⦿ CASE SUMMARY OF:
Adankwor Etumionu v. Attorney-General Of Delta State (1994) – CA
by PipAr Chima
⦿ LITE HOLDING
There is no proof beyond reasonable doubt, where there are contradictions, inconsistencies and discrepancies in the evidence of prosecution witnesses as in this case.
Proof beyond reasonable doubt
Contradiction in witnesses
Attorney-general Of Delta State
(1994) JELR 40497 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
ATINUKE OMOBONIKE IGE, J.C.A
* FOR THE APPELLANT
* FOR THE RESPONDENT
On 29/1/88 there was a quarrel between the appellant and the deceased whom she often referred to as her grandmother. The deceased made a report of this quarrel to the Police who arrested the appellant and other relations in their compound. Later the people arrested were released with a warning by the Police that they should go home and live in peace.
There was another quarrel between the appellant and the deceased on 5/2/88. Both quarrels were witnessed by the P.W.3 a relation of both the appellant and the deceased. When the deceased returned from her church on the evening of 5/2/88 she could not find the key to her room hence she had to use her duplicate key to open her door – the only entrance to her apartment in their compound. P.W.3 was the last to see off the deceased into her room on the night of 5/2/88.
In the morning of 6/2/88 P.W.3 Agnes Osubor went to see the deceased in her room when the latter didn’t make her usual morning rounds of greeting and to her chagrin she found the deceased stone dead standing erect on the ground with a rope on her neck tied to the bamboo ceiling of the house. P.W.3 raised an alarm and people in the compound came round except the appellant and some of her close relations.
The appellant and her senior brother Obiajunu Etumionu were then charged for the murder of the deceased. The learned trial Judge in a considered ruling discharged the brother Obiajunu and also in a considered judgment convicted the appellant for the murder of Emily Oriaka and sentenced her to death on 28/5/92.
This is an appeal against the judgment of Justice S.M. Edah of Agbor High Court delivered on 26/5/92 whereby the appellant was convicted and sentenced to death for the murder of Emily Oriaka.
Charge for murder.
1. Whether it could be said that the ingredients of the offence of murder have been made out on the face of contrarious testimonies of prosecution witnesses, some of which amounted to hearsay?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. From the star witness account of the event of 5/2/88 there is nothing to suggest that the appellant used any rope or stick during the quarrel. The witness first said the deceased returned from the church before quarrelling with the appellant. In another breath, she said the deceased had finished quarrelling with the accused before she left for church service. The sum of total of the events of 29/1/88 and 5/2/88 are insufficient to connect the appellant with the killing of the deceased who was found hanging inside her room on 6/2/88 and who the doctor said died of respiratory failure. The offence of murder is such a serious offence which needs proof beyond all reasonable doubt.
ii. Rather the learned trial Judge based his conviction of the appellant on a very weak case of suspicion arising from circumstantial evidence. The learned trial Judge made so many conjectures in his findings of facts which border upon speculations. He really embarked upon a voyage of discovery; drawing on his imagination en route, and speculating as to what might have taken place – where there was no evidence on record as basis for his discoveries.
iii. For example he said among his findings of facts:
That the post mortem examination showed that the deceased was strangled to death with human hands – whereas there was no such evidence given by the doctor or any other witness. The doctor after enumerating the bruises and injuries on the body of the deceased gave the cause of death as due to respiratory failure due to pressures in the area of the neck, and jaws. It was his opinion that the injuries could not have been self inflicted. Nobody gave evidence of strangulation with human hands. The human hands were introduced into the case by the learned trial Judge. Even then he failed to associate or connect the hands of the appellant with the “human hands”.
The trial Judge also held that there were signs of struggle on the deceased’s bed before she died when nobody gave this type of evidence.
Another fact discovered on the voyage of the trial Judge was that after the deceased was killed, a rope was put round the neck of the deceased and then tied to the bamboo ceiling. This finding of fact was nowhere supported or revealed in the whole evidence of all the P.W.s. There is no evidence to show when the deceased was killed and whether or nor she died by hanging. The trial Judge has tried to suggest that death occurred before the rope was put round the neck of the deceased to depict death by hanging.
It is not part of the duty of a Judge to speculate upon what might have happened and substitute his own supposition for the evidence of witnesses on oath before him.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Onubogu and Anor v. The State (1974) 9 S.C. 1, 20: the Supreme Court opined that where in a criminal case, one witness called by the prosecution’ contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that a witness was hostile, before they can ask the court to reject the testimony of one witness in preference for the evidence of the discredited witness. It is not competent for the prosecution to discredit one and accredit the other.
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The standard of proof required in a murder case as in all criminal cases is proof beyond reasonable doubt. The onus of proof is on the prosecution and not on the defence. It is after the prosecution has produced necessary evidence to establish its case that the burden shifts unto the defence if he has any contradicting evidence to call his own witness to establish such evidence. – OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)
Suspicion no matter how strong or how grave can never take the place of legal proof. – OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)
For the prosecution to succeed in a charge of murder, it must prove the following ingredients. 1. That the death of the deceased was a result of the voluntary act of the accused; 2. That the accused had an intent to cause the death or cause grievious bodily harm to the deceased; 3. That the death of the deceased was a direct result of the act of accused to the exclusion of all probable causes. – OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)
Circumstantial evidence usually is contrasted with direct evidence. By direct evidence as in this case, there must be the evidence of an eyewitness of the incident of murder. By circumstantial evidence it means indirect evidence or existence of some facts from which an inference of a true fact can be made. It is trite law that circumstantial evidence to lead to a conviction must point to one possibility only – that the offence was committed and that it was the accused who committed it. When such evidence is capable of two interpretations one against and the other in favour of the accused, then there is no proof beyond reasonable doubt. – OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)
It is true that there are cases in which circumstantial evidence may be the best evidence when it is capable of proving a proposition with the precision of mathematics but I am afraid this is not the case here. An inference of the guilt of the accused cannot be drawn from mere coincidences and suspicions as the learned trial Judge has done in this case. It is my view that the evidence in this case is very inadequate to prove beyond reasonable doubt that the appellant was guilty of the offence of murder. – OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)
⦿ SIMILAR JUDGEMENTS