➥ CASE SUMMARY OF:
Valentine Adie v. The State (1980) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC24/1978
➥ JUDGEMENT DELIVERED ON:
Friday, the 8th Day of February 1980
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ BETTER FOR TEN GUILTY PERSONS TO GO FREE THAN ONE INNOCENT SHOULD SUFFER
As we indicated in Stephen Ukorah v. The State (1977) 4S. C. 167 there is great need for a trial court to tread cautiously in the application of circumstantial evidence for the conviction of an accused for any offence with which he is charged. The Romans we pointed out, with approval, in Ukorah (Supra at p .177) had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned: and Sir Edward Seymour speaking on a Bill of Attainder in 1696 laid greater emphasis on this maxim when he stated that he would rather “that ten guilty persons should escape than one innocent should suffer.” That also was our view in Ukorah (Supra). — Idigbe, JSC.
⦿ WEAKNESS IN THE CHAIN OF CIRCUMSTANTIAL EVIDENCE CANNOT LEAD TO A CONVICTION
What is a heavy blow? Was it a heavy blow with a fist, a plank, a stick, an iron, a rock, from a falling object, from a car, a motor cycle or what? There is no indication from the evidence on record. The absence of this vital link from the evidence of P.W. 1 goes to show the weakness in the chain of circumstantial evidence, which the learned trial judge regarded as strong. The chain of evidence was therefore not complete to link the crime with the stick allegedly held by the appellant when he decided to pursue the deceased. There is no evidence circumstantial or otherwise, which conclusively established that the injuries, which caused the death, was attributable to the application of the stick. Of course the stick was not described. Was it a big stick, a small stick, a thin stick; was it a strong or weak stick? There was no answer. — Obaseki, JSC.
⦿ CIRCUMSTANTIAL EVIDENCE MUST BE IRRITABLE
The ascription of these injuries to the application of a stick, which was not produced, the size of which was not testified to or ascertained, and which was not acknowledged by the doctor P.W.1 as capable of causing the injuries is a serious misapplication of facts and miscarriage of justice. The chain of evidence necessary to lead irresistibly to the guilt of the appellant is not complete in this case. It may well be helpful to remind ourselves what circumstantial evidence is – Circumstantial evidence is as good as, sometimes better than any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete unbroken chain of evidence. If that is established to the satisfaction of the jury, they may well and properly act upon such circumstantial evidence. — Obaseki, JSC.
⦿ STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
It was not for the appellant to prove that the stick he held did not and could not cause the injuries. It is for the prosecution to prove that its use caused the injuries. The burden does not shift. The standard of proof required is very high. On this point, Lord Diplock says – In criminal proceedings, by an exception to the general rule founded upon considerations of public policy. If the consequence of a finding that a particular fact is proved will be the conviction of the defendant the degree of probability must be so high as to exclude any reasonable doubt that that fact exists. Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact; it is sufficient for his acquittal if any of the acts, which, if they existed, would constitute the offence with which he is charged are ‘not proved’ Per Lord Diplock in Public Prosecutor v. Yuvavaj (1970) A.C. 913 at 921. — Obaseki, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Muhammadu Lawal Uwais, JSC.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The facts before the trial court, which were not in dispute, may be summarised as follows. On 16th December, 1975 both the appellant and the deceased took part in a football match after which there was hot argument between them. The appellant returned to his room at Front Line Hotel, Obudu. Not long afterwards the deceased went to the hotel and met the appellant in the room. A fight ensued between them in the room. The fight, according to the appellant, lasted about ten minutes. The time was about 7 p.m. P.W.2, James Akpagu was an eyewitness to the fight. He said in evidence that he had gone to the “generator room” of the hotel to switch on the hotel electric plant when he heard some noise coming from the appellant’s room. He went to the room and found the deceased and appellant fighting. He attempted separating the fight but in vain. One Godwin Uka came to the room and with his assistance the fight was stopped and the deceased was pushed out of the room. The appellant then got hold of a stick to chase the deceased. P.W.2 tried to stop the appellant, but the appellant shouted at him saying “let me alone to pursue him”. The appellant then went after the deceased P.W.2 came out of the Front Line Hotel but could not see the appellant. He, on information received, ran to Port Harcourt Street where he found the deceased lying on the ground. The deceased called on him for help and asked the witness to get his (deceased’s) father to the scene. Meanwhile one Justina Azikpu, P.W.5, who had seen the deceased on the ground requested Timothy Agida, P.W.4, to take the deceased to the hospital. P.W.4 picked the deceased on his motor cycle and took him to the police station instead. The police then took the deceased to the Sacred Heart Hospital, Obudu, where the latter was admitted by a doctor for observation.
The doctor testified as P .W.1 and said: On 16/12/75 I admitted at about 8.30 p.m. one Cyril Bishung into hospital. Cyril had a small laceration on the bridge of the nose, and another laceration on the right eyebrow. I observed that the right eyelid was grossly swollen. His general condition was good at the time of admission. He was admitted for observation. On 17/12/75 his general condition was satisfactory. On 18/12/75 he had transcient episodes of restlessness and was semi-comatose at times. At 9.40 p.m. of 18/12/75 he died. I next performed a post-mortem examination on 19/12/75 at 8 a.m. I found upon dissection of the skull linear slightly depressed fracture of the frontal bone, just above the nose and another depressed fracture on the right eye brow. There was communited fracture of the right orbital plate, with displacement of splinter fragment, also observed extradural haemorrhage of the frontal orbital bone. In my opinion cause of death was the above-stated injuries on the head.
The appellant was convicted at the High Court, Ogoja of the murder of Cyril Bishung and was sentenced to death. He appealed to the Federal Court of Appeal against conviction and the appeal was dismissed. He has now appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the circumstantial evidence that led to the Appellant’s conviction is cogent & compelling?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE EVIDENCE OF THE DOCTOR IS DIVERGENT, AND ONE CANNOT BE PICKED
“Under cross-examination Dr. Parlato said: All the head injuries are due to a heavy direct force. These ones are consistent with injuries caused if a person ran against a heavy object.
In her report (Exhibit 3), however, Dr. Parlato stated: I certify the cause of death in my opinion to be due to above head (sic) injury due to a heavy blow.”
“Now to return to the submissions of learned counsel for the appellant. In Exhibit 3, as already shown, the doctor stated that the injuries suffered by the deceased were caused by a heavy blow. She made no mention of the cause of the injuries in her evidence-in-chief, except under cross-examination when she said that the injuries were consistent with those caused when a person runs against a heavy object. The divergence of the opinion expressed by the doctor is significant in the light of the case for the prosecution and that for the defence. If the injuries were caused by a heavy blow, that is consistent with the prosecution’s case, but if on the other hand they correspond with injuries caused by running against a heavy object, that would be in support of the appellant’s defence that the deceased collided with the frame of the door to the appellant’s room.”
B. THAT THE STICK WAS NOT ADDUCED IN EVIDENCE, HENCE SIZE NOT KNOWN
“The prosecution omitted to adduce any evidence about the size and shape of the stick carried by the appellant when he pursued the deceased. Consequently, it cannot be said with any degree of certainty that the stick was capable of causing the injuries sustained by the deceased, if it were to be held, as indeed the learned trial judge did hold and the Federal Court of Appeal affirmed, that the appellant was responsible for causing the death of the deceased by striking the latter with the stick. In any case with the ambiguity in the testimony of the doctor unresolved it is difficult for me to see how the case for the prosecution, which is based on circumstantial evidence, could be said to have been so conclusive as to irresistibly lead to the guilt of the appellant.”
“In conclusion the appeal succeeds and I will allow it. The decision of the Federal Court of Appeal is set aside and the conviction and sentence imposed by the trial High Court are quashed. The appellant is acquitted and discharged.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ CIRCUMSTANTIAL EVIDENCE IS OFTEN THE BEST FORM OF EVIDENCE
Lord Hewart, Lord Chief Justice of England observed in P. L. Taylor & Ors. v. R. 21 Cr. App. R20 at p.21: It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics.
⦿ CERTAINTY IS REQUIRED TO CONVICT ON CIRCUMSTANTIAL EVIDENCE
In Majekodunmi v. The Queen 14 W.A.C.A. 64. Foster-Sutton P. (as he then was), dealing with circumstantial evidence stated at p.69 In view of the conflict and discrepancies in the evidence of the prosecution can it be said that the case against the appellant was proved with that certainty which is necessary in order to justify a verdict of guilty? …… Moreoever we are not satisfied that the only inference that can be drawn from the evidence given at the trial is one of guilt……. See also Spiff v. Commissioner of Police 19 N.L.R. 81 and the views of this Court in Stephen Ukorah v. The State (1977) 4S.C. 167 at pp.176 et seq, and Udo Akpan Essien v. The State (1966) N.M.L.R. 229.
⦿ MEDICAL REPORT AND EVIDENCE IN CHIEF
In David Ifenado v. The State (1967) N.M.L.R. 200, a decision of this Court which was relied on by the Federal Court of Appeal, the doctor after his evidence in chief produced a medical report which was received in evidence. Brett, J.S. C. (delivering the judgment of the Court) held that It was clearly inadmissible at that stage. The Doctor might properly have been allowed to refresh his memory from the report under Section 215 of the Evidence Act and the defence would then have been entitled to see it and cross-examine on it, in which case it might have been produced in evidence but it ought not to have been admitted at the trial in the evidence-in-chief.
➥ REFERENCED (OTHERS)