Sabina Chikaodi Madu V. The State (2006)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The criminal appeal is against the conviction of the appellant delivered by T. U. Uzokwe, Judge on 1st June 2004 in charge No. HOS/4C/2003 at Osisioma High court of Abia state. Appellant was charged along with one person called Chinonye Amuzie who latter died in prison before the filing of this appeal. The charge was for the murder of a pregnant girl called Nnenna Nwosu.
The prosecution called five witnesses, while the appellant in her defence, testified, but called no other defence witness. The co-accused also testified in his own defence, and could not call any other defence witness.
The appellant along with the co-accused were found guilty as charged, then convicted and sentenced to death by hanging. It is against that conviction that the survived appellant has appealed to this Court.
The brief material fact before the commencement of the prosecution is that the appellant and 2nd accused, lived at No.17 Power Line Abayi Ariaria, Aba, Abia State. The deceased also lived with her father (PW1) at No. 16 Power Line Abayi, Ariaria, Aba Town. The two house are thus located opposite each.
The appellant and deceased’s family were rather intimate to the extent that PW1 and his daughter – the deceased, used to give their house key to the appellant whenever they lock their door or were going out; and on 27- 08-02, pw1 travelled to their village near Owerri and directed the appellant to look after the deceased who by then she was 18 year old. When Pw1 returned from his journey at about 8.00 pm on 30-08-02, he found his house door locked and as usual, he went to appellant’s house to collect the key and also to know if deceased was with appellant.
But the appellant replied, “that she was with her some moments ago but did not know where she went.” This is clear on page 42 lines 18 – 19 of the record of appeal.
At that stage, PW1 asked for the key from the appellant, but after a purported search, appellant said she could not locate the key. The PW1 then left to look for the deceased daughter and when he could not find her, he came back to the appellant again and asked where she had said that his daughter (deceased) went to, but the appellant pleaded with PW1 not to be annoyed, and that the daughter had “told her that she was going to see her brother at Faulks Road.” See page 42 lines 27 -28 of the record. On hearing that, PW1 went to Faulks Road but was told that his deceased daughter did not come to the place; and by the time he came back to his house in search of his daughter it was 12.00 mid-night on that fateful 30-08-02. He knocked at the gate of a neighbour and with his assistance; PW1’s house was forced open.
The following day being 31-08-02, PW1 came out at about 5.00am and he met the appellant sweeping the frontage of her compound where she used to fry akara (cake beans), PW1 then asked the appellant for the 3rd occasion demanding to know the where about of his daughter, and the appellant pleaded PW1 not to be offended and replied: “That she has now remembered that Nnenna (deceased) told her that she will follow me to the village (Owerri) to find out why I had not yet returned.” See page 43 lines 9 – 12 of the record. Based on the appellant’s statement, PW1 immediately travelled to the village that morning on 31-08-02 but he could not see his daughter but later, he met his son at Owerri who told him that the daughter – Nnenna was dead and that her corpse was found in the sock-away behind the appellant compound. PW1 then returned to Aba town, and was taken to hospital mortuary by the IPO (PW3), where PW1 then observed and identified the corpse of the deceased. Post mortem was conducted by PW4 – Dr. Nicholas Etebu whose evidence was testified when prosecution was in progress. As earlier stated, the appellant and one Chinonye Amuzie were charged with the murder of Nnenna Nwosu. The prosecution witness who testified at the trial are:
“1. PW1 – Mr. Simon Nwosu, he was the father of the deceased.
- PW2 – Mr. John okoro who was the caretaker at the premises where the corpse of the deceased was found in the sock-away.
- PW3 – cypril Nwosu, the investigation Police officer (IPO).
- PW4 – Dr. Nicholas Etebu who performed the post-mortem examination of the body of the deceased.
- PW5 – Mr. Christopher Nwagwunwanne – who also took Part in the investigation of the case.
After the prosecution had closed its case and the appellant and co-accused (now dead) also testified in their respective defence and called no other defence witness, the trial court ordered for and received written submissions of both counsel. The learned trial Judge painstakingly, considered both sides submissions and found the appellant and co-accused guilty as charged and accordingly convicted and sentenced them to death by hanging.
It is against that conviction that the appellant has appealed to this Court by filing notice of appeal at the lower court on 20-08-2004. The 3 grounds of appeal without reference to the particulars are as follows:
“GROUND ONE: ERROR IN LAW:
The learned trial Judge erred in law when he held that:
(I am satisfied that the totality of the evidence adduced points irresistibly to the accused Persons as the perpetrators of this dastardly act meted out to the deceased on 30-08-02 which led to her death. The totality of the evidence against them raised a case much higher than suspicion; it sufficiently proved the case against them beyond reasonable doubt.
I therefore find the accused persons guilty as charged and I convict them accordingly.”
GROUND TWO: ERROR IN LAW:
The learned trial Judge erred in law when he held that the evidence against the appellant is satisfactorily circumstantial evidence to support conviction.
GROUND THREE:
The judgment is not supported by the evidence on record in the trial”
Based on the 3 grounds of appeal learned counsel for the appellant –
D. C. Denwigwe distilled and formulated a single issue that read thus:
“Whether the prosecution proved the guilt of the appellant by standard acceptable in law and if not, then whether the conviction of the appellant can stand?”
On the Part of the respondent, learned Attorney-General and Commissioner for Justice Solo Akuma while hearing the appeal adopted and relied on respondent’s brief filed on 06/2/2005 in which more or less identified single issue was formulated and it reads thus:
“Whether the Prosecution proved the guilt of the appellant by standard acceptable in law”
The appellant’s argument in relation to the sole issue is that, the trial Judge, wrongly considered the circumstantial evidence on which the prosecution relied and based the conviction of the appellant. Appellant’s counsel referred to the trial court’s findings at page 101 where his Lordship stated thus: “I believe the evidence of PW4 as to the cause of death and that the injuries to the womb and vagina and neck could not have been self inflicted.” Counsel further referred to pages 103 – 105 where the trial Judge listed out the circumstances he had considered as the material circumstantial evidence relied by the prosecution based on which the trial Judge, found the appellant guilty and convicted. Appellant’s counsel then submitted at paragraph 4.7 of the brief that learned trial Judge did not draw the correct legal conclusions from the evidence on record when at page 107 paragraph 3 of the record of appeal, his Lordship had found –
“I find as a fact from the evidence of PW4 that death had occurred before she was thrown into the septic tank.” Appellant’s counsel, referred to the evidence of PW4 at page 50 of the record where the medical doctor, performed the post mortem examination of the corpse of the deceased and his findings. It reads thus:
“PW4 – I received the body of a young adult negroed female. The external finding, were that of generalized pallor which is a medical palance for lack of blood. The neck was rotating which means that there was a fracture of the neck bone. Internally there was lacerations and perforations in a womb that was Pregnant. There was also protrusion of the internal organs from the vaginal opening. I therefore concluded that the cause of death in my opinion to be lacerations and perforations of the womb and protrusion of the internal organs from the vagina. It is my opinion that the lacerations and protrusions in the womb were not self-inflicted but by some other person. The lacerations could have been caused by a sharp object from a long or short sharp object. The rotating neck could have been caused by either some one forcefully breaking the neck or by a fall.”
Learned counsel also referred to page 50 of the same record where PW4 was cross examined and he said thus: “the perforations in the womb could possibly be caused by abortion by a quack doctor” Counsel then added that it cannot by any stretch of accurate inference be deduced from the evidence of PW4 that deceased was already dead before the corpse was found in the septic tank, and that therefore the trial Judge’s reliance on the evidence of PW5 is erroneous; that the evidence of PW4 did lot disclose the cause of lack of or place when lacerations and perforations in the womb of the deceased occurred; and that PW4 witness did not disclose whether the protrusion of the internal organs from the vaginal opening of the deceased occurred before or after her death or at what time or place the acts occurred, that the doctor did not explain the circumstances in the neck fracture of the deceased; that there was no evidence that the present appellant was a quack doctor or that she performed or procured the performance of abortion of the deceased, that no instrument or abortion was ever recovered from the appellant. Learned counsel then submitted that those possible explanations of the circumstances should have helped the trial Judge by clear evidence on record, but there is none.
Counsel then accused the trial Judge of denying the appellant the benefit of the lack of evidence and thus occasioned a miscarriage. Counsel referred to and relied on AGWU v THE STATE (1965) NMLR.
Appellant’s counsel further contended that the conclusions of the trial Judge that the innocent girl was already dead before her corpse was thrown into the septic tank by the appellant and her co-accused threw the body into the septic tank are unfair and wrong inferences, which could not be traced by evidence on record; and that therefore, the trial judge was perverse. That having made the perverse finding, the judge went further and invented speculative conclusions that the septic tank did not collapse, and that the deceased was thrown into same through the small opening, and that the trial judge did not mention the dimension of the opening which he described as small. That the trial judge wrongly relied on a photograph of the septic tank when the appellant was not even present when the septic tank was covered by a zinc and a block. Learned counsel for the appellant still attacked the findings of the trial judge who found the appellant lying in her evidence in her defence. Counsel then submitted that lies by an accused person during proceedings does not detract from the burden of the prosecution to prove the guilt of the appellant beyond reasonable doubt. Counsel relied on PHILIP OMOGODO V. THE STATE (1981) 5 SC. 5, 26 – 27; IJEOMA V. THE STATE (1990) 6 NWLR (PT.158) 567 AND AGUNBIADE V. THE STATE (1997) 4 NWLR (PT.599) 391.
Learned counsel for the appellant per paragraphs 4.27.1 to 4.27.8 contended that the required proof of a charge of murder against the appellant was not complied or found on evidence. Appellant contends that to prove a charge of murder against the appellant, the prosecution must go far beyond proving the cause of death, and that the act or omission of the appellant which caused the death of the deceased must be proved against her, and referred to the cases of THE STATE v. OGBUBUNJO (2001) 1 SC (Pt.1) 90; OTEKI v ATTORNEY-GENERAL BENDEL STATE (1986) 2 NWLR (Pt.24) 648 and ONAH v THE STATE (1985) 3 NWLR (Pt. 12) 236. Appellant submits that the prosecution must prove (a) that the appellant played a positive role in procuring the abortion of the deceased from which the womb was perforated and had lacerations as well as the protrusion of her internal organs from her vaginal opening and (b) that appellant also played a role in causing fracture of the neck bone of the deceased. Counsel then contended that the trial Judge did not make findings (a) and (b) argued above, and that therefore it was wrong for the trial Judge to hold that the appellant’s conduct was more consistent with her guilt than her innocence. That it was wrong for the trial judge to accuse the appellant on the ground that there were damning circumstances which were established and constituted prima facie case on which appellant was convicted. Learned counsel for the appellant urged this Court to hold that there was no evidence on record to accept that the appellant in fact perforated or committed any acts or omissions which caused the death of the deceased girl. Counsel relied on OMOGODO v THE STATE (supra) where the words “mendacity”, “stupidity” and “fear” as reasons why an accused person could lie as done by the appellant in the appeal at hand, and that the burden is always on the prosecution to prove its case against the appellant.
In conclusion, appellant counsel submitted that in law, circumstantial evidence which will lawfully warrant a conviction must possess the attributes of mathematical accuracy and consistency with guilt, and should not be based on speculation or lack of record and referred to cases of ODUNEYE v THE STATE (2001) SC (Pt.1) 1, 7 and 12; OKPULOR v THE STATE (1990) 1 NWLR (Pt.164) 581; OMOGODO v THE STATE (supra) THE STATE v OGBUBUNJO (supra); NNAMAH v THE STATE (2005) 9 NWLR (Pt.92) 147, 159, C-F and 16 E-F and ONAH v THE STATE (supra); that the standard required in law and that therefore the conviction is a case of failure of justice and urged this Court to hold that charge of murder was not proved against the appellant and the conviction should not stand. So urged appellant’s counsel in their brief of argument.
On the part of the respondent, the Hon. Attorney-General of Aba State argued and referred to the evidence of PW1 -the father of the deceased whose evidence incriminated the appellant, yet, learned counsel for the appellant did not challenge. That the evidence of PW2 who was the care taker of the compound in which deceased corpse was put into septic tank also incriminated the appellant in the offence charged, but that still, defence counsel did not challenge the evidence of PW2. Learned Attorney-General referred to the evidence of PW3 and PW5 who testified concerning the investigation activities of the appellant whose statement to the Police was tendered. Respondent’s counsel contends that despite the incriminating evidence made by the prosecution witnesses against the appellant she made only a blank denial of the allegations and that the appellant’s testimony in trial court contradicted some material aspects of his statements to the Police. In paragraph 2.17 of respondent’s brief, learned counsel contends that the cause of death was proved by the evidence of PW4 who is a medical doctor who performed the post mortem on the deceased and that his evidence consolidated the circumstantial evidence against the appellant for the murder of the innocent girl, that the doctor’s evidence revealed that the deceased died from abortion, which the very appellant had earlier supplied in her utterances before the commencement of Police investigation as shown by the clear evidence of PW2 at page 45 of the record of appeal; and that the learned trial Judge had skillfully, put together the circumstantial evidence and came to the conclusion that the appellant is guilty of the offence of murder. Learned Attorney-General referred to pages 103 to 105 of the record in which learned trial Judge listed 12 pieces of circumstantial evidences on which appellant was found guilty. Respondent’s counsel contends that the strongest source of circumstantial evidence against the appellant is her conduct after deceased was last seen with her. The testimony of the appellant in her defence as shown on page 55 lines 15 – 25 of the record is relied upon by the respondent that the deceased was last seen with the appellant is well established. Learned Attorney-General then submitted that the conduct of the appellant especially, her three equivocating replies made to PW1 (who is the father of the deceased) in finding the where about of the deceased, left no room for any doubt that the appellant was aware that she was responsible for the death of the deceased by abortion. Learned counsel for the respondent further contends that the appellant as from 30-8-2002 to 1-9-2002, gave PW1, three different accounts of the where about of Nnenna the deceased, and that non of the three different accounts was correct, and that these false statements made by the appellant to PW1, coupled with other contradictory statement were all considered by the trial court which made a complete unbroken chain of evidence in criminating the appellant. Learned Attorney-General submits that the handling of the circumstantial evidence by the trial Judge confirms the legal principle in the case of OGIDI v THE STATE (2003) 20 WRN 61 at 80 which is very clear on nature of circumstantial evidence. In relation to incriminating appellant by the evidence of PW1, respondent’s counsel submits that there was no challenge whatsoever by the defence counsel and that where a defence has failed to cross-examine important issues which incriminate the accused, the trial Judge has the legal right to accept the evidence of prosecuting witness as done in the instant appeal. Counsel referred to and relied on the case of OFORLETE v THE STATE (2000) 7 WRN 80, 110. Learned Attorney-General also referred to AKPABIO v THE STATE (1994) 7 – 8 SCNJ 429, 459 which state that where appellant’s oral evidence is contradictory to his statement to the Police, both are regarded as unrealisable.
Learned counsel for the respondent still maintains that the evidence of PW2 as found at page 45 lines 9 -28 of the record was not challenged by the appellant’s defence counsel when PW2 was cross-examined. Still further, learned counsel referred to the defence evidence of co-accused of the applicant, which made the appellant as a liar, who had stated in her defence that she did not know the relationship between the co-accused and the deceased person. Counsel then contends that the trial court made a correct finding of fact to the effect that the septic tank never collapsed as lied by the defence counsel.
In conclusion, learned Attorney-General for the respondent summarized his arguments at page 22 of the brief which is to the effect that the trial court relied on circumstantial evidence which connected the appellant to the guilt of the charge of murder; that the evidence of PW1, PW2 and PW4 created the necessary inference which were not challenged by the appellant when the witnesses were under cross-examination; that the evidence of appellant were contradictory to her statement to the Police which was admitted as Exhibit A and therefore made testimony of appellant unreliable; that the problem of appellant at the trial court, was not just lies, and moreover appellant was involved in criminal falsehood which was planned to cover up her involvement in the abortion. Counsel urged the appellate court to dismiss the appeal and affirm the conviction of the appellant by the trial court.
I have carefully read and considered the argument of both counsel in their respective briefs. This is a murder case in which there is no evidence on record as to eyewitness of the murder. The case was a trial on circumstantial evidence as there was no direct eyewitness who saw the act of abortion, which caused the death of Nnenna Okoro a young girl of 18 years on 30-8-2002.
For the prosecution to prove a charge of murder three ingredients must be established and they are:
“a) that the deceased had died;
b) that the death of the deceased was caused by the accused person(s);
c) and that the act or omission of the accused person(s) which caused the death of the deceased was intentional (mens rea) with the knowledge that death or grievous harm was its probable consequence.”
See cases of UBANI v THE STATE (2003) 4 NWLR (pt.811) 595; OGBA v THE STATE (1992) 2 NWLR (Pt.222) 164; NWAEZE v THE STATE (1996) 2 NWLR (Pt. 428) 1
To ground a conviction on circumstantial evidence, it must lead only to one conclusion, and that is the guilt of the accused, and in the instant appeal, the guilt of the appellant has to be considered, because where there are other possibilities in the abortion fact other than it was the appellant who committed the act, and that other than the appellant and her co-accused, other persons had the opportunity of committing the abortion with which they were charged, the appellant cannot be convicted of the offence of abortion charged. See ESAI v THE STATE (1976) 11 SC 39.
In the instant appeal, there is a reliable record of the trial court where the prosecution called a total of five witnesses who testified and incriminated the appellant. The prosecution was aware that the burden of proof in the abortion murder was on its shoulder. Whether the evidence of the five prosecution witness is direct or circumstantial, there was need to establish the guilt of the appellant beyond reasonable doubt. The onus has always been on the prosecution and as a general rule; it never shifts to an accused person to prove his innocence. See ARUNA v THE STATE (1990) 6 NWLR (pt.155) 125; OZAKI v. THE STATE (1990) 1 NWLR (pt.124) 92.
To prove the death of the deceased in the instant appeal, the respondent called PW4, a medical doctor who performed the post mortem examination and tendered Exhibit C. The material evidence of PW4 is at page 50 of the record and it reads as follows:
“I received the body of a young adult negroed female. The external findings were that of generalized pallor which is a medical parlance for lack of blood. The neck was rotating which means that there was facture of the neck bone. Internally there were lacerations and performance in a womb that was pregnant. There was also protrusion of the internal organs from the vagina opening. I therefore concluded that the cause of death in my opinion to be lacerations and perforations of the womb and protrusion of the internal organs from vagina. It is my opinion that the lacerations and perforations in the womb were not self-inflicted but by some other person. The lacerations could have been cause by a sharp object application from a long or short sharp object. The rotating neck could have been caused by either some one forcefully breaking the neck or by a fall.”
It is to be noted that PW4 is not just a pathologist who performed the post mortem, but also he is specialized in forensic and hysto-pathology. See pages 49 – 50 of the record. Forensic science is a special detective investigation in crime. It is therefore instructive that the learned trial judge at page 107 of the record said as follows:
“I find as a fact from the evidence of PW4 that death had occurred before she was thrown into the septic tank.”
Also at page 101 of the record, his Lordship accepted and believed the evidence of PW4 as to the cause of the death of the deceased. It reads thus:
“I believe the evidence of PW4 as to the cause of death and that the injuries to the womb and vagina and neck could not have been self-inflicted.”
At the stage learned judge was yet to ascertain the pertinent findings as to the culprit who murdered the deceased. His Lordship raised this and said:
“Who committed the offence or caused the death of the deceased?”
See page 101 of the record. In determining who committed the murder, learned trial Judge painstakingly considered the evidence of the five prosecution witnesses as well as the evidence of co-accused. His Lordship also considered the written addresses of both counsel which were dully exchanged and served. The trial court accepted the prosecution’s submission that the proof of evidence was purely on circumstantial. His Lordship had to caution himself that courts must be very cautious before basing its conviction on circumstantial evidence. See page 103 of the record.
The circumstantial evidence proffered by the respondent through prosecution witnesses which was accepted by the learned trial Judge is clear at page 103 – 105 of the record it reads as follows:
“Those facts are:
(i) The 1st accused, though much older than the deceased, was a close friend of the deceased according to the prosecution witnesses and the accused persons. The 1st accused admitted that the deceased used to take care of her baby; she was the only friend the deceased used to go to. (See page 103 to 104). The deceased kept her house keys with her. The trial court further believed and accepted that the 1st accused and the wife of the PW1’s were friends right from the time they moved into their present residence opposite the accused person’s house. Before his wife left for the village in 1998 she asked 1st accused to be taking care of their 17 year old in her house.
(ii) The 2nd accused admitted that he was the deceased’s boy friend and had sex regularly with her. That it was 1st accused who earlier told him that the deceased was his sister that introduced the deceased to him.
(iii) The deceased was last seen alive on 30-8-02 with the accused persons (according to their own admission). 1st accused said that the deceased followed her halfway to the market while the 2nd accused said she came to him to ask for money.
(iv) PW2 saw the accused persons patrolling the backyard of the premises, but ignored them because he thought they were going to have sex.
(v) The body of the deceased according to the admission of the accused persons was later seen in the septic tank in their backyard and not that of the deceased.
(vi) The two accused persons up till 1-9-02 were the only persons that knew the body was in the septic tank i.e. two whole days before the 2nd accused decided to let the cat out of the bag by telling PW2 (the caretaker) because according to him the deceased appeared to him in a dream and demanded to know why he left her body in the septic tank. 2nd accused said in his statement of 13-9-02, Exhibit ‘E’ that he didn’t tell earlier because the 1st accused warned him that if he did so she will say that he was responsible because the deceased died as a result of abortion.
(vii) Both accused admitted that it was 1st accused that led 2nd accused to the septic tank.
(viii) When PW1 returned from the village and asked 1st accused where the deceased was, 1st accused gave him different account as to where the deceased told her she was going to.
(ix) The autopsy report Exhibit ‘C’ showed a gravid (pregnant) womb that was empty with ragged perforations/lacerations at two points.
(x) PW4 stated the cause of death to be the combined effect of perforations/lacerations of the womb with external protrusions of the internal organs and facture of the spine of the neck.
(xi) The accused persons lied and contradicted their statement.
(xii) The conduct of the accused persons after deceased was last seen with them were more consistent with their guilt than their innocence.”
Now, the above twelve (12) specie of evidence listed by the learned trial Judge, are the relevant inference that it was the appellant who killed or participated in the abortion of the deceased. The conduct of the appellant, especially her three equivocating replies to PW1 who was disturbed about the where about of her deceased daughter, left no room for any doubt that the appellant to whose care the deceased was left was responsible for the fatal abortion established by the medical doctor PW4.
I accept the contention of the respondent that, as from 30-8-2002 to 1-9-2002, the appellant gave PW1 three different accounts of the where about of the deceased, and none of them was correct because it was intended to mislead PW1. All the false pre-trial equivocations as testified by PW1, were accepted by the trial court to make a complete unbroken chain of evidence implicating the appellant. It is very worthy to note that, as far back before proceeding could commence, it was the same appellant who brought the issue of abortion on the death of the deceased. It was the appellant who “discovered” the body of the deceased in a septic tank in the back yard of the appellant; the same appellant “invited” the co-accused to the septic tank and latter, threatened the co-accused that if he informed any other person on the body of the deceased which they pushed into the septic tank, she would tell the Police when they came that it was the co-accused who committed the abortion on the deceased and the death occurred. These facts are contained in the evidence of PW2 who stated how he clearly heard the appellant made a threat to co-accused.
The same co-accused made a clear statement to that effect in his statement to the Police, which was admitted into evidence; and he testified to that effect in his defence before the court. See pages 88 – 90(a) and 45 as well as pages 58 to 59 of the record. It is however, very surprising that, the damning statement made by PW2 – Anthony Okoro and co-accused Chinonye Amuzie on the cover up attempts by the appellant, were not challenged by counsel during the normal cross-examination. All these implicating statements were testified and tendered in the presence of the appellants and her counsel, but there was no challenge whatsoever. More over, the weak cross-examination of PW2 at page 47 of the record, strengthened respondent’s prove that the appellant used the deceased to commit fornication. It reads “… All I know is that he handed over the deceased to the 1st accused (appellant) who used her for fornication…”
Failure of the appellant to challenge the evidence of PW1, PW2, PW4, PW5 and DW2, which established the cause of death and the role played by the appellant and deliberate attempt to cover the death and forceful pushing of the corpse into the septic tank, are so overwhelming against the appellant. Her subsequent denials of these facts in her feeble defence, which were lawfully rejected by the learned trial Judge, are of no moment as stated in the case of OGIDI v THE STATE (supra) at page 25 where this court stated:
“In a criminal trial, an issue may be proved either by direct evidence or circumstantial evidence and it is not derogatory to say that evidence is circumstantial. Circumstantial evidence is as good and some times better than any other evidence. What is meant by circumstantial evidence is that there is a number of circumstances which are accepted to make a complete unbroken chain of evidence.
Also, witness may lie but circumstances do not lie.”
In the same OGIDI v THE STATE (supra), learned brother, Ikongbeh, JCA (of blessed memory) succinctly stated thus at page 40 as follows:
“…A piece of circumstantial evidence, which standing on its own, may not suffice for conviction could, in conjunction with other pieces of evidence, acquire such potent relevance against the possessor as would lead to his conviction. In other words, there could be other circumstances strong enough to justify holding with some degree of certainty that the accused person committed the offence for which he was charged. In the instant case, there were other circumstances strong enough to justify with a high degree of certainty the trial court’s findings that the 1st appellant took part … for which he was charged.”
In the instant appeal, the appellant on whom PW1 had reposed his confidence and left his daughter to look after, has now shown that she gave the deceased to co-accused for sex. She also lied, not based on fear, or mediocrity, or stupidity as argued by learned counsel for the appellant. It was her deliberate lies and cover up. Coupled with her behaviour of criminal character as shown on record that made the trial judge to state in her judgment at page 108 of the record as follows:
“… 1st accused was callous enough to go back to frying her Akara balls, while the body of her friend and a girl entrusted to her care was rotting inside the septic tank. She equally got up next morning and went about her normal business of frying akara while the body of her late friend was still inside the septic tank and in the same premises where she was frying her akara. She was callous enough to send PW1 on a wild goose chase, first to his son at Faulks Road to look for his daughter, when she (appellant) knew all the time that she was dead.”
The above findings and reasoning of the trial Judge cannot be faulted.
The frivolous accusations raised and argued by the appellant counsel are unfounded. The complaint at page 6 paragraphs 4.10 to 4.18 of appellant’s brief is of no significance to the trial court’s judgment in which appellant was found guilty and convicted. The issues of stating that there is no accurate inference from the evidence of PW4, that deceased was already dead before her body found its way into the septic tank, is not proper. It is clearly stated in the evidence of PW4, a qualified forensic expert and an imminent medical practitioner, lecturing at two various teaching hospitals that the corpse was brought to him when it was already in its decomposing situation. But despite this, he dissected and examined the corpse which he found as a fact, the lacerations and perforation in the womb that was pregnant, and that there was also protrusion of the internal organs from vaginal opening; and the lacerations could have been caused by a sharp object from a short or long sharp object and that the rotating neck were caused by either some one forcefully breaking the neck. A proper consideration of the facts of the corpse, the only logical and irresistible conclusion is that, the deceased could not by herself cause the lacerations and perforations in her own womb and then apply sharp objects into her vagina and her other internal organs. It is even unimaginable to say that the deceased rotated her own neck and broke the bones.
PW4 had clearly stated and disclosed the protrusion of the internal organs from the vaginal opening of the deceased, which occurred before or after her death. Such baseless accusation made by the appellant against the evidence of PW4 on which the learned trial Judge accepted and relied upon is most unfair and to say the least, is unethical for a counsel in the temple of justice.
It appears learned counsel read Exhibit “C” upside down. The contents of Exhibit C and the evidence of PW4 on oath, speak for themselves.
In conclusion, I am satisfied that the observations and findings of the trial Judge, who had the opportunity of seeing and observed the witnesses as well as the appellant in their demeanour and conduct, cannot be faulted. There is no perverse in the judgment.
The appellant had the right to appeal against her conviction being a constitutional right, but if there is any appeal that is incompetent and unmeritorious this is one, and I dismiss it.
I so declare.
Other Citations: (2006)LCN/2104(CA)
