The State V. Raphael Ifiok Sunday (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Calabar Division delivered on 17th January, 2013 wherein the lower Court set aside the conviction and sentence to death of the appellant by the Trial High Court of Akwa Ibom State. The appellant was convicted for the murder of his father, Norbert Sunday on or about the 2nd day of April, 1996 at No. 81A Ikpa Road Uyo, Akwa Ibom State. The facts of the case may be summarized as follows: –

The Respondent herein, Raphael Ifiok Sunday was charged at the High Court of Akwa Ibom State with one count of murder of his father, one Norbert Sunday, contrary to Section 319(1) of the Criminal Code.

The particulars of offence charged read as follows:-

“Raphael Ifiok Sunday on or about the 2nd April, 1996 at No. 81A Ikpa Road, Uyo Judicial Division murdered Norbert Sunday.”

The complainant, Etim Udah, Deputy Family Head of Nnung Ibanga Ekpa of Afaha Oku Village, Uyo, made two statements to the police on the 7th April, 1996 and on the 12th April, 1996, which are contained at pages 9, 10 and 11 of the record.

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On the 2nd December, 2004, he testified in Court as the first Prosecution witness (PW1) and his evidence is contained on pages 30 to 32 of the record.

Other prosecution witnesses were Edem Udofia Ibanga (PW2), Family Head of Nnung Ibanga, Sergeant Asuquo Essien (PW3) and Edet Effiong Udo (PW4) whose statements to the police and evidence at the trial are all contained at pages 12 through to 14 of the record.

The facts upon which the charge was brought was that on the 6th April, 1996 the Respondent went to the house of PW1 and reported that he had not seen his father for 5 days. Upon inquiry by PW1, the Respondent told him that his father was not sick and that he had not reported the fact of his being missing to his family members. PW1 advised the Respondent to inform his family members and together they went to their family head who convened a family meeting where the matter was discussed. The family head gave the Respondent three days to search for his father and report back to them. On the 3rd day when the Respondent reported that he still could not find his father, the matter was referred by the family to the village head, Obong Akpan Essien Ekpe.

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When questioned by the village head as to the whereabouts of his father, the Respondent said that he suspected that his father was in a pit toilet owned by one Akon Ibanga, the deceased’s brother’s wife. The matter was reported to the police. The Respondent then led the police to the pit toilet where the corpse of his father was found. The police visited the house of the deceased and found his room filled with faeces. A blood soaked shirt belonging to the deceased was recovered.

On Wednesday 3rd April, 1996, Edem Udofia Ibanga, the family head of Nnung Ibanga (PW2), went to visit the deceased in his house. He knocked on the doors to the deceaseds room and that of the Respondent. There was no response from the deceased’s room. The Respondent later showed up and was asked by PW2 of his fathers whereabouts. The Respondent shouted at PW2 and pushed him out of the compound. PW2 testified to the fact that the Respondent had in the past told him that he would kill his father alleging that his father was a wizard. He stated that the Respondent in the past subjected his father to beatings and stabbings and that although the matter was reported to

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the police, the deceased never pressed for the prosecution of the Respondent for fear of reprisals. When the matter was reported to the family, the respondent was asked to look for his father and report back to the family the following day. In his several meetings with members of his family, the respondent never suggested that the corpse of his father could be found in the pit toilet belonging to the deceased’s brother’s wife. Rather, the respondents statement to the family was that someone told him that the deceased was seen along Etuk Street, Uyo, while another person claimed to have sighted him along Calabar Itu Highway. It was several days later when the matter was reported to the village head that the respondent suggested that the pit toilet owned by Akon Ibanga be explored.

When Sergeant Asuquo Essien PW3, visited the scene of the incident in the house of the deceased located at No. 81A Ikpa Road, Uyo, he recovered a handwritten note left by the deceased, which stated that if he died, it was the accused who killed him. He found that the room was filled with faeces. He discovered that the pit latrine was partly broken.

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The pit latrine was further broken on the 20th April, 1996, to remove the corpse of the deceased. After the corpse was exhumed, a post mortem examination was conducted by the doctor and a report was subsequently issued. PW3 found out that there were cases reported at “A” Division of the Nigerian Police, Uyo by the deceased against respondent and that he saw the crime dairy in which the deceased reported a case of assault occasioning harm against the respondent. The facts highlighted at the end of investigation by PW3 are contained on pages 39 and 40 of the record. At the end of his investigation, PW3 wrote a report dated the 15th April, 1996 which was tendered, admitted and marked Exhibit J . Based on those findings, the respondent was arraigned and charged with the murder of the deceased.

Edet Effiong Udo, PW4, was engaged by Akon Hanson lbanga a.k.a. Mmaette to repair her damaged pit latrine on the 6th April, 1996. The day after completion of the repairs, the respondent approached him and asked whether he had seen his father, Sunday Udofia. PW4 replied that he has not seen the respondent’s father. He asked PW4 what he saw when he repaired the toilet.

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PW4 replied that he saw nothing except faeces. The respondent told PW4 that he suspected that his father was in the toilet. PW4 said to the respondent that if he knew of such incident he would not have gone there. The testimony of PW4 is contained on pages 45 – 47 of the record and his statement to the police is marked Exhibit “K”.

In his defence, the Respondent denied knowing anything about his father’s death. Both in his statement to the police and evidence in Court, the respondent emphatically said that his late father was a drunkard and also very sick to the extent that he could not leave the room but was passing faeces in the room. The Respondent was responsible for packing the faeces until the late father decided to be managing to get to the pit toilet. Respondent says it was the family which accused the deceased of being a wizard when his junior brother died. That he only suggested his father may have fallen into the pit toilet because of the stench oozing from the said toilet. In all his statements he denied knowledge of how his father died.

Upon the conclusion of trial, judgment was delivered on the 19th day of November, 2007 and the learned trial Judge

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found the Respondent guilty of the offence of murder and accordingly, convicted and sentenced him to death by hanging.

Being aggrieved with his conviction and sentence, the Respondent appealed to the Court of Appeal, Calabar by a notice of appeal dated the 26th of November, 2007. The Court of Appeal in its judgment delivered on 17th January, 2013, allowed the appeal, acquitted and discharged the Respondent of the offence of murder.

The Appellant, being dissatisfied with the stance of the lower Court has appealed to this Court vide Notice of Appeal filed on the 28th day of January, 2013. Appellant, through his counsel Essien E. Udom Esq., distilled three issues for the determination of this appeal. The issues are: –

1. Whether or not the lower Court was right when it held that the doctrine of last seen was wrongly applied by the trial Court in coming to the conclusion that the Respondent was the last person who saw the deceased alive and therefore responsible for his death.
2. Whether or not the lower Court was right when it held that dispensing with medical evidence and report as to cause of death was fatal to the Appellant’s case.

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Whether or not the lower Court was right when it held that there is no circumstantial evidence that has led irresistibly to the guilt of the Respondent.In the brief of argument settled by Lawrence S. Oko-Jaja, Esq of counsel for the Respondent, filed on 27th February, 2017, three identical issues with that of the appellant are distilled but couched differently. I shall reproduce them hereunder as follows: –

1. Whether the Court below was right when it held that per Joseph Tine Tur JCA at page 165 – 166 of the record that: “I am of the candid opinion that the doctrine of “LAST SEEN” was wrongly applied by the learned trial judge in this given circumstances.”
2. Whether the Court below was right in stating that the trial Court was wrong in dispensing with medical evidence when there was no direct evidence linking the respondent with the death of the deceased.
3. Whether in the circumstances of this case, there was sufficient circumstantial evidence irresistibly pointing to the guilt of the accused and none other as to warrant the Court below to affirm the findings of the trial Court on this issue.

I shall determine this appeal based on the three issues formulated by the two parties.

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ISSUE ONE

After a review of the prosecution’s evidence at the trial Court and the findings of the learned trial Judge, the learned counsel for the appellant submitted that the learned trial Judge carefully considered the overwhelming evidence of the prosecution witnesses before the Court and rightly came to the conclusion that the Respondent was the last person who saw the deceased. That this was not a case where the evidence of an eye witness who saw the Respondent with the deceased was needed to secure conviction. He contended that in the circumstance of this case, it is established in evidence that the respondent lived with his father, the deceased and was responsible to attend to the daily evacuation of human wastes from the deceased room. That the respondent did not find his father on the 2nd April, 1996 and did nothing about it, that when on the 3rd April, 1996, the PW2 went to the 81A lkpa Road, Uyo where the deceased lived with the Respondent to inquire about the deceased, the respondent chased him away and was mute about the father’s whereabout, that when pressurized by the family and the

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village head, the Respondent revealed where the corpse of the father could be found and led the IPO (PW3) and other members of the family to the damaged latrine where the body of the deceased was found.

Learned counsel further submitted that the blood stained shirt of the deceased recovered from his room shows that the deceased still had his shirt on when he arrived his room on 2nd April, 1996. That the Respondent was the only one who had access to the deceased’s room between the 2nd April, 1996 and 10th April, 1996 when the 1PO entered to investigate the circumstances of the deceased’s death. Learned counsel relied on the following cases Igabele v The State (2006) 139 1 RCN, 1931, Gabriel v State (1989) 12 SCNJ 33 and Igho v The State (1978) 3 SC 87. He urged the Court to resolve this issue in favour of the Appellant.

In response, the learned counsel for the Respondent submitted that the Court below was right in coming to the conclusion that the learned trial Judge was wrong in applying the doctrine of “LAST SEEN” in the circumstance of this case. That this conclusion did not come out of the blues but was arrived at after reviewing the evidence

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adduced during the trial and the relevant authorities as applied by this Court in similar cases. He contended that none of the prosecution witnesses testified that he or she saw the deceased arrive back home on the 2/4/1996 after visiting PW2 as the only other time the deceased was seen was as a corpse in a pit toilet belonging to Akon Hanson Ibanga alias “Mmaette”.

Learned counsel further submitted that the blood stained shirt was not subjected to any forensic analysis whether it was that of the deceased nor was it tendered in evidence. He opined that the person who had explanation to make about the death of the deceased is PW2 who all the witnesses agree was the last person with the deceased on 2/4/96 when the deceased visited him. That there is no evidence that the deceased arrived home that day. He submitted that the findings of the trial Court that the Respondent was the last person seen with the deceased was not bourne out of the record and as such, was perverse. He stressed that the Court below was right to set aside such findings. Learned counsel cited the following cases in support of his arguments: Igabele v The State (2006) 6 NWLR

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(pt 975), 100 at 121, Moses Jua v The State (2010) 2 SCNJ 224 at 248, Gabriel v The State (1989) All NLR 742 at 745, Nwaeze v State (1996) 2 SCNJ 42 at 57 – 58, State v Aibangbee (1988) 2 NWLR (pt 84) 548 at 587 paragraph A. He then urged this Court to resolve this issue against the appellant.

The doctrine of “last seen” relied upon by the trial Court to convict and sentence the respondent to death but which was set aside by the lower Court means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has been found dead. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying Circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of

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such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See Igabele v The State (2006) 6 NWLR (pt 975) 100, Gabriel v The State (1989) 3 NWLR (pt 122) 457, Igho v the State (1978) 3 SC 87, Madu v The State (2012) 15 NWLR (pt 1324) 405, Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).

This “Last Seen” theory is not restricted to the Nigerian Criminal Jurisprudence alone. It is a principle of global application and is well settled and entrenched in this country. See the Indian case of Rajashkhanna v State of A.P. (2006) 10 SCC 172. See also Jua v The State (2010) 4 NWLR (pt 1184) 217, Archibong v The State (2006) 14 NWLR (pt 1000) 349 and Adepetu v The State(1998) 7 SCNJ 83.

In the instant case, I have carefully perused the evidence of all the prosecution witnesses including the judgment of the learned trial Judge but I have not seen where any of the witnesses stated that the deceased was last seen with the Respondent on 2/4/96. However, the trial Court made the following conclusion on page 81 of the record;

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“I believe that the accused person who was the person last seen with the deceased failed to explain how the deceased met his death.”

To the above conclusion, the Court below, in disagreeing with the learned trial Judge, made the following observations at page 165 of the record of appeal as follows:-

“Edem Udofia Ibanga (PW2) admitted that the deceased visited him on 2nd April, 1996 at No. 81 Ikpa Road, Uyo whereas the appellant and the deceased lived at No. 81A Ikpa Road, Uyo. PW2 was the last person to have seen the deceased on 2nd April, 1996. Thereafter, his corpse was fished out of a pit on 20th April, 1996. Had the learned trial Judge adverted his mind to this uncontested facts, he would not have relied on the doctrine of “Last Seen” to hold at page 52 lines 26 – 31 of the printed record that “I believe that the accused person who was the person last seen with the deceased failed to explain how the deceased met his death

“The above holding is not supported by the evidence on record. Another person who could have explained the whereabouts of the deceased between 2nd April, 1996 to 20th April, 1996 was Akan Hanson Udo Ibanga alia Mmaette the landlady of No. 81A Ikpa Road, Uyo from whose toilet the corpse was recovered.”

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I strongly agree with the Court below on this issue. There is no iota of evidence to sustain the theory of “last Seen” in respect of the instant case. Nobody testified that the deceased was last seen with the Respondent on 2nd April, 1996 when he disappeared. Rather, all the witnesses agree that the deceased visited the PW2 on that date, meaning that PW2 was in fact the person last seen with the deceased. There is no evidence that the deceased arrived home safely when he left PW2’s house on 2/4/96.

My Lords, two things, the blood stained shirt and the note allegedly left behind by the deceased would have been illuminating in this matter but both were not tendered. The question is where are the note and blood stained shirt Why were they withheld and not tendered in Court The Court below said this much on page 175 of the record thus: –

“Why would the deceased leave a note in his room at No. 8111 Ikpa Road, Uyo that if he died, it was the appellant who killed him Where is that note When was it written Why was the note and the blood stained shirt of the deceased not

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tendered as exhibits Where is the forensic evidence that the blood on the shirt was from the deceased when no prosecution witness had given evidence that the deceased had sustained bodily injury before or after his death”

The above are also some of the questions agitating my mind. For me, I think that since nobody had seen the Respondent with the deceased on 2/4/96, maybe both the blood stained shirt and the note would have given a clue as to whether he returned to the house on 2/4/96. They would have also suggested that the Respondent, who also resides in the same compound with his late father, may have seen him that day. Both parties agree that the deceased was a habitual drunkard and was being warned of his excessive drinking by all including the Respondent. There is also clear evidence that the deceased was very sick to the extent that he could not move out and was passing faeces in the house and that it was the respondent who used to pack the faeces until the deceased started to visit the pit toilet by himself.

My Lords, this is a criminal matter which attracts the highest punishment ever – the death sentence.

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Before an accused person is found guilty and ordered to be executed, the Court must be satisfied that the prosecution has proved its case against such an accused person beyond reasonable doubt. In the instant case, I have serious doubt about what happened to the deceased on 2nd April, 1996 when he visited PW2. The theory of ‘Last Seen’ applied by the learned trial Judge was done without evidence on record. Accordingly, I agree with the Court below that the principle was wrongly applied. This issue is thus resolved against the appellant.

ISSUE TWO:-

The second issue is whether or not the lower Court was right when it held that dispensing with medical evidence and report as to the cause of death was fatal to the Appellant’s case. In this case, both the learned counsel for the Appellant and that of the Respondent have stated the correct position of the law on the use of medical evidence in murder trials. The law is trite that as much as medical evidence is desirable to prove the cause of death, it is not a sine qua non as the cause of death may be established by sufficient satisfactory and conclusive evidence other than medical evidence showing beyond reasonable doubt that the death of

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the deceased resulted from a particular act of the accused person. The cases of Adekunle v The State (2006) 14 NWLR (pt 1000) 717 at 737 and Ubani v The State (2003) 18 NWLR (pt 851) 224 were cited by the learned counsel for the Appellant. Learned counsel for the Respondent relied on the case of Oforlete v The State (2000) 12 NWLR (pt 681) 415 to stress that a Court should not speculate on a case but should rely on hard facts. He also relied on the case of Onah V State (1985) 3 NWLR (pt 12) 236 at 246 where the appellant’s appeal was allowed notwithstanding the fact that the corpse of the deceased was found in a farm five yards away from the appellant’s compound, blood stain on his wrapper and machete, because medical evidence was not called to confirm the blood stains was human blood, the machete not subjected to forensic test to show the finger print on it marching that of the appellant. Whereas the appellant urged this Court to resolve this issue in favour of the appellant, the respondent urged otherwise.

There is no doubt as espoused by both counsel in this case that in a charge of murder, much as medical evidence is desirable to establish the cause of death,

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it is clearly not a sine qua non, as cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the accused. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity. See Ozo v The State (1971) ANLR 112, (1971) LPELR – 2891 (SC), Ben v The State (2006) 16 NWLR (pt 1006) 582, Nwachukwu v The State (2002) 12 NWLR (pt 782) 543.

In the instant case, there is no evidence as to when the deceased died and/or how he died. There is no evidence as to who killed him and the nature of the killing. There is also no evidence as to who dumped his body in the pit toilet of Akon Hanson Udo Ibanga alia Mmatte at No. 81B Ikpa Road, Uyo. The only reason the respondent is being accused of killing his father is that he once accused him of being a wizard. But the Respondent both in his extra judicial statements to the police and his evidence in Court also accused the PWs who are their family members as having accused his late father of being a wizard when his (Respondent’s) junior brother died.

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Evidence shows that it was the Respondent who went about searching for his father when he noticed that he was nowhere to be found. In my opinion, the circumstantial evidence against the Respondent is so weak that no reasonable and responsible Court can act upon.

I wish to return to the issue of the blood stained shirt allegedly recovered from the deceased room and the note he is said to have left behind. Why were they not tendered These two exhibits, had they been tendered would have made the picture clearer as to what happened to him and where. Even the medical doctor who performed the autopsy was not called at least to throw some light on the cause of death. In my opinion, this is one case which medical evidence was necessary as a beacon in the quest to unveil the cause of death of the deceased. The lower Court said this much on page 166 of the record as follows: –

“The prosecution did not call any witness to testify that the appellant was seen killing or dumping the deceased into the pit latrine at No. 81B Ikpa Road, Uyo. The medical doctor who performed the postmortem was not called to testify as to the cause of death, or the nature and severity of bodily harm, if ever sustained.”

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In Lori v The State (1980) 2 NCR 225 at 237, this Court held as follows per Nnamani, JSC

“It is conceded that medical evidence is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. See Kumo v The State (6) and Bakuri v State (4). But that is not the situation in the instant case. A dead body was recovered in circumstances leading to a suspicion of foul play and accused persons were charged with the murder of the victim and the evidence which the prosecution relied on was circumstantial. More useful medical evidence would not only have unequivocally established the cause of death but may have provided the necessary nexus between the death of the victim and some act of the accused (i.e. the second appellant). Worse still, it raised several possibilities and questions which were never conclusively excluded or answered.” (underline mine for emphasis).

In view of the weak circumstantial evidence adduced by the prosecution against the Respondent herein, I agree with the Court of Appeal that though medical

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evidence is not a sine qua non to prove the cause of death, it was desirable in the circumstance of the instant case. The withholding of the blood stained shirt and the death note found in the room is to the detriment of the prosecution’s case. By Section 167(a) of the Evidence Act 2011, the Court may presume that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. See The State v Salawu (2011) 18 NWLR (pt 1279) 580 (2011) LPELR -8252 (SC). I also presume that if the autopsy report was tendered or the medical doctor called, it would have been unfavourable to the Appellant’s case especially as the deceased was a habitual drunkard and sickler. I resolve this issue against the appellant also.

ISSUE THREE:-

This issue is whether the lower Court was right when it held that there is no circumstantial evidence that has led irresistibly to the guilt of the Respondent.

Learned counsel for the Appellant submitted that there was evidence of the blood stained shirt belonging to the deceased which was found in the deceased’s room by the IPO and this confirms that the deceased actually returned

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home after his visit to the PW2 on 2/4/96. After a review of the evidence led at the trial Court, the learned counsel submitted that contrary to the decision of the Court below that there is no circumstantial evidence that has led irresistibly to the guilt of the Respondent, the pieces of evidence led by the prosecution witnesses constitute circumstantial evidence pointing irresistibly to the guilt of the respondent in the murder of his father Norbet Sunday relying on Peter v The State (1997) 3 NWLR (pt 496) 625, Akpan v The State (2000) 12 NWLR (pt 682) 607, Amala v The State (2004) 12 NWLR (pt 888) 520 at 555 – 556. He urged the Court to resolve this issue in favour of the Appellant.

In response, learned counsel for the Respondent submitted that the evidence of the prosecution witnesses were not cogent and compelling enough and lacks credibility and does not point to one direction but three as follows:-

1. The direction of the PW2 who was the person last seen with the deceased.
2. The direction of Akon Hanson lbanga the owner of the toilet where the corpse of the deceased was found.
3. The direction of Edet Effiong who repaired the toilet.

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He contended that the Court below was right to hold that three persons listed above were suspects. He opined that the Court below was right to query the none tendering of the blood stained shirt, the note allegedly picked from the room and the refusal to call the medical doctor who performed the autopsy. He submitted that there was too much doubt in the case and such ought to be resolved in favour of the Respondent, relying on Archibong v The State (2006) 14 NWLR (pt 1000) 349 at 374 paragraphs G – H, Adekunle v State (2006) 4 NWLR (pt 1000) 717 at 737, Amala v The State (supra). He urged the Court to resolve this issue in favour of the Respondent.

Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in

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themselves alone cannot ground conviction, but when put together can constitute a good solid case for the prosecution. Circumstantial evidence is as good as, and sometimes better than any other sort of evidence. See Ukorah v The State (1977) 4 SC (Reprint) page 111 (1977) LPELR – 3345 (SC), Peter v The State (1997) 12 NWLR (pt 531) page 1, Adie v The State (1980) 1 – 2 SC page 116 (1980) LPELR 176 (SC).

Generally, in a murder charge, the prosecution must prove beyond reasonable doubt the following:-

(1) That the deceased died.

(2) That it was the unlawful act or omission of the accused person which caused the death of the deceased, and

(3) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

The prosecution can rely on direct eye witness account or by circumstantial evidence. The prosecution can even prove same by the confession of the accused. See Kaza v The State (2008) 7 NWLR (pt 1085) 125, Akinlolu v The State (2015) LPELR – 25986 (SC), Ogedengbe v The State (2014) 12 NWLR (pt 1421) 338, Durwode v The State (2000) 15 NWLR (pt 691) 467.

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It has already been established that in the instant case, there is no eye witness account and no confessional statement of the Respondent. The conviction of the Respondent was based on circumstantial evidence. I have said much on this while resolving issues one and two that the alleged circumstantial evidence relied upon by the learned Trial Judge to convict and sentence the Respondent is so weak and unreliable. None of the witnesses testified that he saw the deceased with the respondent on 2nd April, 1996 when he was last seen. The pit toilet in which the deceased was retrieved was in the premises of Madam Akon Hanson Ibanga at No. 81B Ikpa Road, Uyo and not the toilet at No. 81A Ikpa Road where the Respondent lived with the deceased. The last person to see the deceased alive on 2/4/96 was the PW2 whom the deceased visited. There is no evidence from any witness that he saw the deceased return home on 2nd April, 1996 after visiting the PW2. The Court below queried the non tendering of the note said to have been left by the deceased that if he died, it was the respondent that killed him.

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I also ask why the prosecution withheld the said note. Again, the prosecution failed to tender the blood stained shirt allegedly recovered from the room and finally, failure to call the medical doctor to testify on the cause of death. All the above issues raised by the learned counsel for the Respondent create serious doubt on the alleged circumstantial evidence which could have fixed the Respondent to the murder. The fact that he may have accused the deceased of being a wizard was cancelled by the fact that other family members including the prosecution witnesses also accused the deceased of killing his son. The fact that the deceased was a habitual drunkard and very sick are also issues which could suggest he may have fallen into the pit toilet by himself. Based on the above, I agree with the Court below that the circumstantial evidence led by the prosecution was not cogent enough to ground a conviction of murder. The doubts in this case must be resolved in favour of the Respondent. Issue three is also resolved against the appellant.

Having resolved the three issues against the appellant, it is my well considered opinion that there is no merit in this appeal.

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It is accordingly dismissed by me. The judgment of the Court of Appeal delivered on 17th January, 2013 is hereby affirmed. The Respondent is acquitted and discharged.

Appeal Dismissed.

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SC.709/2013