When Circumstantial Evidence Is Enough To Convict (IV)

That the accused persons were the people who last saw the deceased alive -because he was in their company.

As far as the appellant herein is concerned, I have no doubt in my mind that the facts above fall gravely short of the standard required to secure a conviction against him based on circumstantial evidence. The only facts concerning the appellant therein are that the 1st accused is his master and that he lives in his house; that he was one of those who last saw the deceased alive. The fact of the accused having already assembled the 2

nd and 3rd accused persons in his house on 20/9/96 as evidence of conspiracy does not arise as the 1st accused is the master of the appellant and the appellant lives in the house of the 1 st accused.

This explains convincingly his presence in the scene of the alleged crime and punctures any inference of a preconceived plan or conspiracy to commit the offence.”

On Presumption raised by failure to call a vital witness – Where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that it witness been called his evidence would have been unfavourable to the party who called him. (P. 256, paras. F-G) Per IYIZOBA,J.C.A.at pages 256-257, paras. G-C: How else does one explain the fact that so many persons were mentioned in the

statement of the accused persons who were said to be eye witnesses to the event, yet the prosecution failed to call any of the witnesses but called witnesses who were not present and could only give hearsay evidence that the deceased was killed by the accused persons. The only rational explanation is that if those witnesses had been called, their evidence would have been unfavourable to the prosecution. I am of the view therefore that the failure of the prosecution to call any of the persons mentioned by the accused persons in their statements as having been there at the scene when the deceased rushed in and shot himself left the issue of suicide open. As far as the issue remains open the circumstantial evidence adduced by the prosecution is not so mathematically accurate as to point to only one irresistible conclusion – that the deceased was killed by the 1st accused in collaboration with the appellant and the 3

rd accused.”

On Effect of ‘failure of prosecution to call vital witnesses –

Although in criminal cases, the prosecution has the discretion to call whichever witness it considers necessary to prove the offence charged, its failure to call very vital witnesses whose evidence may determine the case one way or the other will be fatal to the case. In the instant case, the failure by the prosecution to call vital witnesses who were present at the time of the shooting was fatal to its case. (Pp. 255, paras. E-F; 256, para. E) On Whether suspicion can ground conviction – Suspicion no matter how strong can never found a conviction in the absence of cogent and compelling evidence. (P. 252, para. F) Nigerian Cases Referred to in the Judgment:

Adeniji v. State

(2001) 13 NWLR (Pt. 730) 375 Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686 Aiguoreghian v. State (2004) 3 NWLR (Pt.860) 367 Akinmoju v. State (1995) 7 NWLR (Pt. 406) 204 ALonge v. I.G.P. (1959) SCNLR 516

19. – Buba v. State

(1994) 7 NWLR (Pt. 355) 195 Eze v. State (1976) 1 SC 125 20. Idowu v. State (2000) 12 NWLR (Pt. 680) 48 Igho v. State (1978) 3 SC 87 Ikomi v. State (1986) 3 NWLR (Pt. 28) 340 Mohammed v. State (2007) 11 NWLR (Pt.l045) 303

Mohammed v. State

(2007) 13 NWLR (Pt. 1050) 186

Morka v State

(1998) 2 NWLR (Pt. 537) 294 22. Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 Okogbue v. C.OP. (1965) NMLR 232

23. Onah v. State

(1985) 3 NWLR (Pt. 12) 236

24. R. v. Abengowe

(1936) 3 WACA 85

25. R. v. Nwokocha

(1949) 12 WAC A 453

R. v. OLedima

(1940) 6 WACA 202 State v. Edobor (1975) 9 – 11 SC 69

Uche v. State

(1973) All NLR 826 Umeh v. State (1973) 2 SC 9 Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999, S. 36(5)

Criminal Code, Cap. 30, Laws of Ondo State of Nigeria, 1978 (now Cap. 37, Vol. 1, Revised Laws of Ondo State), Ss. 319 and 324 28. Evidence Act, Ss. 138(1) and 149(d) Appeal:

This was an appeal against the judgment of the High Court which convicted and sentenced the appellant to death by hanging for the offences of conspiracy and murder. The Court of Appeal, in aunanimous decision, allowed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Akure Names of Justices that sat on the appeal: Kudirat B Motonmori Olatokunbo Kekere-Ekun, J.C.A. (Presided), Chin we Eugenia Iyizoba, J.C.A. (Read the Leading Judgment), Moore A. A. Adumein, J.C.A.

Appeal No.: CA/B/144C212007 Date of Judgment: Thursday, l Z” July, 2012 Names of Counsel: Olakunle Agbebi, Esq. – for the Appellant

A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun Esq., D.D.C.L. and Alaba Ogunyemi, Esq., S.L.D.) – for the Respondent

High Court:

Name of the Court:

High Court of Ondo State, Akure Name of the Judge: Fagbe, J. Counsel: Olakunle Agbebi, Esq. – for the Appellant

A.O. Adeyemi-Tuki [Mrs.], D.P.P. (with her, Taiwo Olubodun clai Esq., D.D.C.L. and Alaba Ogunyemi, Esq., S.L.D.) – for the Respondent IYIZOBA, J .C.A. (Delivering the Leading Judgment): The appellant Aderemi Omotayo was arraigned as 2

nd accused before

Fagbe, 1. of the High Court of Ondo State sitting at Akure on the 29

th day of July, 2003 along with two other co-accused persons, Feyisayo Olatise 1st accused and Fredrick Akintade 3rd accused on a two-count charge of conspiracy and murder contrary to Section H Exhi 324 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of J is Ondo State of Nigeria, 1978 (now Cap. 37, Volume 1 Revised Laws of Ondo State).

The prosecution’s case is that the deceased, Joseph Olatunde was on the 20

th day of September 1996 shot and killed in the sitting room of the 1st accused at his residence at Ubi Camp Idanre by the 1st accused who conspired with the appellant herein and the 3″ 1st accused

to carry out the unlawful act. It was alleged that the 1

st accused had deposited two bags of Indian hemp in the farm of the deceased. The deceased found the bags in his farm and raised an alarm which led to their disposal. The lst accused on two separate occasions 12th and 9th of September, 1996 sought to see the deceased without success.

On the 20

th of September, the I” accused sent his wife to the house of the deceased to fetch him. The wife of the deceased who at the

trial testified as PWI in her evidence said that she followed her husband to the house of the I” accused carrying her baby. There,

they met the 1

st accused, the appellant herein, the 3rd accused and others. PWI testified that the 1st accused confronted the deceased

as to why he raised alarm over the Indian hemp he (the deceased) found in his farm. At this stage PWI said that her baby started crying and the 1

st accused advised her to take her baby home for attention. She then left. While she was away attending to her baby, she heard the sound of a gun shot and returned to the house of the accused to find her husband lying dead in the sitting room of the 1st accused. She claimed that she saw a gun later identified as belonging to the 1 st accused on top of a table in the sitting room.

The three accused in their defence told a different story. They claimed that the 1 st accused and the deceased were engaged in an argument over missing cocoa beans belonging to the 1

5t accused which the 1st accused alleged were stolen by the deceased. In the scuffle that followed, a crowd gathered. The deceased then walked into the house of the 1st accused and what followed was the sound of a gun shot. When the I” accused rushed to see what happened, he found the doors locked from within. When the people around reeped from the window of the house, they found the deceased lying down, having shot himself. The Police later broke into the

house to gain access to the corpse of the deceased. The appellant had made three statements to the Police: Exhibit I made on 21/9/96;

Exhibit J made on 21/9/96 and exhibit Dl made on 24/9/96. Exhibit J is in line with the oral evidence of the appellant in court and the

case of the defence as set out above. Exhibits I and D 1 differed as to the cause of the dispute between the I” accused and the deceased.