Implied Contract: Meaning, Form(VII)

ADEREMI OMOTAYO
v.
THE STATE
COURT OF APPEAL
(AKURE DIVISION)
CA/BI I 44C2/2007
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
(Presided)
CHINWE EUGENIA IYIZOBA, J.C.A. (Read the Leading Judgment)
MOORE A. A. ADUMEIN, J .C.A.
THURSDAY, 12TH JULY, 2012
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
Meaning and nature oj.
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
When conviction can be based thereon.
CRIMINAL LAW AND PROCEDURE – Circumstantial evidence –
When prosecution can rely on.
CRIMINAL LAW AND PROCEDURE – Conviction – When can be based on circumstantial evidence.
CRIMINAL LAW AND PROCEDURE – Offences – Murder – Ingredients of – What prosecution must prove to establish.
CRIMINAL LAW AND PROCEDURE – Proof of crime – Burden of proof – On whom lies – Standard of proof required – Where there is doubt about guilt of accused – Need to resolve in favour of accused.
CRIMINAL LAW AND PROCEDURE – Suspicion – Whether can ground conviction.
CRIMINAL LAW AND PROCEDURE – Witnesses – Vital witness –
Failure of prosecution to call – Effect.
EVIDENCE – Circumstantial evidence – Meaning and nature oj.
EVIDENCE – Circumstantial evidence – When conviction can be based on.
EVIDENCE – Circumstantial evidence – When prosecution can rely on.
EVIDENCE – Presumptions – Witnesses – Vital witness – Where not called by party to an action – Presumption raised thereby.
EVIDENCE – Proof- Burden ofp ro of of guilt of accused – On whom lies – Whether shifts – How discharged .
EVIDENCE – Proof of crime – Burden of proof – On whom lies – Standard of proof required – Where there is doubt about guilt of accused – Need to resolve in favour of accused.
EVIDENCE – Suspicion – Whether can ground conviction.
EVIDENCE – Witnesses – Vital witness – Failure of prosecution to call – Effect.
WORDS AND PHRASES – “Circumstantial evidence” – Meaning oj.
Issue:
Whether the trial court
was right in holding that the prosecution proved a case of murder against the appellant beyond reasonable doubt in the light of the evidence adduced.
Facts:
The appellant and two other persons were arraigned for the offences of conspiracy and murder contrary to sections 324 and 319 of the Criminal Code, Cap. 30, Volume II, Laws of Ondo State of Nigeria, 1978 (now Cap. 37 Volume I, Revised Laws of Ondo State) at the High Court of Ondo State sitting in Akure.
The prosecution’s case was that the deceased, one Joseph Olatunde, was on 20th day of September 1996 shot and killed in the sitting room of the residence of the I” accused at Ubi Camp,
Idanre by the 1st accused who conspired with the appellant and the 3rd accused to carry out the unlawful act.
The wife of the deceased who had hitherto been at the scene of the quarrel between the deceased and the appellant and the other accused persons, testified as PW 1. In her testimony, she said she left the scene of the argument to attend to her baby who was crying; that she heard a gun shot not quite long after she left the scene, and that upon her return to the scene, she met her husband dead with a gun on the table.
On its part, the defence case was that the 1 st accused and the deceased were arguing over missing cocoa beans which the I” accused alleged were stolen by the deceased; that a crowd later
gathered, and the deceased walked into the house of the 1 st accused, locked the door from behind and shot himself with the gun; and that the police had to break into the house to gain access to the corpse of the deceased.
The appellant made three statements to the police. The statements were admitted as exhibits I, J and Dl. Exhibit J is in line with the oral evidence of the appellant and the case of the defence.
Exhibits I and Dl differed as to the cause of dispute between the 1st  accused and the deceased. Both exhibits confirmed the case of the prosecution that the dispute arose over Indian hemp deposited in
the farm of the deceased by the I” accused for which the deceased raised an alarm, but maintained that the deceased shot himself in the living room of the 1 st accused.
As there was no direct eye witness account of the shooting, the trial court relied on circumstantial evidence on the ground that the appellant was present at the scene of the shooting and thereby convicted and sentenced the appellant for the offences of conspiracy
and murder as charged.
Aggrieved, the appellant appealed to the Court of Appeal.
1.On Ingredients of offence of murder –
To secure a conviction for murder, the prosecution must prove:
(a) that the deceased died;
(b) that the death of the deceased was a result of the act or omission of the accused, and
(c) that the act of the accused was intentional knowing that death or grievous bodily harm
would be the probable consequence of the act. (P.248,paras.C-D)
2. On whom lies burden of proof of crime and standard of proof required –
The presumption in section 36(5) of the Constitution of the Federal Republic of Nigeria, that an accused is innocent until proven guilty places a very heavy burden on the prosecution. The prosecution must not only prove the guilt of the accused, the proof must be beyond reasonable doubt as stipulated by section 138(1) of the Evidence Act. The burden rests throughout on the prosecution and does not shift. There must be no doubt in the mind of any person reading the facts of the case that the accused is indeed guilty of the offence charged. Where there is doubt or where the prosecution’s case is shaky, the accused would be entitled to have the benefit of such doubt resolved in his favour. [Alonge v. I.G.P. (1959) SCNLR 516; Okogbue v. C.O.P. (1965) NMLR 232; Umeh v. State (1973) 2 SC 9; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686; Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 referred to.] (Pp. 247-248, paras. H-B)
3.    On whom lies burden of proof of guilt of accused and whether shifts The burden of proving the guilt of accused persons remains throughout on the prosecution and not shift. This includes the burden of leading evidence to disprove any defence set up by the accused or likely to arise in the case. In the instant case, the prosecution did not discharge the onus of proof beyond reasonable doubt that the appellant and his co-accused killed the deceased because it did not lead evidence to eliminate the possibility that the deceased may have committed suicide. [Idowu v. State (2000) 12 NWLR (Pt. 680) 48; Alonge v. I.G.P. (1959) SCNLR 516; R. v. Abengowe (1936) 3 WACA
85; R. v. Oledima 6 WACA 202 referred to.] (P. 257, paras. C-E)
4. On Meaning and nature of circumstantial evidence Circumstantial evidence is evidence of surrounding . circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. In the instant case, the evidence led by the five witnesses called by the prosecution was simply inadequate to discharge the burden on the prosecution to prove the case beyond reasonable doubt. (P. 252, paras. G-H)
5 On When prosecution can rely on circumstantial evidence – Where there is no direct eyewitness evidence as to the commission of a crime, such as murder, the prosecution may rely on circumstantial evidence to prove its case. [Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303; Adeniji v. State (2001) 13 NWLR (Pt. 730) 375; [komi v. State (1986) 3 NWLR (Pt. 28) 340 referred to.] (Pp. 258-259, paras. H-A)
6. On When conviction can be based on circumstantial evidence – For a conviction to be based on circumstantial evidence, the circumstantial evidence must point to only one rational conclusion namely that the offence had been committed and that it was committed by the accused. In other words the circumstantial evidence must point unequivocally and irresistibly to the fact that the offence was committed by the accused person. [Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 referred to.] (P. 249, paras. D-E)
7. On When conviction can be based on circumstantial  evidence –
In order to draw the inference of an accused person’s guilt from circumstantial evidence, there must not be any other co-existing circumstances which would weaken or destroy the inference. That fact must be such that they cannot be accounted for on any other rational hypothesis, other than the guilt of the accused. [State v. Edobor (1975) 9-11 SC 69; Eze v. State (1976) 1 SC 125; Mohammed v. State (2007) 13 NWLR (Pt. 1050) 186 referred to.] (P.
249, paras. E-F) Per IYIZOBA,J.C.A. at pages 249-250, paras. G-G:
“The facts which the lower court deemed circumstantial evidence sufficient to convict the appellant and his co-accused are as follows:
1.That the three accused persons and the deceased are all dwellers of Ubi camp in Idanre.
2. That the 1 st accused is the master of the 2nd accused and the two of them live in the same house while the 3rd accused is a friend of the I” accused. The deceased was also a friend of the I” accused.
3. That the deceased discovered some bags of Indian hemp in his cocoa farm and raised an alarm. After this the 1 st accused started to look for the deceased.
4. That on 20/9/96, the 1 st accused succeeded in getting the deceased when he invited the deceased to his house. The pi accused had already assembled the 2nd and 3rd accused and one Ojo still at large in his house.
5.    That the 1st accused confronted the deceased with the Indian hemp issue and demanded to know what had happened to it.