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Circumstantial evidence with two interpretations can not earn conviction

Published by Punch on Mon, 19 Dec 2011


In the Court of Appeal holden at Ilorin on Thursday, November 3, 2011 before their Lordships: Justices Tijani Abdullahi, Joseph Ikyegh, and Ita George Mbaba. Appeal No. CA/IL/C. 14/ 2011BetweenSebo BelloAppellantAndThe State RespondentA close look at the testimony of this key witness for the prosecution would clearly and indeed reveal that the deceased died, but there was no reasonable evidence before the trial court from which any connection could be made between the death of the deceased and the act of the appellant.There was indeed evidence as testified by the witness that the appellant visited his house where the deceased was staying but there was no evidence as to the time the appellant visited the deceased. There was also no evidence as to whether or not the appellant slept with the deceased on the fateful day or he left before the deceased retired to her bed.This piece of evidence becomes crucial in view of the fact that the incident was said to have taken place around 2am. The mere fact that the appellant visited the deceased on the day in question bears no convincing and reasonable correlation with the death of the deceased. On this score I cannot agree more with the learned counsel for the appellant when he submitted thus:Neither should the witness testimony that the appellant to his captors that it was the will of God to kill his wife be wholesomely relied upon, especially because such a statement could not have been a product free from coercion, force and apprehension of present danger to his life at the time the statement was uttered. It should be pointed out here that the PW3 told the court that there was a joint manhaunt of the police and the vigilante for the capture and arrest of the appellant.It is instructive to pause here and state that, the findings of the learned trial judge that the appellant was sufficiently linked with the commission of the offence of killing the deceased, as against any other person at the time of about 2am on December 24, 2006, when no other person slept with the deceased apart from the appellant, in view of what I adumbrated supra is gravely erroneous as is not borne out of the evidence before the court.I am of the considered view that it can be said that the evidence proffered by the prosecution herein lacks in exactitude and cannot be said to have led to only one conclusion, the guilt of the appellant. The fact that the appellant visited the house of PW3 alone cannot and ought not to be inferentially equated as giving rise to the Last Seen Principle as the learned trial judge has done in this case.The visit may in the best case scenario, give rise to suspicion and suspicion in law, no matter how strong can never be a ground for conviction in the absence of cogent and compelling evidence.See the case of Onah vs State (1985)3NWLR(pt.12)P.236.It is noteworthy to observe that this Court, per our erudite emeritus Justice Niki Tobi (JCA) as he then was once held thus:Murder as an offence, carries a capital punishment. In order to convict an accused of murder, the prosecution must prove that the accused and no other person or persons committed the offence. Once there is any doubt, the slightest doubt, in the mind of the trial judge that some other person other than the accused committed the offence of murder, the trial judge must as a matter of our adjectival law resolve the doubt in favour of the accused person. See Ajose vs The State (2002)7 NWLR (pt.766) p.302 at 319,parasD-E.Again, in the case of Gamba Garba vs The State, unreported Appeal No. CA/J/226C/2005, this court per I. G. Mbaba, J.C.A. said:I hold that, going by the evidence adduced before the trial court, that court was not right to have convicted the appellant and sentenced him to death. The case of the prosecution was replete with doubts and was wanting.The work of a judge is a very delicate and sacred job especially as he is sometimes vested with the power to play God in determining the fate of his fellowmen. The office must be exercised in deep humility and utmost care and deference to the rule of law and fear of God, such that, if it becomes inevitable to pronounce on the death (or any punishment) of an accused person arraigned before him, after due trial, the evidence adduced and the law will stand to vindicate him in his decision.This brings me to the well-known maxim of our criminal jurisprudence that, justice delayed is justice denied. As a corollary to this, one cannot be wrong to say that justice rushed is equally justice denied. The question to be asked at this stage is this, can it be said that justice was not rushed in this matter'This question must be answered in the affirmative in view of the inexplicable reason why the statement of the appellant said to be confessional was rejected in evidence without conducting a trial-within-trial, simply because the prosecuting state counsel had conceded that same was obtained involuntarily in spite of the evidence of PW2 who recorded the statement of the appellant.It is now settled beyond peradventure that once a statement is objected on the ground of involuntariness, a trial-within-trial should and ought to be conducted with a view of finding out whether or not the statement is admissible in evidence.It is my considered view and I hold same very strongly that, justice in the words of the erudite emeritus Justice of the apex court, Irekefe, JSC, (as he then was) of blessed memory, would cease to be just, if viewed only from the end of the accused. There must be justice from the end of the accused.There must be also justice from the end of the wronged. See Nafiu Rabiu vs The State (1980) NSCC 291 at 311 (paras 5-10).Again, in the case of Okegbu vs The State (1979) 11 SC 56 at 68, also reported in (1979) NSCC 151 at 180 (para 45), our departed learned law lord, Aniagolu, JSC pointedly held that:It so often happens that in murder cases the defence usually talks of justice only in relation to the accused person. Very often justice as it affects the victim of the murder charge is either forgotten or ignored by the defence.But just as it is essential that justice be done to the prisoner, so must it also be done to the deceased who, even in the lonely depths of his grave, cries out loudly for the circumstances of his death to be justly examined and justice meted to him.I say no more on this aspect of the appeal under consideration.Be that as it may, in the light of all that has been said, this issue must be resolved in favour of the appellant and against the respondent.The appeal of the appellant is meritorious and it is hereby allowed. The conviction and the sentence of the appellant are hereby quashed. The appellant is discharged and acquitted forthwith.
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