THE STATE
3PLR/1976/20 (SC)
OTHER CITATIONS
(1976) 9-10 S.C. (REPRINT) 158
FATAI-WILLIAMS, J.S.C.
REPRESENTATION
Mr. F. O. Akinrele – for Appellant
Mr. P. I. Amaizu, Principal State Counsel (Anambra State) – for Respondent
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Murder – Proof – Circumstantial evidence – Duty on prosecution to prove case beyond reasonable doubt – When burden is deemed not discharged
CRIMINAL LAW AND PROCEDURE:- Evidence Alibi of accused person – Duty of prosecution to dislodge same – Lies – Whether mere telling of lies by an accused person is not evidence of the commission of any offence let alone murder
CHILDREN AND WOMEN LAW: Women and Security/Crime – Murder – Women in Business – Aged farmer found macheted to death and left in muddy waters – Women and Justice Administration – Poor Police work and prosecutorial abilities in murder trials – Effect – Women and Witchcraft – Aged mother accused of ‘killing’ daughter-in-law by means of witchcraft – How treated
RELIGION/WITCHCRAFT AND LAW:- Elderly woman suspected of killing family member with witchcraft – Murder of – How treated
FOOD/AGRICULTURE LAW:- Security of women on their farms – Implication for justice administration
TAXATION AND LAW:- Tax drive among rural communities – Arrest as a tool for tax enforcement – Implication for justice administration and law enforcement
PRACTICE AND PROCEDURE:- Appeal – Judgment of a trial court based on circumstantial evidence – When appellate court may set same aside on ground that it is not safe to allow the conviction to stand being based on unreliable testimony
MAIN JUDGEMENT
FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court):
In the High Court of the former East Central State sitting at Onitsha, the accused was convicted on 26th July, 1975, of the murder of one Nwagwu Oguejiofor and sentenced to death.
The only eyewitness account as to how the deceased died was given by one Joseph Udemadu (2nd P/W), a wood-cutter. This witness had earlier made a written statement to the police on 16th September, 1974, that is, about five weeks after the death of the deceased on 11th August, 1974. The statement reads:-
“I am a wood cutter, I was staying at Anoku near Forest Reserve Aguleri Otu. On a certain day in the afternoon I was paddling my canoe on the Anambra river when I heard a cry which stated: I am killed, Obalum has killed me. I saw a river road which went into a farm owned by one Okechukwu, as I was going further, I saw the said Obalum coming out from that direction, I went and/asked him, Obalum, who was crying? He said that he did not know, he was also on his own canoe, as Obalum passed me, I went to the direction where the cry came from and I saw an aged woman lying faced down on the shallow of a water. She had a matchet cut behind her head. I went back and to Okechukwu’s house, I did not see Okechukwu but his son who told me that he did not know where his father Okechukwu went. I went back and repeated to Okechukwu’s house in the evening, there I saw his wife called Agbanma who told me that Okechukwu had carried the dead body of his mother to Otuocha. I did not tell the woman anything, I went back. When Okechukwu returned from Otuocha, I told him how I saw Obalum. Okechukwu told me that Obalum was a thief, and that it was through police questioning, Obalum was shown to police and police invited him for questioning and on the way to the police station, the man Obalum ran away. I then told Okechukwu that since the man Obalum had run, I would volunteer myself to follow police to search for him. I did follow police to search for Obalum. Police paid for my transport to and from Mid-Western State of Nigeria. There and then Obalum was arrested at a place called Ebu and was brought to Otuocha police station. I know Obalum before because he lived where I used to stay when I went for cutting firewood. I did not tell any other person about the incident only Okechukwu. It was Okechukwu who told the rest of his brothers about the incident. In the evening of that day, I went to Obalum’s house at Anoku but I did not see anybody in his house.”
As against this written statement, the evidence of the 2nd prosecution witness on oath about the same incident reads as follows:-
“On 11th day of August, 1974, as I was in my canoe going to where I was cutting wood about morning time, I heard wailing voice shouting ‘Obalum egbu-muo’ – three times meaning that Obalum has killed me and I recognised the wailing voice and it was the voice of the deceased woman. On hearing the wailing voice, I turned back my canoe and made towards the direction of the wailing voice and there I saw accused in his own canoe coming from the direction of the wailing voice. I then asked the accused who was shouting out his name that he has killed that person. I asked accused if he heard the wailing voice and he said that I should not ask him and that he heard nothing. I then left accused and paddled my canoe to the actual spot of the wailing voice. On reaching there, I saw the body of a woman at about ten yards away from my canoe. On coming closer, I recognised that the body on muddy water was that of the deceased who herself was the owner of that farm. She was then already dead. I discovered that she was lying in pool of blood and blood was gushing from her neck. She was lying face downwards. I got frightened and ran away to the house of P.W 1. P.W 1 was not at home but I saw his wife, who told me that P.W 1. had gone to Oma-Agu and I went away. I told her that I would return the next day. The next day when I went back I did not see P.W 1., but the wife told me that P.W. 1’s mother had been killed and her dead body taken to [Aguleri]. About a week afterwards I saw P.W.1. and I told him what I discovered about death of his mother. After narrating to P.W.1. what I learnt he told me that he saw and caught accused at Otuocha but he later escaped. I assisted in looking for the accused. I was with two police constables and we searched for him in many places and we later got accused at Ebu in the Mid-West. There, police arrested accused. It took us about a week to find accused. From where I first saw accused in his canoe coming from where I saw body of deceased woman would be about 50 yards.” (Italics ours).
In his answer to questions asked under cross-examination, the 2nd P/W admitted that he did not go back to the accused after seeing the dead body of the woman and confront him with what he had seen because he was afraid that the accused might attack him. He also admitted that he did not report the incident to the person in charge of their camp in the Forest Reserve. He said he went to look for the 1st P/W the son of the deceased but as he did not show up he left. He said he reported what he saw to the 1st P/W in his house later. He admitted making a written statement to the police about the incident but when he [was] asked about the date of this statement he replied:-
“But I don’t know the date of statement. I made my statement to police before I went with them in search of accused.”
This is obviously a lie because the statement was made on 16th September, 1974, that is, after the accused had been arrested and remanded in custody. Okechukwu Oguejiofor (1st P/W) also testified for the prosecution about how he knew of his mother’s death. This is what he said. On the day of the incident, that is, 11th August, 1974, he went to Ona Agwu. On his return, he discovered that his mother was not at home. As a result of what he was told on enquiry about her whereabouts, he returned to Ona Agwu to look for her. Later, he saw her in his farm at Ubi on their boundary with the Forest Reserve, lying on the ground in muddy water, face downwards. On wading into the muddy water to where she was, he discovered that she had two matchet cuts which nearly severed the neck from the rest of her body. She was dead. He raised an alarm as he was returning to their village. Later, he reported the incident to the Forest Guard in the Forest Reserve who advised him to remove the body to their village and to report the death to the chairman of their Community Council which he did. The Forest Guard also informed him that he would not allow any of his workers in the Forest Reserve to leave their place of work in the forest. But as the Forest Guard was not called by the prosecution, there was no evidence to show whether the accused was one of his workers or not. Later, a report of the incident was made to the police at the Otuocha Police Station. When cross-examined about what he saw at the place where he found his mother, the 1st P/W replied:-
“I discovered signs of struggle and I also saw yams uprooted and scattered around the scene. When I raised alarm crying, no one came in response to my alarm. On getting home, I reported the incident to wailing members of my family. No one gave me any hint on that day of incident about who killed my mother.”
Later, on information received, presumably in the course of their investigation and, pursuant to an earlier report made by the 1st P/W at the Otuocha Police Station on 13th August, 1974, some police-men went to look for the accused. After some fruitless efforts, he was arrested by P.C. Moses Eruari (4th P/W) at Ebu in the Bendel State on 15th September, 1974. He was brought back to Otuocha on the following day and charged with the murder of the deceased. As we have pointed out earlier, it was after this that the 2nd P/W made his written statement to the police.
Sergeant Edmund Okosa (3rd P/W), one of the policemen, who went to look for the accused, following the report of 13th August, 1974, said he apprehended the accused earlier in the course of their investigation, (although he did not state the date on which he was apprehended) but that the accused escaped from them and ran into the bush. When he was cross-examined about this, he explained what actually happened as follows:-
“On the day we went to camp only accused was absent and I collected many camp settlers to police station at Otuocha in the course of my investigation. Nobody mentioned name of accused to me in connection with death of deceased. I don’t remember seeing P.W 2 at Enugu-Otu camp on the day I visited there … I was in mufti when I saw accused with some people listening to radio. Accused cooperated with me at that time. When I first arrested accused I did not tell him what offence he committed.”
In his defence on oath, the accused denied killing the deceased. He also denied knowing the 2nd P/W and said that he only got to know him for the first time when he came to where he was working at Ebu with some policemen. He denied seeing the 2nd P/W on the day of the incident along the stream close to where the deceased was attacked. He told the court that when the wife of another son of the deceased died some time before the incident, there was speculation in the village that it was the deceased who killed her by means of witchcraft. In answer to questions asked about his escape when the police first tried to arrest him, he replied:-
‘The police P.W.3. who arrested me first at Amaze was in mufti and I thought that he was a tax agent. P.W.3. did not tell me why he was arresting me; and as that time was a period of tax drive at Ameze, I suspected P.W.3 to be a tax agent. P.W.3. did not take me to the Police Station but on the way with him, and mistaking him to be a tax agent, I took to my heels and escaped from P.W.3. I ran straight to Ebu. At Ebu, I saw Joseph Udemadu P.W.2 with the Police. There, police told me that I was wanted for killing one woman called Nwangu Oguejiofor: that was the first time I heard of the death of the deceased.”
In his reserved judgment, the learned trial judge, before convicting the accused, found as follows:-
“Upon consideration of all the evidence before me, I am satisfied that the deceased was murdered on the 11th of August, 1974 at her son’s farm, (P.W.1’s farm). I am also satisfied that P.W.2 spoke the truth when he said that he heard the wailing alarm of a woman on his way in his canoe to his place of work on the day of the incident. I believe P.W.2. that he actually recognised the voice of the deceased shouting that “Obalum Egbumuo” meaning the accused had killed her. I believe P.W.2 that on his way to the direction of the alarm, he met the accused who on being confronted by P. W. 2 denied hearing his name being mentioned in any alarm. I accept the evidence of P.W.2 that he saw the body of the deceased with injuries on her neck so soon after seeing the accused emerging from the direction of the alarm, the voice of which he recognised as that of the deceased woman. I again believe the evidence of P.W.3 that the accused escaped from their custody after his arrest at Ama Eze and that he dashed into the bush and made for Ebu in the Mid-West, where he was subsequently arrested and charged with the murder of the deceased woman.”
From the above, it is clear that the conviction of the accused for the murder of the deceased was based on circumstantial evidence provided entirely by the 2nd P/W. This appeal against the conviction turns, therefore, on the reliability of that testimony. In other words, is the testimony of the 2nd P/W cogent, convincing or reliable enough to sustain the conviction of the accused/appellant for murder or is it tainted with uncertainty and suspicion?
We agree with learned counsel for the appellant that there are many matters which needed explanation but which were neither explained at all nor properly explained in the case put forward by the prosecution. These matters are crucial, particularly as the accused was not the only one who had the opportunity of attacking the deceased on the day in question. The star witness for the prosecution (2nd P/W) had the same opportunity and so also was 1st P/W, the son of the deceased. The prosecution, in order to leave no doubt as to the guilt of the accused, should have excluded all possibilities of the commission of the crime by any of these two persons or by any other person or persons in the Forest Reserve. This we think they have failed to do for the following reasons.
Firstly, let us take the evidence as to the shouts of the deceased. We agree with learned counsel for the accused that it was not part of the case for the prosecution that the cry was a dying declaration which could therefore be regarded as corroboration of the testimony of P.W.2. Moreover, although for the purpose of the prosecution’s case, the words used by the deceased, if proved to have been used, may be regarded as a true reflection of what was happening to her and was therefore part of the res gestae (See R. v. Ratten (1972) A. C. 378 at pp. 389 – 390), the weight and importance to be attached to it seemed to have been grossly diminished by the question –
“Obalum, who was crying?”
which the 2nd P/W said in his written statement he asked the accused after he had heard the cry of the deceased. It seems to us, even if indeed the 2nd P/W heard the deceased shout that the accused had killed her, that that is hardly the type of innocuous question which he 2nd PW would have put to the person mentioned as her attacker. We are, therefore, not surprised that in his evidence on oath, he embellished the question as follows:-
“I then asked the accused who was shouting out his name that he has killed that person. I asked accused if he heard the wailing voice and he said that I should not ask him and that he heard nothing.”
Secondly, the 2nd P/W said in his statement (Ex. 1) that he heard the cry of the deceased in the afternoon but in his evidence on oath he said it was “about morning time”.
Thirdly, the 2nd P/W admitted that he neither told the 1st P/W’s son nor his wife about what had happened to the deceased when he went to look for the 1st P/W on the day of the incident. He also said that it was about a week later that he mentioned what he had seen to the 1st P/W. The question is, why did he have to wait that long when he could have gone to the police with this vital information? Finally, if the 2nd P/W did assist the police, as he said in his evidence, in looking for the accused, why was his written statement (Ex. 1) containing the vital information about the death of the deceased not taken until 16th September, 1974, after the accused has been remanded in custody? Why did he not disclose what he knew either to the person in charge of their camp in the Forest Reserve or to the Police at the earliest opportunity? He did not even consider it necessary to inform any of those living in the village. The only person he told was the 1st P/W and even then, he did not speak to him until about a week after the incident. His silence in these circumstances seems to us ominous to say the least. It certainly puts his credibility in doubt.
Admittedly, the accused ran away when he was first apprehended by the police but he explained why he did so. There is no evidence on record to show that what he said about the tax drive at the material time was false. Moreover, there is evidence that the policeman (3rd P/W) who apprehended him was in civilian clothes and that he did not tell the accused what offence he was wanted for. In any case, as we have pointed out on many occasions, mere telling of lies by an accused person is not evidence of the commission of any offence let alone murder. The prosecution must still prove their case beyond reasonable doubt.
Be that as it may, it seems to us that the learned trial Judge did not advert his mind to all these suspicious aspects of the story of the 2nd P/W. We are sure that if he had done so, he would have seen the prosecution’s case in another light. For this reason, we do not think it is safe to allow the conviction of the accused based, as it were, on circumstantial evidence predicated by the obviously unreliable testimony of the 2nd P/W, to stand.
The appeal is therefore allowed and the conviction and sentence passed on the accused/appellant are set aside. He is acquitted and discharged.
Appeal allowed.