ENWEREMADU V THE STATE

ENWEREMADU V THE STATE


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 2ND JUNE, 2017


Appeal No: CA/PH/573C/2007

CITATION:

Before Their Lordships:

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

NZE IKEMENWA ENWEREMADU
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Findings of Facts – How findings of facts of a trial Court should not be interfered with by the appellate Court
Attitude of appellate Court to findings of facts made by trial Court

Findings of facts of a trial Court when not perverse are sacred and should not be lightly disturbed at by an appellate Court. See Bamgboye & Ors v Olarewaju (1991) 5 S.C.N.J. 88, Haav v Kundu (1997) 5 NWLR Pt. 505. In fact, case Law on this principle of law is quite trite. (DISSENTING) Per AWOTOYE, JCA. read in context

B. COURT
2. Appellate Court – What must be considered by an appellate Court to entertain an appeal
What must an appellate court decide when considering an appeal before it

As an appellate Court the relevant point to consider in an appeal is whether or not the decision of the trial Court is right, inspite of the reasons given for the said decision.
1) Obasi & Anor V Onwuka & Ors (1987) NWLR (PT 61) 364.
2) Amaechi & Inec & Ors (2008) 5 NWLR (Pt. 1080) 227. (DISSENTING) Per AWOTOYE, JCA. read in context

C. CRIMINAL LAW AND PROCEDURE
3. Offence of Murder – Ingredients of the offence of murder; Ways of proving the offence of murder

Counsel, on both sides, had stated the legal ingredients of the offence of murder, that there must be evidence of death (of the deceased); that the death of the deceased resulted from the act/omission of the accused person(s), and that the said act/omission of the accused person, intended the death of the deceased, or to cause him grievous bodily harm; that is, the accused did the act/omission, intentionally, with the knowledge that death or grievous bodily harm would be its probable consequence. See Omotola Vs The State (2009) 7 NWLR (pt.1139) 148; (2009) LPELR – 26635 SC; Ndukwe Vs The State (2009) 37 NSCQR 425 at 459 – 460; Nwachukwu Vs The State (2002) 3 FWLR (pt.123) 321; Obasi Vs The State (2014) LPELR – 24013 (CA); Sule Vs State (2009) 19 NWLR (pt.1169) 33; Akpa Vs State (2008) 14 NWLR (pt.1106) 72; Musa Vs The State (2014) 1 LPELR – 22192 (CA).
It is also the law, that offence of murder can be established by any one of the following 3 ways:
(1) By positive, direct evidence of an eye witness of the murder. See Chukwunyere Vs The State (2014) LPELR – 23779 (CA); Galadima Vs The State (2013) LPELR – 20402
(2) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the Accused person, as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999) 2 NWLR (pt.589) 82; Chiokwe Vs The State (2005) NWLR (pt.918) 424; Obasi Vs The State (2014) LPELR – 24013 (CA);
(3) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. of the Federation (2012) (2009) LRCN 70 at 96; (2012) 32 WRN 1; (2012) 9 NWLR (pt.1306) 419; Obasi Vs The State (Supra). Per MBABA, JCA. read in context

4. Conviction – The burden placed on the prosecution in a murder case and how suspicion cannot ground conviction
Whether suspicion can found or lead to a conviction

In the case of Emesonye Vs State (2016) LPELR – 40550 CA, this Court held:

“To prove a charge of murder… the burden is always on the prosecution, to establish the guilt of the Accused person, beyond reasonable doubt. That calls for a lot of caution on the part of the Court, and imposes a duty of thoroughness on the part of the prosecution, to ensure that evidence is brought to show, unmistakably, that the Accused person’s act or omission caused the death of the deceased, and that act or omission of the accused person was with the requisite intention to cause the death of the deceased, or cause him grievous bodily harm… And suspicion or speculation, no matter how strong, cannot lie a conviction, and is not even a basis for trial of the suspect. The authorities abound that one cannot even be charged to Court on the basis of mere suspicion. See Adeniji Vs State (2001) 12 NWLR (pt.730) 375; Theophilus Vs State (1996) 1 NWLR (pt.423) 139; Onafowokan Vs State (1987) 7 SCNJ 1; Okoro Vs State (1988) 12 SCNJ 191; Blessing Vs FRN (2012) LPELR – 9835 (CA); (2013) 12 WRN 36; Garba Vs State (2011) 14 NWLR (pt.1266) 98.” Per MBABA, JCA. read in context

5. Criminal Liability – How failure to report the death of a citizen to the Police is not an offence
Whether failure to report the sudden death of a citizen to the Police is an offence

Appellant appears to have been subjected to all this trauma, because of the suspicious way they handled the death of the deceased, and did not report it to the Police, but rather took away the corpse to a place near a school. Of course, I have condemned that cowardly act of the Appellant, which was callous, but I do not think failure to report the sudden death of a citizen to the Police, is an offence, and should draw an inference, that those in whose presence the deceased died are answerable for his death, without more, if they failed to report it to the Police. See Ogunlana & Ors Vs The State (1995) 5 NWLR (pt.395) 266; (1995) LPELR – 2341 (SC). Per MBABA, JCA. read in context

D. EVIDENCE
6. Circumstantial Evidence – What would make the Court invoke circumstantial evidence
Conditions that must be met before a conviction can be sustained by circumstantial evidence

To found a conviction on circumstantial evidence, the law requires the Court to be extremely cautious. In the case State Vs Okpala (2012) LPELR – 7845 (SC), it was held that:

“For circumstantial evidence to be invoked, it must always be narrowly examined as evidence of this kind may be fabricated to cast suspicion on another. Other co-existing circumstances, that could weaken the inference to be drawn, must be considered.”

The rule is that: “to sustain a conviction in a criminal trial, circumstantial evidence must be cogent, complete and unequivocal.” See The State Vs Okpala (supra); R Vs Tailor & Ors (1928) 21 CAR 21; Nweke Vs The State (2001) 4 NWLR (pt.704) 588 at 603. Per MBABA, JCA. read in context

7. Burden of Proof – The provision of Section 140 of the Evidence Act 2011
Whether an accused has a duty to adduce evidence in support of facts that are strictly within his knowledge

Also by virtue of Section 140 of the Evidence Act 2011:

“When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” (DISSENTING) Per AWOTOYE, JCA. read in context

8. Doctrine of Last Seen – The presumption of the law on the doctrine of last seen
The doctrine of last seen and the extent of its application

Again the law presumes that the person seen last with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. See The State v Nwakerendu & Ors (1973) ECSLR ST II 757, Gabriel V The State (1989) 12 SCNJ. 33, Nwaeze V The State (1996) 2 SCNJ. 47 at 61-62, Igabele V The State (2006) 6 NWLR (PT 975) 100. (DISSENTING) Per AWOTOYE, JCA. read in context

E. JUDGMENT AND ORDER
9. Perverse Decision – Conditions that will make the findings of a Court perverse
Instances where the decision of court would be regarded as perverse

I am of the respectful view that the findings of facts of the lower Court and the consequent conviction of the accused are not perverse and should not be disturbed. See Kamalu & Ors V Umunna & Ors (1997) 5 NWLR PT 505; Alao v State (2015) LPELR – S.C 237 – 2011.
According to Adekeye JSC in Hamaza V Peter Kure (2010) 10 NWLR (Pt 1063) 630.

“A finding of a Court is perverse where

(a) It is speculative and not based on any evidence or
(b) The Court took into account matters which it ought not to have taken into account or
(c) The Court shut its eyes to the obvious.” (DISSENTING) Per AWOTOYE, JCA. read in context


LEAD JUDGMENT DELIVERED BY MBABA, JCA


This is an appeal against the judgment of Imo State High Court in Charge No. HME/2C/98, delivered on 18th May, 2007 by Hon. Justice P.O. Nnadi (as he then was
– now Chief Judge of Imo State), wherein the learned trial Judge convicted and sentenced the Appellant to death, together with his two sons, who were charged along with him, for the murder of one Rose Omenuko on 9/2/1998. Earlier, his daughter Cecilia Enweremadu who was the 4th Accused person, had died in custody.

Appellant and his said children were arraigned on a murder charge, as follows (Appellant being the 1st Accused):

“Statement of Offence

Murder contrary to Section 319(1) of the Criminal Code –Cap 30 Vol. 11 Laws of Eastern Nigeria, 1963, applicable to Imo State of Nigeria.

Particulars of Offence

Nze Ikemenanwe Enweremadu, Boniface Enweremadu, Philip Enweremadu and Cecilia Enweremadu on 8th February, 1998, at Umuagu Obowo in the Mbano/Etiti Judicial Division murdered Rose Omenuko.”

A brief facts of the case showed that the deceased was a widow and mistress to the 1st Accused (Appellant); that their relationship continued and blossomed until sometime before 8/2/98, when the 2nd and 3rd Accused persons, in company of their sister (4th Accused who died in custody in the course of trial), went to the matrimonial home of the deceased and left warning for her (Rose Omenuko), through the PW2 (Cyrine Ejike Omenuko), that she (Rose) should not come to their father’s compound again and they threatened to kill or injure her, if she dared flout the warning, to visit the Appellant, again. In reaction, some members of the lady’s family also went to the house of Appellant and warned him to stop visiting the lady and to put an end to their love affair. On 8/2/98 the lady (now deceased) prepared some food and took same to Appellant in his house at Umuagu Obowo. She did not return to her matrimonial home, but her corpse was seen the next morning, lying in a bush, near a primary school, at a place about 71/2 miles to Umuahia. The Police were contacted and they came and removed the corpse to the mortuary. The Police commenced investigation, arrested the Appellant, 2nd, 3rd and 4th Accused persons and obtained statements from them.

Appellant also made statement to the Police, admitting the Deceased visited him on the said date; that after greeting his children, told him that her sister was sick; he sympathized with her and later left her in the house and went out; Appellant later changed his statement to say that after greeting him, the lady started coughing and vomiting; that when he decided to take her out for treatment, she slumped and died; that with the aid of 2nd and 3rd Accused persons, they carried the corpse and deposited it near the primary school.

The prosecution called six witnesses at the trial. Appellant and the other accused, defended themselves on oath, and called no witness. In the judgment, the trial Court said:

“…It appears that the deceased was assaulted during her visit to the house of the accused persons by the accused persons and she died shortly thereafter. The accused persons then waited until it was dark (between 10-11pm) and then took the corpse of the deceased in the cover of darkness to the place where they dumped it so that nobody would trace the death of the deceased to the accused. To show how callous and insensitive the accused persons were, they went to the stream, after dumping the body of the deceased and took their bath that midnight, went to their house and slept until the next morning. The accused persons made no attempt to contact the relations of the deceased or even report the incident to the Police, but waited until the Police recovered the body and came after them. I therefore have no hesitation in coming to the one and only irresistible conclusion that the pieces of circumstantial evidence proved by the prosecution have prove (sic) the guilty (sic) of each of the accused in the commission of the offence of murder, beyond reasonable doubt and each accused is, consequently, found guilty as charged and accordingly convicted for murder…” (See Page 142 of the Records).

They were all sentenced to death by hanging (except the 4th Accused, who had earlier died in custody, before the judgment). That is the judgment Appellant appealed against, as per the Notice of Appeal on Pages 173 to 175 of the Records of Appeal. Appellant filed Amended Notice of Appeal on 27/1/14, which was deemed duly filed on 28/1/14. It disclosed six grounds of Appeal. Appellant filed his brief of arguments on 27/1/14, which was also deemed duly filed on 28/1/2014. He donated three Issues for the determination of the Appeal, as follows:

(1) Whether the prosecution proved the case that the Appellant, with other accused persons, killed the deceased. (Grounds 1, 2 and 5).

(2) Whether there was sufficient circumstantial evidence to support the conviction of the Appellant? (Grounds 3 and 4).

(3) Whether the learned trial Judge was right in importing and relying on extraneous matter to find the Appellant guilty of the offence of murder. (Ground 5).

The Respondent filed its brief on 16/4/15, which was deemed duly filed on 27/10/16. In it the Respondent distilled only two issues for the determination of the appeal, as follows:

(1) Whether the prosecution proved the case beyond reasonable doubt against Appellant (Grounds 1 and 2).

(2) Whether the learned trial Judge did not properly evaluate the evidence before him before finding the Appellant guilty. (Grounds 3, 4, 5 and 6).

When the appeal was heard on 6/4/17, Appellant’s Counsel, L.C. Ugorji Esq, (who settled Appellant’s brief), on Issue 1, relied on the case of Omotola & Ors Vs State (2009) 8 ACLR (pt.29) 144 on the essential ingredients of murder, which must be proved to sustain the charge, namely:

(1) That the deceased died.
(2) That the death resulted from the acts of the accused, and
(3) That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. He also relied on the case of Patrick Oforlete Vs The State 3 NSCQR 243 on the need to prove a charge beyond reasonable doubt.

Counsel submitted that it was true that the deceased died, but that the burden of establishing that the act of the Accused (including Appellant) caused the death of the deceased was not discharged; he said that the trial Court was wrong to sentence the Appellant to death; that apart from the evidence of Appellant, that the deceased took ill and he decided to take her for treatment when she slumped, there was no other evidence as to how the deceased died; he argued that the trial Judge did not impute any motive on the Appellant, but, curiously, convicted him, based on motive imputed on the other accused persons.

Counsel relied on the evidence of the PW4 (I.P.O) who said:

“At the scene, I saw foam coming out of the mouth of the deceased as she lay face upwards, but there was no open injury.” (Page 73 of the Records).

Counsel said the PW4 admitted he did not even reflect the evidence of foaming in the mouth in his report, and added that PW4 also admitted he did not notice any violence on the body of the deceased; Counsel also said that PW3, in the medical report, did not also make any allusion to the cause of the foaming in the mouth in his report and evidence in Court; that that left a lacuna in the cause of death, as the foam rather corroborated the evidence of the Appellant as to what may have caused the death of the deceased. Counsel said the evidence by PW3 was contradictory, on the issue of injury on the body of the deceased; he said that the PW3 was an unregistered medical practitioner.

Counsel found fault with the assumption by the trial Court, when it said “it appears that the deceased was assaulted during the visit to the house of the accused persons…” He said that was a mere conjecture and supposition, showing that the conclusion by the Court was not borne out of evidence before the Court; that base on the above conjecturing, the trial Court imputed motive on the 2nd and 3rd Accused, which motive cannot apply to Appellant, who was the deceased lover. He relied on the
case of State Vs Okpala (2012) 49 NSCQR (pt.1) 378 at 400, to say that, because there was no evidence of PW3 being a registered medical practitioner, his evidence lacked probative value, and so the trial Court was wrong to place much reliance on the same.

Counsel relied on the case ofLori Vs State (1998)1 ACLR (pt.)267 at 279 on the need for circumstantial evidence to establish, unequivocally; that the act of the accused caused the death of the deceased that the medical evidence does not open the gate for speculation as to other possible cause of the death.

On Issue 2, whether there was sufficient circumstantial evidence to support the conviction of the Appellant, Appellant answered in the negative. He said that for circumstantial evidence to count, it must be cogent and pointing, irresistibly and unequivocally and compellingly, at the accused person. He relied on the State Vs Ogbubunjo 5 NSCQR

Counsel queried the conclusion of the trial Court on pages 137 – 138 of the Records, when the Court said:

“Though Counsel for the accused persons tried to attack the findings of the doctor as to the cause of death… there was no contrary evidence as to the cause of death produced by the accused persons or the defence.”

Counsel submitted that the accused persons had no duty to establish any cause of death, as the duty resides in the prosecution, to eliminate other possible or probable cause of death, like poisoning, as in this case, which was neither investigated nor eliminated. He relied on State Vs Okpala (supra) at 396.

Counsel urged us to consider the fact that Appellant and the deceased were lovers and that Appellant had lavished gifts on the lady; that there was no motive established to suggest intent of Appellant to kill his lover (deceased); that it was only on the purported warning by 2nd to 4th Accused, that the trial Court imputed the motive to kill the lady (deceased). Counsel wondered whether the motive imputed on the 2nd and 3rd Accused persons, through the alleged warning, can apply to the Appellant, who was the lover of the lady (deceased)! He argued that the allegation and conviction did not align with the surrounding circumstances, given the fact of the relationship between the Appellant and the deceased. He relied on the book by
Hon. Justice C.A. Oputa. “The Law and the Twin Pillars of Justice” pages 39 and 44.

On Issue 3, whether the trial Court was right in importing and relying on extraneous matter to find Appellant guilty, Counsel answered in the negative. He submitted that cases are decided on evidence before the Court; that anything outside this, is a journey into the realm of conjectures and suppositions, which cannot form the basis for any conviction. He argued that the trial Judge found Appellant and the other accused guilty of murder, based on alleged injuries found on the body of the deceased; that there was no evidence that Appellant (and others) assaulted the deceased; that the only chain used by the trial Court to link Appellant to the alleged injuries on the deceased was the alleged warning by 2nd and 3rd Accused persons, that the deceased should stop visiting the Appellant. There was no evidence Appellant assaulted the deceased or had any intention or motive to assault her or cause her any grievous bodily harm. Counsel blamed the trial Judge for importing extraneous reasons to found motive for the alleged crime, when he held:

“I also find as a fact that the inability of the 3rd Accused to complete the final ceremony of initiation into manhood which is expected of any fully grown adult in Obowo… incensed and angered the 2nd and 3rd and their sister… as they attributed the failure to complete the initiation to the lavish spending of their father (the 1st accused) on the deceased. Therefore, this Court is not in doubt that the prosecutor has proved evidence of motive on the part of 2nd and 3rd accused to inflict grievous bodily harm on the deceased.” (See pages 139 – 140 of the Records).

Counsel said that was speculation and did not even relate to the Appellant!

He urged us to resolve the Issues for Appellant and allow the appeal.

Responding, Counsel for the Respondent C.N. Akowundu Esq, (Director Estate and Trust, MOJ. Imo State), on Issue one, said the ingredients of offence of murder had been established. He referred us to Onah Vs The State (1985) 3 NWLR (pt.12) 236; Ogba Vs The State (1992) 2 NWLR (pt.222) 164 on the ingredients of murder. He also referred us toIgabelle Vs The State (2006) ALL FWLR (pt.311) 1797, on the 3 main ways to establish commission of crime:

(i) By confessional statement of accused

(ii) By circumstantial evidence

(iii) By evidence of an eye witness.

Counsel said that, from the circumstances of the case and evidence of DW1, the death of the deceased resulted from the act of the Appellant and his co-accused. He relied on the evidence of PW2, who alleged the threat by 2nd – 4th Accused at the deceased, if she did not stop seeing the Appellant. Counsel added that the deceased died as a result of injuries, inflicted on her by Appellant and the other accused persons. He relied on Akpan Vs The State (2001) 15 NWLR (pt.745).

On the Issue of intention/motive, Counsel relied on the evidence of PW3 (medical doctor) to say that the injuries on the deceased could only have resulted from intentional acts of the Appellant and the 2nd and 3rd Accused; that the Doctor said the injuries were the immediate cause of her death; that the deceased died in the compound of the Appellant and the handling of the incident and the dead body by the Appellant and the other accused showed their guilty motive; that the rational and irresistible inference to be drawn was that Appellant and the other accused inflicted the injuries on the deceased. He relied on Nwaeze Vs The State (1996) 2 NWLR (pt.428) 1 at 19.

He added that the nature of injuries on the deceased and the weapon used could infer the motive to cause grievous bodily, harm on the deceased. He relied on Section 316(1) and (2) of the Criminal Procedure Law of Eastern Nigeria, and on the case of Bakare Vs The State (1987) 1 NWLR (pt.53) 579; Buje Vs The State (1991) 4 NWLR (pt.185) 287 at 300.

On Issue 2, Counsel urged us to hold that the trial Court properly evaluated the evidence before him and made proper findings on the guilt of the Appellant. He relied on Ndukwe Vs The State 37 NSCQR 425 at 494 – 495, on the evaluation of evidence. Counsel reminded us that we cannot interfere with the findings of the trial Court, except they are perverse (Akpan Vs The State (1992) 6 NWLR (pt.245) 43). He added that the findings of the trial Court were not perverse. Counsel also relied on the case of Nwaeze Vs The State (1996) 2 NWLR (pt.428) 1; Oladejo Vs The State (1987) 3 NWLR (pt.61) 419; Amusa Vs The State (1986) 3 NWLR (pt.30) 536, to state the legal principles, supporting the trial Court decision, that:

“Since the deceased was last seen alive with the accused persons in their house and the accused persons were the ones who took her corpse and dumped same at the place where it was found before the Police removed same, it behooves on the accused persons to account for the death of the deceased and since the accused persons have failed to offer any reasonable explanation as to the cause of the death of the deceased other than as found by the doctor (PW3) during post mortem examination, this Court is left with no other option but to apply the legal principles restated in the cases cited above and concluded that the injuries found on the deceased and which injuries were the cause of the death of the deceased were caused by the accused persons, who were the persons last seen with the deceased alive and who dumped her (deceased’s) corpse where Police recovered same.” (See pages 141 – 142 of the Records).

Counsel urged us to resolve the issues against the Appellant and dismiss the appeal, confirming the decision of the trial Court.

RESOLUTION OF ISSUES

I think the three issues donated by the Appellant for the determination of the appeal are in order, but they all relate to the evaluation of the evidence adduced at the trial, whether the trial Court properly scrutinized the circumstantial evidence in reaching its conclusion that Appellant and the other accused murdered the deceased, Rose Omenuko. The two Issues by the Respondent are on the same main issue. I shall therefore consider this appeal on the main issue:

Whether the trial Court was right in its evaluation of the circumstantial evidence to reach its decision, convicting and sentencing Appellant with other accused persons for the murder of Rose Omenuko?

Counsel, on both sides, had stated the legal ingredients of the offence of murder, that there must be evidence of death (of the deceased); that the death of the deceased resulted from the act/omission of the accused person(s), and that the said act/omission of the accused person, intended the death of the deceased, or to cause him grievous bodily harm; that is, the accused did the act/omission, intentionally, with the knowledge that death or grievous bodily harm would be its probable consequence. See Omotola Vs The State (2009) 7 NWLR (pt.1139) 148; (2009) LPELR – 26635 SC; Ndukwe Vs The State (2009) 37 NSCQR 425 at 459 – 460; Nwachukwu Vs The State (2002) 3 FWLR (pt.123) 321; Obasi Vs The State (2014) LPELR – 24013 (CA); Sule Vs State (2009) 19 NWLR (pt.1169) 33; Akpa Vs State (2008) 14 NWLR (pt.1106) 72; Musa Vs The State (2014) 1 LPELR – 22192 (CA).

It is also the law, that offence of murder can be established by any one of the following 3 ways:

(1) By positive, direct evidence of an eye witness of the murder. See Chukwunyere Vs The State (2014) LPELR – 23779 (CA); Galadima Vs The State (2013) LPELR – 20402

(2) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the Accused person, as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999) 2 NWLR (pt.589) 82; Chiokwe Vs The State (2005) NWLR (pt.918) 424; Obasi Vs The State (2014) LPELR – 24013 (CA);

(3) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. of the Federation (2012) (2009) LRCN 70 at 96; (2012) 32 WRN 1; (2012) 9 NWLR (pt.1306) 419; Obasi Vs The State (Supra)

This case comes, exclusively, under proof by circumstantial evidence, as there was no eye witness of the murder, and nobody has confessed to the act. But there were persons, present, at the time the deceased died, and Appellant was one of them, and his children 2nd, 3rd and 4th Accused persons, who were said to have threatened the Deceased before she died. Whereas, the 2nd to 4th Accused were said to have threatened the deceased (a widow who found love in Appellant), to stay away from Appellant, Appellant was presented as the object of the lady’s love, for whom she took the risk of the anger of the children of Appellant (2nd to 4th Accused), if she continued seeing their father (Appellant).

How come (Appellant), the very object of the deceased’s love, is accused, together (with his children) of killing the lady, who, on the fateful day of her demise, actually prepared food and took same to the Appellant in his house?

The PW2, Cyrine Ejike Omenuko (a co-wife of the deceased, as the two were married to the same husband) was the main source of the story of the love affair, between Appellant and the deceased, and of the threat made by 2nd Accused to 4th Accused to the deceased, if she failed to heed the warning to stop seeing their father. She said – in chief:

“I know Rose Omeunko who was my co-wife as we married the same husband. Rose is now late… I lived with (sic) same compound with late Rose Omenuko for about 20 years, before her death, and we lived happily… She was very healthy. The late Rose Omenuko and myself confided in each after (sic)… Late Rose Omenuko never complained of any ailment to me before her death… I am aware that late Rose Omenuko had love relationship with the 1st accused. Truelly (sic) Rose refused but 1st accused kept coming, until one day the 1st accused came with some drinks (palm wine). The 1st son of my husband was present when 1st Accused came and in the person (sic) of the relations, the 1st accused disclosed his intention to have Rose Omenuko as his mistress or lover. Late Rose Omenuko admitted and agreed to be the lover of the 1st Accused. Thereafter, the love relationship… started and blossomed. As the relationship continued… the children of the 1st accused came to the compound in the company of four other persons and asked me to warn late Rose not to come to their father’s compound, and threatened to kill or injure her, if she dared come to see their father, the 1st accused. The 2nd, 3rd and 4th Accused were among the children of 1st Accused that came to issue the warning to late Rose Omenuko. I tried to inquire from that what late Rose Omenuko did to them that warranted the warning visit, they said they had issued their warning and left the compound. The next day I went to Nze Raphael Diala and informed him of the report by the children of 1st Accused… I advised Nze Raphael Diala to go and inform the 1st Accused of the warning and threat… I also reported the warning and that (sic) to Nze William Amadikwa of Umuagu… I was really worried and scared by the seriousness with which the children of the 1st Accused… issued the warning and threat to the late Rose Omenuko. On Sunday 8/2/89 (sic) I got up and called on the late Rose to accompany me to church and she informed me she would take a relation of hers to the hospital and that I should go to church… Rose came back and informed me that she came back to make more food for her hospitalized relation. Rose Omenuko finished the food and gave to somebody who came to collect it. Then Rose took some food and went for the 1st Accused… I know the food was meant for the 1st Accused, whom she friendly called “Papa Cecilia” and had a special container for the food of the 1st Accused. After late Rose Omenuko left with the food, she never came back to the house. Initially, when Rose and the 1st Accused started their love after (sic) – Rose was visiting his house until the children of the 1st accused issued the warning and threat to Rose. Thereafter, the 1st accused was visiting regularly and… occasionally asked that food be brought to him by late Rose. When Rose Omenuko did not come back that night, I went to bed, the next morning at about 6.am. I heard people shouting and saying “who did this atrocity”… I…was informed that the body of Rose Omenuko was lying somewhere close to a school. I went to the school and saw the body of Rose Omenuko on the ground with a big Jerry cane (sic) by her side. I observed that Rose was wearing the blouse she wore that Sunday before she left the house, but the wrapper she wore as well as the head tie and slippers she wore when she left the house were not seen on her… I went to the house and brought another wrapper with which her nearly naked body was covered.” (Pages 51 to 52 of the Records).

Cross examined, PW2 said the love affair between 1st Accused and Rose was not unusual in their community, that it had lasted for about 3 years before Rose died she said it was not true that her (PW2) son once warned 1st Accused to desist from visiting Rose. She said 1st Accused and the deceased shared very good love relationship.

PW1, Onwunaraobi Ihekoronze, said Rose and 1st Accused were friends, when she was alive. He said:

“On 8/2/98 at about 10.am. (sic) I was in my house when the 1st Accused came to me and asked me to follow him to his house. I told the first accused I had just come back from work but I still followed him to his house. The 1st accused asked me to assist him remove the dead body of his lady friend, by name Rose Omenuko, to a place called 71/2 junction. I told the 1st accused that I could not assist him in such a request. At the house of the 1st accused I saw Samson Agoha, who advised that I should assist the 1st accused to remove the body of his lover, but I refused. Apart from Samson Agoha, there were two other home men whom I could not identify because there was no light in the house of the 1st accused. I refused to assist the first accused remove the body of Rose Omenuko, because the husband of Rose was my master and maternal relation… 1st accused ask me to say how much I would charge to assist in removing the body of Rose Omenuko, but I told him I would not partake in any such affair. I then left to my house.”

Under cross examination, PW1 said:

”It is true in my statement I said it was Ernest that offered me money to assist 1st Accused remove the body of Rose Omenuko… I did not see the 2nd and 3rd Accused at the house of the 1st Accused. I know Accused very well… I did not see any of the accused persons do anything to the late Rose Omenuko. I do not know the circumstances surrounding the death of Rose Omenuko… it is true I stayed away after the incidence of the night. I stayed away or went into hiding in order not to be seen as a stumbling block to the settlement of the case between 1st accused and the relation of the deceased.” (See pages 49 – 51 of the Records). (Underlining mine)

Of course, those pieces of evidence from the prosecution failed to state how the deceased died and who killed her. Even the PW1, who was called to the spot to see the dead body of Rose, could not help as he said he did not even ask how Rose died, he said what was upper most, was how to remove the dead body from the house of 1st Accused.

Though the handling of the tragic incident, especially the handling of the corpse of the late Rose, left a lot to be desired, and rather raised suspicion and worry, I cannot smell any fowl play in the context of Appellant killing or playing any sinister role in the death of his lover, Rose, especially, as PW1, who said he was opposed to the relationship between 1st accused and the deceased, did not say anything, to suggest possible implication of Appellant in the death of the deceased. PW1 even said he did not see any of the Accused do anything to late Rose Omenuko. That included 2nd and 3rd Accused (the prime suspects, who were said to have issued threats to Rose, to stop seeing their father, Appellant). PW1 had also met Samson Agoha and Ernest Eneremadu, who appeared to have been there, shortly after Rose died, but no evidence came from them, to suggest that Rose was murdered, and by the Appellant, her lover!

Appellant, in his evidence on pages 93 to 96, said:

The deceased came to me on that date at about 7pm to tell me about what happened to the sister. The deceased was narrating the story about her sister when she started to cough. She was coughing vigorously and I asked her when the cough started. She (deceased) told me that she had no cough when she started coming to my house but was surprised to see this cough. I asked her what she ate. She said she ate only the food she prepared and sent some of it to that her sister who lived not far from my home. She told me she collected some water in a plastic container and drank some of it. The cough could not allow her fully feel (sic) her story the deceased stood up and started to vomit in front of my corridor. She was vomiting vigorously and I went into the house to look for some money. That day was a Sunday. I became confused and could not locate the money. I was taking the deceased to a place called “seven and half” which was a walking distance from my house. As we were approaching the main road near 71/2 (seven and half) junction, the deceased stooped down and started to vomit again. I tried to urge her to try and continue as we were already getting to the road junction but she said I should allow her rest a bit. She held her chest and sarted to call the name of her son “Chyenucheya” and by this time she was lying on the ground. After a while I touched her to urge her to stand up for us to continue the journey only to discover that she has lying lifeless in the ground. I was shocked and started to shout “chineke”, “chineke’ meaning ‘my God’. ‘My God’ but there was nobody around there. I quickly ran back to my house to see if my brother was around. On getting to my house, I did not see that my brother. I enquired his whereabout but nobody could tell me. I ran to the house of another brother of ours called Stampson Okonkoro but did not find him. I ran back to where the deceased was lying on the ground and pulled her to see if she merely fainted. I ran to the mission to see if could locate that my elder brother, I ran to initially but did not find him. I did not see anybody on the road that night. This was happening around p (sic) pm. I also ran to the house of one Onwunaraogu and saw him. He followed me to the frontage of my house where I asked him to wait for me while I went to fetch my elder brother. I quickly ran to the stream and saw my elder brother. I told him what happened and he followed me to the compound. As we got to the compound. We saw that Onwunaraogu had left for his house as he said he could not do what I called him to do. I had earlier inform Onwunaraogu what happened to the deceased and requested him to accompany me to the house of the deceased to inform them of what happened to the deceased. I also went to the house of Chief Anderson Abanulo but did not see him. My senior brother called Ernest Enweremadu ordered me to go and show him where the deceased was. As I was taking my senior brother to the place where the deceased was, I saw my children Philip and Boniface (the 2nd and 3rd accused persons) coming back from the direction of the main road. The 2nd and 3rd accused persons followed us to where the deceased was lying on the ground. As we were there we discovered that soldier ants had invaded where the deceased was lying. I asked them to assist me carry the body of the deceased across the road where there are no soldier ants and they did. There after I asked them to escort me to the house of the deceased but they refused and said their refusal was because the relations of the deceased had earlier warned me not to come to their compond. I went out to look for people who will accompany me to the house of the deceased and while I was doing this, I did not know that Onwunaraogu had gone to inform the relations of the deceased who went and saw the deceased and invited the Police. The Police took the body of the deceased and later came and arrested me.

The evidence of PW3 (Medical doctor) who conducted post mortem examination on the body of the deceased, was:

“I saw an elderly deceased female apparently well-nourished with abrassies (sic) at the right hypocondie Negion (sic) of the abdomen. The section of skull showed an intra cremian heamorrege (sic) above glid katter – outer causing (sic) of the brain, tissue. The brain was not swolen. A section of the chest revealed no abnomalitic (sic) but within the abdomen the middle lobse of the right lever (sic) was contused and lacerated with blood clots found within the peretnume. From lacarated lever (sic) and intracranan haemornage (sic) secondary (sic) to assault with blunt with blunt object, from my opinion, the injuries found on the body of the deceased were caused with blunt object… It is possible for the type of injuries examined to flow from an assault with a stick, stone or fish. By abrassion I main (sic) a localised peeling off of the skin with disclouration. The injuries I saw on the deceased, caused the death of the deceased. The injured were the immediate result of the death of Rose Omenuko.

On examination of the chest region, there was nothing abnormal with it and nothing there could lead to death of the deceased. (Pages 59 and 60 of the Records).

Under cross examination, PW3 said:

”It is possible that a fall on the ground could cause abrassion of the skin. It is possible the laceration of liver could be caused by a bad fall that is somebody falling on something. It is true that a well-nourished woman could suggest a healthy woman. It is possible for death to have resulted from the injuries or there was bleeding. I said that the injury was the immediate cause of death, before (sic) the injuries with bleeding could lead to shock and death.” (Pages 60 – 61 of the Records).

PW3 also admitted that he carried out the autopsy examination in a private hospital – Erico Hospital and said

“It is proper to carry out post mortem examination at Erico Hospital before (sic) such examination is carried out at approved mortuary. They mortuary is approved by the government…”

PW3, further said he did not know who deposited the body in the mortuary; that the body was still dressed in the clothes with which it was brought to the mortuary; that he examined the corpse, after 10 days of deposit in the mortuary. He could not say what was the condition of the corpse at the time it was deposited in the mortuary; that the body had been embalmed before he conducted the examination and so had been interfered with and touched. He did not take any history of the deceased because there was no previous information that the deceased had been assaulted before the examination.

PW4 was the I.P.O. He testified on how the report of the corpse near a school was reported, and they (Police) went there and removed the corpse. They took the body to the Erico mortuary. They arrested the Accused persons, following a report that 1st Accused (Appellant), was the man friend of the deceased, and the children of Appellant had threatened the woman to steer clear their father. PW4 said Appellant admitted the deceased was his friend and that she died in his house. PW4 said he confronted the 2nd and 3rd Accused about the threat on Rose, but they denied issuing the threats.

Under cross examination, PW4 said:

“I deposited the body to the mortuary after removing it from the scene where it was found lying on the ground. At the scene he said (sic) foam coming out of the mouth of the deceased as she lay face upwards, but there was no open injury. I have been with the Police force for 19 years. I did not reflect the foaming I saw on the deceased mouth in my report. I did not observe any of voilence (sic) on the deceased as she died elsewhere and was deposited at the scene. The 1st accused took me to the point where he claimed that the deceased died, and through the track road near his house, where he said the deceased slumped. There were foot marks at and around the point where the deceased slumped. The foot marks did not indicate to me of a voilent (sic) nature as the deceased did not die at that point but inside the house the 1st Accused. It is true that I did not reflect in my report that the deceased died in the house of the 1st Accused. (See pages 73 and 74 of the Records). (Underlining mine)

Of course, there is no evidence from the prosecution linking Appellant to the cause of the death of the deceased, and, apart from the evidence of the PW3, who examined the body of the deceased after about 10 days in the mortuary, there is no other witness(es) (who saw the body before it was deposited in the mortuary), who alleged any injury or abrasion on the body of the deceased, or suggested any violence on the body of the lady.

PW6 also corroborated the report by the PW4 and re-echoed what 1st Accused said.

Appellant was a relevant witness as to what happened and how his lover (deceased) died; that the late Rose visited him on the fateful day and after receiving her, he started to have discussion with her, and suddenly she started coughing and vomiting and later slumped and died. (See page 83 of the Records, PW6’s account).

PW6 (Police Officer who took over investigation of the case) had said on page 86 – 87 of the Records:
“I discovered that on the date of the incident, the deceased went to visit the sister and from these (sic), she visited the 1st accused person and it was in the 1st accused person’s house she was received by the 4th accused into their palour. The 4th accused left the deceased in the palour with the 1st, 2nd and 3rd accused persons. I tried to find out initially what happened to the deceased. The 1st, 2nd and 3rd Accused denied having any knowledge about the deceased. Upon further interrogation the 1st Accused accepted knowing the deceased and admitted that they were friends for 13 years prior to the incident. The 1st accused admitted that he received the deceased in his palour on that date and as he was discussing with the deceased, she (deceased) stated (sic) complaining (sic) and vomiting. He decided to kike (sic) her out to buy some medicine. That immediately she came out from the house, the deceased rested on the ground and died on the spot. I then inquired to know what the 1st accused did when he discovered that the deceased was dead. He said he did not report to the Police. At the conclusion of investigation, I found that the 1st accused, with the help of the other accused (2nd and 3rd) carried the body of the deceased, secretly, out of their compound, through a bush track to the place where they abandoned the deceased body near a primary school at Amanze Obowo…”

There is nothing to show that the Police investigated that information by Appellant, that the deceased, suddenly, started coughing and vomiting and later slumped and died, and/or that the Police found it to be false. It does not even appear to accord with natural course of events and reason for Appellant to kill his lover, who had prepared food and brought to him, when there was nothing to suggest any quarrel between them. Even if there was threat by 2nd to 4th Accused against the deceased, warning her to keep away from their father (Appellant), I do not think, on the fateful day, any violence is established, which could have turned Appellant to an aggressor, against Rose, to kill her. Rather Appellant’s account, that the lady started coughing and vomiting and later slumped, tends to agree with PW4’s evidence, of foaming in the mouth, and PW3’s account of possible injury resulting from a fall!

As earlier stated, the way he (Appellant) tried to dispose of the tragic event, secretly and foolishly, by abandoning or dumping the corpse at a school junction, is condemnable. But that, in my view, does not accord with the behavior of a cruel murderer, when considering how he called people to the scene.

(Of course, Appellant had said the deceased slumped and died at the path leading the junction, as they were trying to reach the junction, for help).

Rather, Appellant’s behaviour accords with that of a confused and timid individual, who sought a way to ward off trouble/danger from his home, and so reported the happening to people, to come and help him! I do not think, if Appellant killed his lover (Deceased), he would have had the guts to call people (including PW1, who had disapproved of his love relationship with the deceased), to come to help him take away the corpse, or to accompany, him to the deceased’s family. I also think, the PW1 would have been quick to implicate Appellant, if there was any fowl play in the death of the deceased, or if Appellant did anything to cause her death.

From the entire evidence of the prosecution, especially from PW1, PW4 and PW6, no case was made out, in my opinion, to even warrant calling on the Appellant to defend himself. But surprisingly, the trial Court held him guilty for murder, founding its decision on speculation, when it said:

“It appears that the deceased was assaulted during her visit to the house of the accused persons by the accused persons, and she died shortly thereafter…” Page 142 of the Records.

The use of the words “It appears…” was enough to show that the trial Court based its decision on supposition and speculation, as there was no evidence to support that supposition. In my view, that was, an extremely, dangerous gamble in a Criminal trial, which attracted capital punishment!

The trial Court, in my opinion, carried the speculation beyond limits when it held:

“I also find as a fact that the inability of the 3rd accused to complete the final ceremony of initiation into manhood which is expected of any fully grown adult in Obowo,… incensed and angered the 2nd and 3rd and their sister… as they attributed the failure to complete the initiation ceremony to the lavish spending of their father (the 1st Accused) on the deceased. Therefore this Court is not in doubt that the prosecutor has proved evidence of motive on the part of 2nd and 3rd accused to inflict grievous bodily harm on the deceased.”

To found a conviction on circumstantial evidence, the law requires the Court to be extremely cautious. In the case State Vs Okpala (2012) LPELR – 7845 (SC), it was held that:

“For circumstantial evidence to be invoked, it must always be narrowly examined as evidence of this kind may be fabricated to cast suspicion on another. Other co-existing circumstances, that could weaken the inference to be drawn, must be considered.”

The rule is that: “to sustain a conviction in a criminal trial, circumstantial evidence must be cogent, complete and unequivocal.” See The State Vs Okpala (supra); R Vs Tailor & Ors (1928) 21 CAR 21; Nweke Vs The State (2001) 4 NWLR (pt.704) 588 at 603.

In the case of Emesonye Vs State (2016) LPELR – 40550 CA, this Court held:

“To prove a charge of murder… the burden is always on the prosecution, to establish the guilt of the Accused person, beyond reasonable doubt. That calls for a lot of caution on the part of the Court, and imposes a duty of thoroughness on the part of the prosecution, to ensure that evidence is brought to show, unmistakably, that the Accused person’s act or omission caused the death of the deceased, and that act or omission of the accused person was with the requisite intention to cause the death of the deceased, or cause him grievous bodily harm… And suspicion or speculation, no matter how strong, cannot lie a conviction, and is not even a basis for trial of the suspect. The authorities abound that one cannot even be charged to Court on the basis of mere suspicion. See Adeniji Vs State (2001) 12 NWLR (pt.730) 375; Theophilus Vs State (1996) 1 NWLR (pt.423) 139; Onafowokan Vs State (1987) 7 SCNJ 1; Okoro Vs State (1988) 12 SCNJ 191; Blessing Vs FRN (2012) LPELR – 9835 (CA); (2013) 12 WRN 36; Garba Vs State (2011) 14 NWLR (pt.1266) 98.”

Appellant appears to have been subjected to all this trauma, because of the suspicious way they handled the death of the deceased, and did not report it to the Police, but rather took away the corpse to a place near a school. Of course, I have condemned that cowardly act of the Appellant, which was callous, but I do not think failure to report the sudden death of a citizen to the Police, is an offence, and should draw an inference, that those in whose presence the deceased died are answerable for his death, without more, if they failed to report it to the Police. See Ogunlana & Ors Vs The State (1995) 5 NWLR (pt.395) 266; (1995) LPELR – 2341 (SC).

I, therefore, resolve the issue for the Appellant and hold that the appeal is meritorious, and accordingly allowed.

The Judgment of the trial Court, convicting and sentencing the Appellant is hereby set aside, and in its place, a verdict of not guilty is entered for Appellant and he is hereby discharged and acquitted on the charge.

LOKULO-SODIPE, JCA

I have had the privilege of reading in draft the lead judgment prepared by my learned brother ITA. G. MBABA, JCA. I am in complete agreement with the reasoning of his lordship and conclusion therein.

Accordingly, I too hold that the appeal is meritorious and allow same. I also abide by the consequential orders contained in the leading judgment.

AWOTOYE, JCA (DISSENTING)

I had the rare opportunity of reading the draft of the Judgment just delivered by my learned brother ITA MBABA J.C.A.

Findings of facts of a trial Court when not perverse are sacred and should not be lightly disturbed at by an appellate Court. See Bamgboye & Ors v Olarewaju (1991) 5 S.C.N.J. 88, Haav v Kundu (1997) 5 NWLR PT 505. In fact, case Law on this principle of law is quite trite.

Also by virtue of Section 140 of the Evidence Act 2011:

“When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

Again the law presumes that the person seen last with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. See The State V Nwakerendu & Ors (1973) ECSLR ST II 757, Gabriel V The State (19 9) 12 SCNJ. 33, Nwaeze V The State (1996) 2 SCNJ. 47 at 61-62, Igabele V The State (2006) 6 NWLR (PT 975) 100.

It is in the above light that I shall view this appeal.

The findings of the learned trial Judge, in the judgment delivered on 8/5/2007 are among things –

(1) The deceased Rose Omenuko died between the hours of 6-7 P.M on 8/2/98 visited the house of the 1st accused.
(2) That the deceased was hale and hearty when she visited the house of the 1st accused.
(3) That the deceased died during her visit to the house of the 1st accused.
(4) That the 1st , 2nd and 3rd accused carried the body of the deceased between 9 and 10 P.M. of 8/2/98 to the side of a tarred road near a primary school.
(5) That Dr. Osuji Jonathan Nnawuihe who carried out the post mortem examination found the cause of death of the deceased to be severe internal hemorrhage from lacerated liver and intracranial hemorrhage from assault with blunt object.

The above findings of fact are clearly not perverse as they are supported by evidence on record.

It is for the accused who was last seen with the deceived to explain how and what led to the death of the deceased.

The explanation of the deceased was that the woman (the deceased) suddenly started coughing and vomiting and subsequently died. This evidence was not supported by the findings of the medical doctor who conducted post mortem on the body of the deceased. From his own showing the 1st accused and his children proceeded to further dispose of the body of the deceased without seeking any medical help. The question is even if his evidence is believed who confirmed to him that the woman was dead? Could the woman not have been unconscious?

My lords, I see no reason on record to doubt the evidence of the medical doctor who conducted post mortem on the deceased. I find the evidence of the 1st accused on the cause of death of the deceased incredible.

As an appellate Court the relevant point to consider in an appeal is whether or not the decision of the trial Court is right, inspite of the reasons given for the said decision.

1) Obasi & Anor V Onwuka & Ors (1987) NWLR (PT 61) 364.
2) Amaechi & Inec & Ors (2008) 5 NWLR (PT 1080) 227.

I am of the respectful view that the findings of facts of the lower Court and the consequent conviction of the accused are not perverse and should not be disturbed. See Kamalu & Ors V Umunna & Ors (1997) 5 NWLR Pt. 505; Alao v State (2015) LPELR – S.C 237 – 2011.

According to Adekeye JSC in Hamaza V Peter Kure (2010) 10 NWLR (PT 1063) 630.

“A finding of a Court is perverse where

(a) It is speculative and not based on any evidence or
(b) The Court took into account matters which it ought not to have taken into account or
(c) The Court shut its eyes to the obvious”

In my respectful view this is not the case in this appeal. I therefore in the circumstance affirm the judgment conviction and sentence of the Appellant by the lower Court in its decision delivered on 18/5/2007.

This appeal lacks merit. It is accordingly dismissed.