Accountant – General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein. (2) Notwithstanding subsection (1) of the section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as a sufficient evidence of the facts stated in it. See Per Aka’ahs JSC in Abdullahi v. F.R.N (2016) LPELR-40101 (SC). To sum this point up, by the provisions of the Evidence Act, it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court in order to give evidence during the trial. Production by either party of a certificate signed by the medical officer may be taken as sufficient evidence of the facts. See Per Adekeye JSC, in Edoho v. State (2010) All FWLR (Pt. 530) 1262, (2010) 14 NWLR (Pt. 1214) 651, (2010) 6 SCM 52, (2010) 42 NSCQR (Pt. 1) 477, (2010) 4 SCNJ 100, (2010) LPELR-1015 (SC). In the present case, the death of the deceased has been fully connected to the appellant even in the absence of exhibit D. It is therefore not useful or weighty herein to be affect the case of the respondent.
The appellant has protested also that since PW6 did not testify that he was tendering exhibits K1, K2, E and E1, it was wrong for both the trial and lower Courts to extract confessional statements from them. It is always good for a party to present his case clearly to the understanding of the other party and not to spring surprise on the other. However, nothing forbids a Court from looking into its records to resolve an issue. See Per Okoro JSC, in Akeredolu v. Abraham & Ors (2018) LPELR-44067 (SC).
Although it not good to delve and descend into the arena of a case by a judge, the judge must dispassionately consider and determine every case by every fact available. Thus, a Court is entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Per Galumje JSC, in Eromosele v. FRN (2018) LPELR-43851 (SC). The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See Per Kekere-Ekun JSC, in PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563 (SC).
Finally, it is trite law that this Court would rarely interfere with concurrent findings of facts by the two Courts below except where such concurrent findings of facts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure. In such circumstances, this Court would not allow such perverse findings to stand. See Per Okoro JSC inJohn v. State (2019) LPELR-46936 (SC).
The appellant has not swayed nor persuaded me to see any injustice or perversity in the concurrent findings of facts leading to his conviction and sentence by the two Courts below. The judgment of the lower Court is affirmed. The appeal is therefore dismissed.
SC.188/2014
