Suit Number:CA/B/252/2006 FRIDAY, 23 MAY 2008
Judges:SAKA ADEYEMI IBIYEYE (OFR) JCA (Presided) GEORGE OLADEINDE SHOREMI JCA (Read the Lead Judgment) ALI ABUBAKAR BABANDI GUMEL JCA
Counsel:E.O. Afolabi Esq. - for the Appellant.
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Mrs. O.S. Uwuigbe D.P.P. Ministry of Justice Edo State (with him, A
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A.E. Edozie Esq.) PLO, Edo State Ministry of Justice.
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SHOREMI JCA: This is an appeal from the decision of the High Court of Justice, Edo State delivered on 26 May 2006 wherein the appellant was B
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convicted for the offence of murder of one Rutherfold Iguobadia and
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sentenced to death by hanging. Dissatisfied with the judgment, the appellant appeal, to the Court of Appeal and filed a notice of appeal dated 2 June 2006 at page 81 of the record of proceedings. In the said notice, two grounds
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of appeal were filed.
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Succinctly put, the facts as deposed to in the record is that, at about C
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9.00p.m on 14 June 2004, the appellant named Abu (f) went to the home of the deceased Rutherford Iguobadia at No. 10 Aduwawa Benin City to confront him on the allegation that the deceased told her boyfriend that she was going out with another boy.
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The deceased went out to meet the appellant but in the course of D altercation, the deceased was injured and came back calling his father to take him to the hospital. Before they got to the Hospital, he died while the appellant ran away but was subsequently arrested, tried and convicted.
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At the trial, the prosecution called four witnesses while, the appellant
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gave evidence but did not call any witness. E
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For ease of reference, let me set out the testimonies of each of the
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witnesses:
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The first prosecution witness was the father of the deceased
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and testified that the incident took place in front of his house and he later took the police to the back of his house where the
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police recovered the broken bottle used by the appellant to F
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stab the deceased. Under cross-examination, he admitted that he made statement to the police wherein he admitted that there was a fight between the deceased (his son) and the appellant. The evidence of PW1 together with the cross-
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examination can be found at pages 24-26 of the record of G appeal. The said statement made by PW1 was marked as exhibit A and the said statement can be found at pages 11 to
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12 of the record of appeal.
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The second prosecution witness was the sister to the deceased.
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She claimed that she was there when the appellant inflicted H
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the injury on the deceased by stabbing the deceased on his
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neck. However, under cross-examination, she admitted that there was power outage on the day of the incident and contrary
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to the PW1 evidence to the police that there was a fight between the deceased and the appellant, she denied the suggestion claiming that there was no fight at all between the deceased and the appellant. Her evidence and her cross- examination can be found at pages 26 to 28 of the record of appeal.
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The PW3 was the police officer who investigated the case.
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After tendering the statement of the appellant and the other exhibits, he stated under cross- examination among other things that his investigation revealed that there was a fight between
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the deceased and the appellant before the appellant stabbed
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the deceased. He said further that he did not investigate the
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issue of a knife which the appellant said was brought out by the deceased as alleged by the appellant in her statement. It is interesting to note that the appellant had stated clearly that the deceased brought out a knife from his pocket and this formed
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part of the statement of the appellant to the police and even
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when she testified in court. The statement of the appellant at pages 15 to 16 of the record of appeal. The evidence of the
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I.P.O. and the cross-examination can be found from pages 28 to 30 of the record of appeal.
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The fourth prosecution witness was the doctor who testified as to what he saw on the body of the deceased before he
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carried out the post-mortem examination. He stated, that he saw a stab wound on the chest of the deceased and another
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stab on the side of the neck of the deceased, which was fundamentally different and contradictory to what the PW2
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said when she gave evidence. In fact, the doctor stated
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emphatically that he attributed the cause of death not only to the neck injury but also to the stab wound on the chest, which affected the heart with severe bleeding. The evidence of the doctor and the cross-examination can be found at pages 31 to
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32 of the record of appeal. It is important to note that no one
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gave evidence of the appellant inflicting injuries on the chest of the deceased.
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The appellant also testified at pages 33-35 where she said and I quote “On 14 June 2004, the deceased came to my shop at about
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9.00p.m. He demanded for an answer to his advances as to being his girlfriend. I told him that I did not accept to be his
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girlfriend. I told him that because I am a Moslem, I will not accept to be his girlfriend. That my religion forbids it and
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moreso, I would not want to break my virginity. The deceased A started to beat me and brought out a knife. The deceased used a knife to injure me on my hand. I started to cry and showed him the injury on my hand. The deceased brought out
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a bottle and hit it on the floor inside my shop. I was afraid
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since nobody was with us. So I picked one of the pieces of the B
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broken bottles and hit him with it. It was dark so I could not
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know where I hit the deceased with the broken bottle. After hitting the deceased, I ran away. The deceased started to pursue me that he must retaliate. In the process of running,
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the deceased fell on the ground. The deceased got up and started pursuing me again. The deceased fell again on the C
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ground. That was all. The prosecution witnesses were not present when the incident happened.”
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Under cross-examination she said -
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“The deceased had already injured me with a knife”
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The trial Judge after considering the addresses of both counsel, held D
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in his judgment as follows-
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“The submission of the learned defence counsel to the effect that the charge as laid under section 319 of the Criminal Code is incompetent as being brought under the wrong section of
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the law does not deserve detailed consideration. The answer E
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is simple. Thejudgment of Ogundare JSC relied upon in Amayo
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v. State, is an obiter dictum . It was not an issue canvassed and decided upon by the Supreme Court. In any event, section
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316is the definition section whilst section 319 is the punishment section which is the proper section of the law for the offence
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of murder. I say no more on this issue. F
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From the totality of the evidence before me, I prefer the evidence the prosecution witnesses particularly, that of PW2 to that of the accused person. As stated earlier, I believe that Rutherfold Iguobadia is dead and that he died from the
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stab injuries he sustained from the use of exhibit “C” by the G
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accused person. I believe the evidence of the prosecution as to how the deceased met his death and I accept it. I disbelieve the evidence of the accused person in its entirety. I believe that it was the accused who murdered the deceased in cold-
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blood. The law presumes that a person intends the natural and H
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probable consequence of his or her acts. The test to be applied
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in the circumstance is the objective test namely, the test of what a reasonable person would contemplate as the probable
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result of his or her acts: Garba v. State (2000) 77 LRNC 1126 at 1139.
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Having fully considered the totality of the evidence before me, I have come to the irresistible conclusion that the accused person murdered the deceased in cold blood. I find
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as a fact that Rutherfold Iguobadia (M) is dead and that he died from the injuries caused him by the intentional and
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voluntary act of the accused person. I am quite satisfied that the accused person deliberately and intentionally murdered the deceased with a broken piece of bottle exhibit C.
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In the result arising from the foregoing analysis, I hold
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that the prosecution has proved the guilt of the accused person
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beyond reasonable doubt. In the circumstances, I find the accused person guilty of the murder of Rutherfold Iguobadia
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(M) and I hereby convict her accordingly.
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At the Court of Appeal, parties filed briefs of argument. The D appellant’s brief of argumentis dated 15 August 2006, while the respondent’s brief was deemed properly filed on 19 June 2007. A reply brief was also filed on 25 June 2007. These briefs were adopted and relied upon by counsel
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on 25 February 2008 when the appeal was heard.
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Issue for determination
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These issues distilled by the appellant in his brief are
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“1. Having regard to the nature of the charge against the appellant
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and the crucial natureof the Investigating Police Officer (IPO), whether the trial Judge was right when he overlooked the
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evidence of the Investigating Police Officer, which was favourable to the appellant and treated same as hearsay.
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2. Having regards to the nature of the charge against the
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appellant, whether the trial Judge was right to convict the appellant of the offence of murder in view of theserious doubts and contradictions in the case of the prosecution.
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3. Whether the trial Judge rightly convicted the appellant in G respect of a capital offence of murder on the alleged evidence of oath against oath in view of the conflicting evidence adduced
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by the prosecution at the trial.
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The respondent in her brief formulated two issues as follows:
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(i) Whether the prosecution proved the case of murder against
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H the appellant beyond reasonable doubt to justify conviction. (i ) Whether there are material contradictions in the prosecution’s
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case to render the conviction a nullity.
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The issues as distilled by both the appellant and respondent can be
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dealt with by the issues as distilled by the respondent. A
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All the issues deal with evidence as contained in the record.
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The appellant argued that the facts in this case is capable of two interpretations but are favourable and the other unfavourable to the accused person, the court ought to decide the fact in the manner most favourable to
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the accused person. B
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He cited Ifejirika v. State (1999) 3 NWLR (Pt. 593) at page 79 and
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the Supreme Court case of Adeyemi v. State (1991) 4 LRCN 1363 at 1388. He submitted that the evidence of the Investigating Police Officer which was unchallenged, was favourable to the appellant and ought to have been
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decided in favour of the appellant. He argued that it was not for the trial Judge to glean over the area which are favourable to the appellant in order C
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to convict. Cited Agwu & 2 Ors. v. State (1965) NMLR 18 at 20.
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Theappellant’s counsel querried where the trialJudge got the evidence that it was the appellant that injured the deceased on the chest from. He said this attitude is condemnable: Ansha & Anor. v. State (1998) 2 NWLR (Pt. 537) 246 at 262 - 263. Another area dwelt upon by the appellant is the D contradiction contained in the evidenceproduced. In his words, he submitted and I quote:
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“4. Another question that will agitate my lords is who is to be believe among the prosecution witness vis- a-vis the evidence
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of the appellant as to whether there was a fight or not and as E
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to whether the appellant actually stabbed the deceased on the
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chest. On record, the death of the deceased was as a result of the combined injuries on the chest and on the neck of the
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deceased and there was no scintilla of evidence before the trial Judge that it was the appellant that inflicted the injury on
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the chest of the deceased. We anchor our submission on the F
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case of Aliyu v. State (2000) 2 NWLR (Pt. 644) 178 at 193 where Omage JCA stated at pages 252 - 253,
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that where contradiction in the evidence of the prosecution on the cause of death is on a medical issuein the trial, it is sufficient
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to cast doubt in the mind of the trial Judge and the learned G Justice of the Court of Appeal stated further that the trial court abdicated its responsibility when it failed to resolve the contradiction in the evidence of the other prosecution witnesses and those of PW2 and 4 (doctor) in favour of the appellants.
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The Court of Appeal even cited the case of Ansha v. State H
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(1998) 2 NWLR (Pt. 537) 246.
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It is our further submission that a trial court has no duty to offer any explanation on behalf of the prosecution as it is not
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its duty to bridge the yawning gaps in the case of prosecution.
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Morka v. State (1998) 2 NWLR (Pt. 537) 294 at 302. We submit further that, it is not sufficient to prove that the act of the accused person could have caused the death but since the possibility that death may have been due to other causes is
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not excluded, then the conviction of the appellant cannot stand. We refer this court to the case of Rex v. Oledima 6 WACA
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202. The death of the deceased as stated by the doctor was attributed to the combined effect of injuries on the neck and chest, which pierced the heart of the deceased and not only or
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solely on injuries on the neck. The evidence of the PW4, doctor
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at page 32 lines 9 - 17.
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5. Another question that will agitate my lords is whether the said PW2 witnessed the incident in view of her evidence to the effect that there was no light on that day and that the incident happened at after 9.00p.m.
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6. Can the PW2 safely say there was no fight having admitted
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there was not electricity/light in their house on that day? And the IPO (PW3) still made the matter to be in doubt when he admitted under cross-examination that his investigation did not reveal whether there was light or not. Page 30, lines 16 - 17.
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7. If there was no electricity, how did she see the appellant and the deceased? Did she use torchlight, candle or rechargeable
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lamp, these are lingering and serious doubts. The issue would have been different, if the incident happened in broad daylight,
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which will require no electricity for PW2 to see clearly and authoritatively if there was no fight. The observation of
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Oguntade JCA in the case of Ansha v. State (1998) 2 NWLR
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(Pt. 537) 246 at 262. “PW1 had given evidence that the incident happened about mid-night. He did not however say that there was any light or illumination which enabled him to observe the proceedings at the scene more clearly than PW2 who
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categorically said he could not see those who attacked the
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deceased as it was dark.
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He also submitted that the evidence of PW2 which the trial court relied upon to convict the appellant was incapable of being believed in the surrounding circumstance which were in conflict. He argued thatthe appellant
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was entitled to the benefit of the doubt created. Material contradictions are very fatal to the case of the prosecution therein citing Moshood v. State
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(2004) 14 NWLR (Pt. 893) 422 at 438, (2005) All FWLR (Pt. 277) 964
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paragraphs D and F.
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He urged the court to allow the appeal and set aside the conviction A
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and sentence imposed by the lower court.
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The respondent in his argument said the prosecution had proved its case beyond reasonable doubt, stating the standard of proof he cited Akinyemi v. State 2001 2 ACCR 32 at 44; Mbenu v. State (1988) 3 NWLR
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(Pt. 84) 615 at 626; Idemudia v. State (1999) 61 LRCN 1043 at 1063; B
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Igabele v. State (2006) All FWLR (Pt. 311) 1797, (2006) 6 NWLR (Pt.
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928) 100 at 122.
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He stated that the case of Ogbe v. State (1992) LRCN 362; Kalu v.
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State (1993) 6 NWLR (Pt. 279) 59 at 80, all set out what is required to
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prove a case of murder. He argued that the pieces of evidence contained here was corroborated by PW2. C
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“On issue 2 as distilled by him, he submitted as follows:
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I humbly submit that there are no material corroborated in the prosecution’s case capable of rendering the conviction a nullity.
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In the case of Fatai Alani v. State (1993) 7 NWLR (Pt. 303) 112, ratio 1, it is stated that “a piece of evidence contradicts another when it D affirms the opposite of what the evidence has stated and not when there is minor discrepancy between them.”
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The definition goes further to state that “it is not every contradiction or variance in evidence of witnesses for the prosecution that is fatal, the
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contradiction then must be material contradiction which strikes at the basis E
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or root of the case and sufficient to raise a doubt in the mind of the trial
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court: Fatai Alani v. State ratio 2 ; Princent v. State (2003) FWLR (Pt. 141) 1878, (2003) 104 LRCN 212 at 218 ratio 10; Esagbedo v. State 1989
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SCN 140; Igabele v. State (2006) All FWLR (Pt. 311) 1797, (2006) 6
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NWLR (Pt. 928) 100 at 120, paragraphs C-D, page 132 paragraphs B-D.
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He urged the court to dismiss the appeal and affirm the judgment of F
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the trial Judge in that the prosecution has proved its case beyond reasonable doubt and that there are no material contradiction in the evidence of the prosecution.
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In his reply brief, the appellant submitted that the trial Judge based
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his decision on speculations. G
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I have stated briefly the submission of the counsel for the appellant and the respondent. I am of the opinion that all the issues as argued can be settled with one which is:
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Whether the evidence adduced by the prosecution was cogent
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enough to warrant a conviction of the appellant. H
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Let me say here that the learned trial Judge appreciated the fact that
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there are discrepancies in the evidence of the prosecution witnesses when at page 75 - 77 of record he stated as follows:
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Learned counsel for the accused person made a heavy weather out of a molehill on the issueof contradictions in the evidence of the prosecution witnesses. He posited that, there were contradictions in the evidence of prosecution witnesses as to whether there was a fight between the deceased and the accused person. It is trite law that for contradictions in the evidence of the prosecution to be fatal, it must go to the root of the entire charge. In other words, the
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contradictions must be fundamental and substantial. Mere minor discrepancies or miniature contradictions which merely scratchesthe surface of inconsequential points, are really not fatal to the case of the prosecution:
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Ibeh v. State (1997) 1 NWLR (Pt. 484) 632; Nnolim v. State (1994) 18
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ALRCN 1; Esangbedo v. State (1989) 7 SCN 310.
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In the case of Igabele v. State at 120 Paragraph C-D, 132 paragraph B-D, the Supreme Court held thus:
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“It is not every inaccuracy in the testimonies of prosecution witnesses that will render such testimony unreliable. For
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contradictions in the evidence of prosecution witnesses to be
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material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or in consistencies must relate to the offence charged. The contradictionsmust be substantial and fundamental to the main
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issue for them to be fatal to the prosecution’s case. Minor inaccuracies and discrepancies that do not touch the justice or
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substance of a case should not be sufficient ground to disturb a judgment”.
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Also; Ehot v. State (1993) 4 NWLR (Pt. 290) 644; Ndike v. State (1994) 8
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NWLR (Pt. 360) 33; Okeke v. State (1995) 4 NWLR (Pt. 392) 676.
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I have myself adverted to the contradictions. Admittedly, PW1 stated
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in his statement exhibit A thus; “I pleaded with them to help me, they took the corpse to my house to see where the fight took place”. In his testimony, he stated emphatically that there was no fight between the deceased and the accused person. In any event, his statement in exhibit A cannot be
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regarded as categorical admission of the fact that there was a fight between
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the deceased and the accused person on that day. PW3 under cross- examination said that there was a fight, PW1 and PW3 are not eyewitnesses to the incident that occurred on 14 June 2004. PW1 in his evidence stated unequivocally that he was not present when the incident took place. PW3,
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who is the IPO, was not also present at the scene of the incident. PW2, the only eyewitness consistently maintained in her evidence that there was no
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fight between the deceased and the accused person on that day. The issue would have been completely different if PW2, the eyewitness who was
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present at the scene had said that there was a fight between the deceased A and the accused person in any event, the evidence of PW1 and PW3 are at best hearsay evidence. It is my considered view, that the minor inconsistencies are not material or fundamentalto the case of the prosecution,
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the PW1 and PW3 being not present at the scene.
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If the learned trial Judge found that there were contradictions, was B
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he expected to conjure evidence to cure the contradictions. Ateji v. State
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where the Supreme Court was of the view that, if the learned trial Judge had considered the whole evidence in the case with care and in the light of defects, discussed in the judgment of the court, he would not have come to
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the erroneous conclusion that the prosecution case had been proved beyond reasonable time: Ateji v. State (1976) NMLR 75. C
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Let me avert my mind to the evidence of PW2 who claimed to be an eyewitness to the wholeincident. She said shedid notknow thatthe appellant was holding a bottle in her hand as the deceased turned her back to enter the room, the appellant jumped and stabbed the deceased on the neck and
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ran away. D
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The appellant though did not deny stabbing the deceased, she said it all happened in her shop at 9.00p.m where there was no light.
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What is more, the appellant told the story of an injury caused by a knife from the deceased, the PW3, the Investigating Police Officer admitted
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that in his investigation, he found that there was a fight between the deceased E
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and the appellant. This area of the case was not adverted to in the learned
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trial Judge’s judgment.
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Furthermore, when one consider the evidence of the father of the
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deceased and that of the PW2, one wonders whether the two of them witnessed the incident,
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On record, death of the deceased was as a result of the combined F
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injuries on the chest and on the neck of the deceased and there was no iota of evidence before the trial Judge as to who inflicted the injury on the chest of the deceased: Aliyu v. State (2000) 2 NWLR (Pt. 544) 178 at 193.
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As I have earlier said, the issues canvassed in the appeal can be answered by asking the pertinent question that, was the evidence offered in G this case sufficient to warrant a conviction for murder?
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Murder is a capital offence, a most heinous offence. Therefore, before an accused is charged with murder, there must be sufficient materials by way of proof of evidence to justify and back up the offence. The court
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should be able to see at a mere glance of the proof of evidence that the H
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accused is properly charged with the offence. If the offence of murder is
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camouflaged like a screen to deceive the court to punish an innocent person, the court has the competence to remove the veil and decide accordingly:
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All FWLR Abu v. State (Ibiyeye (OFR) JCA) 139
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Suleman v. C.O.P (2008) Vol. 33 (Pt. 11) NSCQLR 735 at 769 E - G. The
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learned trial Judge stated correctly the principle in cases of contradictions but failed to apply it properly in this case rather he tried to supply evidence that were not supplied by the prosecution.
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It has rightly been said that Judges are not allowed by the law to
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speculate or conjure on possible facts. They do not have such jurisdiction. That is wrong. The only jurisdiction they have is to make use of the cold
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facts of the case as presented by the parties in open court and use them. They cannot do more. They can not even do less such is the job of the Judge. After all, a Judge is not a metaphysician. He is not even a sooth
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sayer He is simply a Judge at law” per Niki Tobi JCA as he then was in
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Adisa v. State (1991) 1 NWLR (Pt. 168) at 490 at 500.
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At page 15 of the record of proceedings i.e. the statement of the appellant, it is shown that her age was put at 16 (sixteen). Throughout the trial, nobody paid any attention to this:
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“Where a person under seventeen years of age is found guilty D of murder under our Criminal Laws, such a person shall not be sentenced to death but shall be ordered to be remanded or
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be detained at the pleasure of the President or the Governor as the case may be: Orisakwe v. State (2004) 12 NWLR (Pt. 887) 258; Modupe v. State (1988) 9 SC 1. Also, Ralph James
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v. Ankers (1975) Vol. 16 CAR 170.
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Even if the appellant was found guilty of the offence of murder she
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ought not have been sentenced to death. This was a serious error in the trial.
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In conclusion, I hold the view that the trial Judge was wrong to have convicted and sentenced the appellant on the materially contradictory
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evidence of the prosecution and having regard to her age sixteen at the time
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she was alleged to have committed the offence.
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The appeal therefore succeeds.
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In effect, the conviction and sentence of the lower court is herewith quashed and I enter a discharge and acquittal in its place.
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IBIYEYE (OFR) JCA: I have had a preview of the judgment just delivered by my learned brother, Shoremi JCA. I am in full agreement with the views expressed therein. I also find merit in the appeal and I am of the opinion that
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H the learned trial Judge was in error to have convicted and sentenced the appellant to death moreso when she, at the time of committing the alleged
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offence, was only sixteen years old. She can only, on been found guilty, be remanded or detained at the pleasure of the President of the Federal Republic
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of Nigeria or the Governor of the State where the offence of murder took A place. In the instant case, it is Edo State: Orisakwe v. State (2004) 12 NWLR (Pt. 887) 258; Modupe v. State (1988) 9 SC 1; Ralph James v.
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Ankers (1975) Vol. 16 CAR 170.
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The conviction and sentence of the trial court are accordingly quashed and I enter the verdict of discharge and acquittal for the appellant. B
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GUMEL JCA: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Shoremi JCA. I fully agree with him that this appeal ought to succeed for being meritorious. This appeal is
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hereby allowed. I abide by all the consequential orders in the lead judgment. C
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Appeal allowed
