Suspicion however grave can’t amount to proof - Abba Aji
IN THE COURT OF APPEAL OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI ON FRIDAY THE 21st DAY OF FEBRUARY, 2014 BEFORE THEIR LORDSHIPS UWANI MUSA ABBA AJI; (PRESIDING JUSTICE) PHILOMENA M. EKPE (JUSTICE, COURT OF APPEAL); PETER OLABISI IGE( JUSTICE, COURT OF A
Continued from last week
On the circumstantial evidence available therefore, who then procured the deceased to the scene of crime and whether the Appellant has a hand in the murder of the deceased.
The PW5 in his evidence under cross examination said ,”It is a fact” when asked ‘If those three persons whose identities you do not know were brought by the accused as prospective buyers she had no need for a land agent, including the deceased.” Similarly, it is in evidence that the deceased as a land agent has been familiar with the Appellant on this same land transaction and the said land. In fact, it was admitted by PWl that the deceased had been on the land before but the sale was aborted because of the price. Also in her evidence under cross examination PWl among other things revealed further that “the land transaction between my late husband and the accused was not the first land transaction they had together.” More so, the PW5 revealed under cross examination that ‘1n my investigations Report, I clearly stated that the investigation into the death of the deceased is still inconclusive since the three men the accused went into the bush with them where the deceased was killed have not been identified. And since there is absolutely no evidence that the Appellant had a hand in the death of the deceased even though a satisfactory and cogent explanation is required of her by the requirement of the law, the circumstantial evidence has to come in. The PWl in her statement to the police hereinafter called Exhibit “A” said inter alia and I quote:
“1 am suspecting that she is the one who killed my husband. The other two suspects arrested¬ Michael Njoku and Godfrey Amanze have land matter with my husband (sic) family. 1 am also suspecting them to have hand in the death of my husband. It is also worthy of note to mention that sometime in the year 2004, Grace Nwachukwu invited my husband and informed him to look for a buyer who will buy the said land. My husband look (sic) for the buyer but they did not price it well as such, it was not sold by them to the buyers. Later, she came and informed my husband to recall the buyers as she had agreed with the amount they offer. But they do not come to buy it as they went elsewhere and bought another land. That is all 1 have to say.”
She could not conceal her piquant and pungent suspicion on the Umungwaso family to having a hand in the death of the deceased. The PW1 said her suspicion here and laid a foundation the fact that the Appellant had no lingering quarrel, malice or dispute to warrant her doing what befell her late husband but that based on what happened, she had a clue. It is part of the evidence of PW1-the wife of the deceased as follows:
I greatly appreciate the evaluation of evidence of the trial judge and especially the fact that the demeanour of the witnesses was exclusively his domain, I tend not to agree with his sense of judgment as it is basically suspicious and largely circumstantial when he decided thus:
“Following the logic of the analysis made, and the sequence of facts as set out above, the circumstantial evidence thus adduced is cogent, strong, unequivocal and points irresistibly to the accused as being responsible for the death of the deceased having played the part of luring him to the scene of crime. For all these reasons, I have found the accused guilty of the murder of Godwin Okwandu on the 6th day of December, 2005 as charged on the information.”
It is the law therefore that for circumstantial evidence to ground conviction in a murder case, it ought to lead to one conclusion and possibility. That it was the accused and no other that killed the deceased. This was succinctly held -in MOHAMMED V. STATE (1997) 11 NWLR (PT. 528) 339 AT 359:
Having gone through the evidence and the statements of the Appellant’s and Respondent’s witnesses and as an independent umpire who had not the opportunity of watching the demeanour of the witnesses, my task here is to establish whether by the evidence, reasonable doubt exists in the instant appeal.
It has been established in evidence that the deceased is a land agent and has been into such a land transaction with the Appellant for some time before the deceased was shot to death in the company of the Appellant. It is in evidence and in fact undisputed that the deceased visited the house of the Appellant for the purpose of showing the deceased the boundary of the land which was hitherto shown him in a previous aborted deal. PWl accepted that the deceased told her that he visited the house of the Appellant. Thus, the visit of the deceased to the house of the Appellant on 5/12/2005 is not contentious. The contention however is whether he was lured and baited into his murder by the Appellant on the 6/12/2005 or not.
This was confirmed by PW1 particularly the answer to her cross examination when inter alia she revealed: To my knowledge and as I stated in one of my statements to the police, the land transaction between my husband and the accused was not the first land transaction they had together.” (The underlined for emphasis).
There has been created a possibility of the deceased being killed by the members of the Umungwaso family who the deceased took an oath against and the effect was that whosoever died within a year of the oath taken was presumed to have been killed by the juju and the surviving family would be entitled to the land. The PW1 did not mince words here nor ruled out that possibility when she unequivocally said that the other two suspects arrestedMichael Njoku and Godfrey Amanze have land matter with my husband family. I am also suspecting them to have hand in the death of my husband.” She admitted when under cross examination that she told the police of also suspecting the Umungwaso family as part of the people who shot her husband and she replied that “I said so.” PW5 made another corroborative revelation that it was the PW1’s petition to the AIG Zone 9 Headquarters, Umuahia, that she was suspecting (1) Elder Michael Nwogu Njoku (2) Chief Godfrey Amanze (3) Chief Ngozi Njoku (4) Mr. Nwoobioha Njoku (5) Mr. Goodluck Njoku (6) Mr. Chintua Nwadinma (7) Mr. Nwazor (8) Mr. Osu Obiwe (9) Mr. Emmanuel Appollos. I am of the strong opinion that though suspicion is not evidence in law but this having come from
“It is the law therefore that for
circumstantial evidence to ground conviction in a murder case, it ought to lead to one
conclusion and possibility.
the prosecution principal witness; it creates serious and reasonable doubt on my mind that there is also another possibility that it may not also be the Appellant that murdered the deceased.
The many ‘whys’ asked by the trial court and the conclusions drawn are to my sincere opinion not irresistible possibilities ad conclusions to the Appellant having a hand in the death of the deceased. I have also ruminated and cogitated over so many possibilities in this instant appeal and I am compelled to keep questioning: is it possible for the Appellant to find the deceased on the way with the prospective buyers of the land who turned out to be his murderers? Is it the land agent that ought to procure buyers of a land he had been hired or engaged to sell or the land owner? Is it possible for the appellant not to know the prospective buyers of the land who turned out to be his murderers though she was in their company and she saw them? Is it also possible that the Appellant is under a threat of extermination or annihilation by the murderers not to reveal who they are after they have killed the deceased even though she may be able to identify them? If I may guess further, if as led in evidence that the deceased came to the Appellant’s house on 5/12/2005, to inform her of having got prospective buyers, who allegedly were the ones taken to the Appellant’s farm on 6/12/2005, then common action may also be ruled out, etc. These all cast reasonable doubts on my mind. The law therefore has proffered a way out to this problem in the case of AZEEZ V. STATE (2005)8 NWLR (PT.927) 312 AT 326 PARAS G-H, wherein it held that:
“It is fundamental principle of criminal law that once there is a doubt about the guilt of the accused person, such doubt must be resolved in favour of the accused. And once such doubt is resolved in favour of the accused, the courts have no choice but to discharge and acquit the accused for the offence charged.”
I therefore resolve this issue also in favour of the Appellant.
In sum, the two issues are resolved against the Respondent and in favour of the Appellant. The appeal is therefore meritorious and it is hereby allowed. The conviction and sentence of the Appellant in the judgment delivered on 5/10/2009 is hereby set aside. The Appellant is therefore discharged and acquitted of the offence of murder contrary to Section 319 of the Criminal Code, applicable to Abia State.
Chief Henry Akunebu, Esq. with P. A. Obiukwu, Esq. for the Appellant.
E. Okezie, Esq. (SGPS) Abia State, P. U. Ogubunka, Esq. Ag. DCL, for the Respondent.
Zainab Bulkachuwa, President, Court of Appeal