Securing a Conviction on Circumstantial Evidence

In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 9th Day of December, 2016

Before Their Lordships

Ibrahim Tanko Muhammad
Nwali Sylvester Ngwuta
Olukayode Ariwoola
John Inyang Okoro
Amiru Sanusi
Justices, Supreme Court
SC. 235/2012

Between
Chief Vincent Duru (Alias Otokoto)…………….. Appellant

And
The State………….Respondent
Lead Judgement delivered by Olukayode Ariwoola, JSC

“”……for circumstantial evidence to support or ground a conviction, it must not only be cogent, complete and unequivocal, but compelling and must lead to an irresistible conclusion that the accused and no one else, is responsible for the murder of the deceased””

Facts
On 19th September, 1996, one Ikechukwu Okoronkwo (the deceased) hawked cooked groundnuts around Otokoto Hotel, when a certain Innocent Ekean- yanwu lured him into the Hotel on the pretence that he wanted to buy groundnuts. The deceased was later killed by Innocent Ekeanyanwu with the assistance of one Alban Ajaegbu and Samson Nnamito, on the instruction and request of the Appellant (the proprietor and Manag- ing Director of the Hotel). It was gathered that a certain Leonard Unogu had requested for the head of a young male person for ritual purposes, by which the deceased’s head was decapitated and the tip of his penis cut off. His remains was buried in a cassava farm within the premises of the Hotel. However, while Innocent Ekeanyanwu was on his way to deliver the head of the deceased to Leonard Unogu, he was arrested by a team of policemen who found on him, a decapitated human head identified to be that of the deceased. During his interrogation by the police, Ekeanyanwu confessed that he had killed the deceased on Leonard’s request to procure him a head, and had made efforts to deliver the head, but did not see him before he was arrested. Upon the admission and the discoveries by the police, the Appellant and six others were arrested and charged jointly at the High Court of Imo State, with murder of the deceased aged eleven (11) years, an offence punishable under Section 319(1) of the Criminal Code Cap. 30 Laws of Eastern Nigeria, 1963 (applicable in Imo State of Nigeria). At the trial, several witnesses were called, as well as several exhibits tendered. The learned trial judge found the Appellant, amongst others, guilty. He was convicted and sentenced to death by hanging. The Appellant’s ap- peal to the Court of Appeal was found unmeritorious and therefore, dismissed. Being dissatisfied with the judgement of the Court of Appeal, the Appellant further appealed to the Supreme Court.

Issues for Determination
The issues submitted for determination before the Supreme Court were as follows: (i) Whether the learned Justices of the Court of Appeal were right to have concluded that Section 30 of the Evidence Act, LFN, 2011 as amended allows them to rely on the facts contained in Exhibits 21 and 36; (ii) Whether the learned Justices of the Court of Appeal were right to have relied on Exhibits 21 and 36 against the Appellant, when it was clear that the two Exhibits were unreliable in law; and (iii) Whether the learned justices of the Court of Appeal were right to have decided that the conviction of the Appellant was proper on the basis of circumstantial evidence, when the said circumstantial evidence was not direct, positive nor cogent as required by law.

Arguments
Arguing the first issue, learned Senior Counsel for the Appellant submitted that the justices of the lower court were wrong to have concluded that Section 30 of the Evidence Act, 2011 as amended, allows them to rely on the facts contained in Exhibits 21 and 36 against the Appellant. The Respondent referred to the findings of the Court of Appeal and contended that the Court did not rely on the confessional statement of the Ekeanyanwu, but on facts and evidence discovered as a result of Exhibits 21 and 36. On the second issue, Counsel for the Appellant had argued and submitted that their Lordships ought to have rejected and overturned the Appellant’s conviction when they realised that the trial judge placed reliance on the Exhibits which were unreliable in law.

He also submitted that Exhibit 36, one of the confessional statements of Ekeanyanwu (a co-accused person) who died in police custody before trial, cannot be relied upon against the Appellant because the statement was not made in the presence of the Appellant for him to have adopted it either by words or conduct. He relied on the provision of Section 29(4) of the Evidence Act, 2011 and the case of DIBIE v THE STATE (2005) All FWLR (Pt. 259) 1995 in support of his submission that a confessional statement of an accused person is not evidence against a co-accused person. On the third issue, Counsel for the Appellant submitted that since there existed no such cogent, direct, compelling and unequivocal circumstantial evidence against the Appellant, the learned Justices of the Court of Appeal were wrong to have resorted to circumstantial evidence. On this issue, Counsel for the Respondent submitted that the inferences made by the two courts were concurrent findings of facts based on credible circumstantial evidence.

Court’s Rationale and Judgement
Determining the three issues formulated together, the Supreme Court relied on OGBA v THE STATE (1992) 2 NWLR (Pt. 222) 1634, amongst others, and identified that to secure the conviction of murder, the Prosecution is expected to prove the necessary ingredients: (a) that the deceased had died; (b) that the death was caused by the accused; and (c) that the act or omission of the accused caused the death of the deceased. The Court held further that for the Prosecution to establish the guilt of the accused beyond reasonable doubt, same could be by confessional statement; eye witness or circumstantial evidence. It was not in doubt that the Prosecution relied on circumstantial evidence to prove the case, since there was no direct evidence of an eye witness and the Appellant did not confess to killing the deceased.

Based on the foregoing, the Supreme Court, relying on the case of YONGO v COP (1992) 80 NWLR (Pt. 257) at 36 stated that for circumstantial evidence to support or ground a conviction, it must not only be cogent, complete and unequivocal, but compelling and must lead to an irresistible conclusion that the accused and no one else, is responsible for the murder of the deceased. In this case, Ekeanyanwu had in his first statement admitted to killing the deceased, but in Exhibit 36, he made reference to the role played by the Appellant in the killing of the deceased. The Apex Court on that note, indicated that there was nothing on record to show that after the statement implicating the Appellant was made, the Appellant was once more confronted with the statement or that he adopted the contents of the statement as his own. The Court relied on the settled principle of law on the confessional statement of an accused, that it is only admissible against the maker but not against a co-accused who is incriminated in the said statement, except the co-accused adopts same. The Supreme Court on this issue held that, in the ordinary sense, the court cannot ascribe the confession in the said statements to the Appellant.

On the consequence of any such fact discovered from information gathered from a person accused of an offence, the Supreme Court relied on the judgement of the lower court and stated that where information is received, the law permits the admissibility of evidence of discoveries in consequence of information given which ordinarily may not be admissible. On that position, the Supreme Court further held that, the lower court was right to have concluded that Section 30 of the Evidence Act, 2011 allowed them to rely on the facts contained in the Statements made by the deceased accused in Exhibits 21 and 36, which were properly admitted by the trial court. On the issue of whether the lower court was right to have decided the conviction of the Appellant on the basis of circumstantial evidence, the Supreme Court relied on CHIMA IJIOFFOR v THE STATE (2001) 5 SCM 107, where it was held that in criminal cases, the possibility of proving the offence charged by the direct and positive testimony of an eye witness or by conclusive document is rare and where such testimony is not available the trial judge sitting as judge of facts and law is permitted to raise the presumption from the proof of some facts, the existence of another fact without further proof of that other fact.

On that note, the Court agreed with the holding of the Court of Appeal that: in the course of investigation from information in Exhibit 36, the headless body of the deceased with the head of penis cut off was found buried in the Hotel; the body was exhumed from the farm within the premises of the Hotel; one Leonard who was to take possession of the head was known to the Appellant, and that the trial Court who had the opportunity to observe the Appellant testifying in court, was right to have concluded that the conduct of the Appellant from the evidence, betrayed the behaviour of a person who knew why Ekeanyanwu was arrested and brought to the Hotel without being told, and lastly that the right inferences were drawn to come to the conclusion on the guilt of the Appellant, based on circumstantial evidence. On the defence of alibi raised by the Appellant, the Supreme Court relied on MAIKUDI ALIYU v THE STATE (2007) All FWLR (Pt.388) 1123 at 1141, to the effect that the Prosecution is duty bound to investigate the alibi set up to verify its truthfulness, and held that, though there was no burden on the accused person to prove his alibi, he was bound to give the lead and particulars of his where about at the earliest opportunity to lead the Prosecution in their investigation of the alibi. In this case, the Receptionist (PW10) at Otokoto hotel had testified and stated under cross-examination that the Appellant was in the Hotel on the day the deceased was murdered, and stayed for a while before he left. With the uncontradicted evidence of PW10 about the events on the day of the incident and the Appellant’s admission of his whereabout, the defence of alibi was held to be an afterthought and thus, unreliable. Finding no proof of miscarriage of justice, the Apex Court held that the Appellant was rightly convicted upon circumstantial evidence adduced by the Prosecution and thus, affirmed his conviction and sentence to death by hanging. Appeal Dismissed.

Representation:
Professor A. Amuda Kannike, SAN with A. O. Yusuf Esq. and Dr. E. E. Jumbo for the Appellant
M.O. Nlemedim Esq. – Attorney-General, Imo State with Osita Chukwu Emeka Esq., SSC for the Respondent

Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR)