AREA OF LAW:

APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE,  PRACTICE AND PROCEDURE, WORDS AND PHRASES

 

SUMMARY OF FACTS

The Appellant and one other were arrested and arraigned before the High Court of  Ogun State at Ijebu –Ode on a two count charge of Conspiracy to commit murder and  murder contrary to section 325 and 316(2) punishable under section 319(1) of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria 1978. The Prosecution sought to tender the statements of the accused persons but an objection to the voluntariness of the statements was sustained and same were rejected. At the end of the prosecution’s case, the accused made a no case submission. In a considered ruling, the trial judge found the accused persons guilty, convicted and sentenced them to death by hanging. They both appealed against the conviction filing separate Notices of Appeal. The lower court reduced the charge of murder to attempted murder and sentenced the accused persons to life imprisonment. The Appellant has further appealed to this court against the conviction and sentence by the lower court.

 

HELD:

Appeal Dismissed

 

ISSUES FOR DETERMINATION

– Whether in the circumstances of this case, the prosecution has proved its case beyond reasonable doubt that the appellant was guilty of the offence of  attempted murder.”

 

RATIONES:

BRIEF OF ARGUMENT –IMPORTANCE OF BRIEF OF ARGUMENT

“It must be remembered that brief is a very important process in the appellate court. It is in it the parties posit propositions of law or facts as issue(s) for determination in the appeal, which determination by the appeal court would decide the fate, the success or failure of the appeal’ The issues for determination must arise directly from or directly relate to the grounds of appeal already filed”. PER S. GALADIMA, J.S.C.

 

CIRCUMSTANTIAL EVIDENCE – MEANING OF CIRCUMSTANTIAL EVIDENCE

“Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature is capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude: See Akpan V. The State (supra). It is a combination of evidence of circumstances against an accused when taken together; creates strong conclusions of his guilt with high degree of certainty. It is very often the best evidence, sparingly applied because of possibility of fabrication which may cast suspicion on innocent person. See: Moses Jua v. The State (2010) 1-2 SC. 96, Akpan Archibong v. The State (2006) 5 SCNJ 202, Nafiu Rabiu v. The State (Supra). For circumstantial evidence to ground a conviction, it must lead to one conclusion, that is, the guilt of the accused person whose evidence helps appellant to acquittal, as it leaves room for such acquittal.”PER S. GALADIMA, J.S.C.

 

 PROOF OF MURDER OR MANSLAUGHTER – IN A CHARGE OF MURDER OR MANSLAUGHTER, IT MUST BE ESTABLISHED THAT THE ACT OF THE ACCUSED PERSON CAUSED THE DEATH OF THE DECEASED

“The position of the law is that to establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it actually did. No matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, that act would not fall within the provision of 5.316 of the Criminal Code (supra)and therefore would not constitute murder. See Shosimbo V, The State (1974) ALL NLR 603; (7974) 70 SC. 59 Omini V. The State (1999) 72 NWLR (pt.630) 768 at 782; (7999); 72 LRCN 3044.”PER S. GALADIMA, J.S.C.

BURDEN OF PROOF IN A CHARGE OF MURDER – THE BURDEN OF PROOF IN A CHARGE OF MURDER IS ON THE PROSECUTION

“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: Idemudia v. State @ (2001) FWLR (Pt.55) 549 at 564; 199) 7 NWLR (Pt.610) 202; Akpan Vs. State (2001) FWLR (Pt.56) 735; Madu Vs. State (2012) 15 NWLR (Pt.1324) 405. Indeed, the Prosecution is expected to prove that the act of the accused or omission actually caused the death but not that it could have caused death. See; Ubani &. Ors Vs. State (2003) 18 NWLR (Pt.85l) 224; (2004) FWLR (Pt.191) 1533; Godwin Igabele Vs. The State (2006) 3 SCM 143; (2006) 6 NWLR (Pt.975) 100.” PER O. ARIWOOLA, J.S.C.

LAST SEEN – THE DOCTRINE OF LAST SEEN

“The doctrine of “Last seen” readily come to play. That if a person who was last seen alive in company of another is found dead, that other in whose company the deceased was last seen alive, in law, is presumed to bear full responsibility of the death of the deceased. He certainly has some explanation to give as to what caused the death, if he says he did not kill the deceased.”PER O. ARIWOOLA, J.S.C.

 

PROOF OF COMMISSION OF AN OFFENCE- PROOF OF COMMISSION OF AN OFFENCE MAY PROCEED ON CIRCUMSTANTIAL EVIDENCE

“Generally, and this court had held that, It is not a condition or legal imperative that there must be an eye witness to sustain or prove a murder charge beyond reasonable doubt. The proof of the commission of the offence may proceed on circumstantial evidence. See; Ndike Vs The State (1994) 8 NWLR (Pt. 360)33, (1994) 9 SCNJ 46; Lori & Anor Vs. State (1980) 8-11 SC.”PER O. ARIWOOLA, J.S.C.

 

 CREDIBILITY OF EVIDENCE – THE EVIDENCE OF ONE CREDIBLE WITNESS, IF ACCEPTED AND BELIEVED BY A TRIAL COURT IS SUFFICIENT TO JUSTIFY A CONVICTION

“The law is trite and well established that the credibility of evidence for purpose of securing conviction of an accused is not dependent ordinarily on the number of witnesses that testify on the point. In other words, the evidence of one credible witness, if accepted and believed by a trial court is sufficient to justify a conviction. See the decision of this court in the case of Nwaeze V. State (1996) 2 NWLR (Pt. 428) page 1 where the prosecution’s case was based entirely on circumstantial evidence and conviction was grounded thereupon.”PER C.B.OGUNBIYI, J.S.C

 

 CIRCUMSTANTIAL EVIDENCE – DUTY OF THE COURT TO ACT AND CONVICT ON A STRONG CIRCUMSTANTIAL EVIDENCE THAT IS LED AGAINST AN ACCUSED PERSON IN A CRIMINAL TRIAL

“The law is firmly established that where strong circumstantial evidence is led against an accused in a criminal trial and it gives strong reason for drawing of a presumption or inference, which irresistibly points to the accused only as the perpetrator of the offence to the exclusion of any other person, then a court would be entitled to act and convict on such inference that the accused and non other must have committed the offence. See the case of Esai V. The State (1976) 11 SC 39 and Ukorah V. The State(1977) 4 SC 167, also Kim V. The State (1991) 2 NWLR (Pt.175)622.”PER C.B.OGUNBIYI, J.S.C

 

CHARGE OF MURDER – INGREDIENTS THE PROSECUTION MUST PROVE IN A CHARGE OF MURDER

“In a charge of murder, the prosecution has a duty to prove that:

1. the deceased had died

2. the death of the deceased was caused by the accused

3. 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.

See Inyang Etim Akpan V. The State (1994) LPELR –382 (SC), (199419 NWLR (pt. 363) 347, Akinfe V. The State (1988) 3 NWLR (pt. Ss) 729, Ogha V.The State (1992) 2NWLR (pt. 2221 164, Oludamilola V. State (2010) 8 NWLR (pt.1197)565.” PER J.I.OKORO, J.S.C

CIRCUMSTANTIAL EVIDENCE – NATURE OF CIRCUMSTANTIAL EVIDENCE TO BE RELIED UPON TO CONVICT AN ACCUSED PERSON

“It is trite law that circumstantial evidence to be relied upon to convict an accused person should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that the accused person committed the offence. See Yongo & Anor. V. Commission of Police (1992) LPELR -3528 (SC), (1992) 4 SCNJ 113, Abieke V. The State (1975) 9 – 11 SC 97.” PER J. I.OKORO, J.S.C

MURDER – IN A CHARGE OF MURDER, EVIDENCE MUST BE LED TO PROVE THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT

“In all cases where a charge of murder is in issue, it is very essential that evidence must be led to prove the guilt of the accused beyond reasonable doubt. It must be shown in clear and unmistaken terms that the deceased died as a result of the act of the accused person. Where the circumstances of the attack on the deceased are clear, the injuries inflicted upon him as a result of the attack are graphically described to lead to an irresistible conclusion that the deceased died as a result of the attack and the injuries, the court can convict even if there is no direct eye witness. See Babaga V. The State (1996)7 NWLR (pt. 460) 279”. PER J. I.OKORO, J.S.C

 

STATUTE REFERRED TO:

Criminal Code Law Cap 29 Laws of Ogun State of Nigeria 1978.