In the Supreme Court of Nigeria Holden at Abuja On Friday, the 5th day of June, 2020

Before Their Lordships

Mary Ukaego Peter-Odili

Musa Dattijo Muhammad

Kudirat Motonmori Olatokunbo Kekere-Ekun

Chima Centus Nweze

Ejembi Eko

SC.692/2014

Between

NDUBUISI DIKE APPELLANT

And

THE STATE RESPONDENT

(Lead Judgement delivered by Honourable Musa Dattijo Muhammad, JSC

Facts

The Appellant was arraigned before the High Court of Abia State for the offence of murder contrary to Section 319 of the Criminal Code, Laws of the Eastern Nigeria, 1963, as applicable to Abia State.

It was the case of the Respondent that on 25th December, 2009, PW1 – the mother of the deceased and the Appellant, had suddenly woken up in the middle of the night and found the room of the deceased in flames. It was alleged that PW2, a brother to both the Appellant and the deceased, had also come out of his room about the same time and witnessed the deceased’s room being gutted by fire. PW1 and PW2 purported to have seen the Appellant prancing around undisturbed by the raging fire consuming the deceased’s room, and he made no effort to rescue the deceased. PW1 and PW2 raised alarm and the fire was eventually extinguished. They were however, unable to save the deceased who had been burnt beyond recognition.

The case of the Respondent was that few days preceding the fire incident, the Appellant had requested for the sum of N1 million from the deceased (the Appellant’s younger brother) to enable him purchase a second hand vehicle (bus), but the deceased who had assisted the Appellant with money in the past informed the Appellant that he did not have such amount. PW1 testified that the Appellant reported the deceased’s refusal to accede to his request to her, and he threatened to kill someone if his demand was not met. In her testimony, PW1 stated that the Appellant became so irritated with the deceased, that he abstained from eating at home for about three days preceding the inferno. PW1 and PW2 further testified that the Appellant confessed to them that he had set the deceased’s room ablaze, and that if PW1 divulged the information to anyone, he would kill her. The Appellant who testified in his own defence denied setting the deceased’s room ablaze, or confessing having done the said act to PW1 and PW2.

At the end of the trial, the court found the Appellant guilty as charged and sentenced him to death by hanging. His appeal to the Court of Appeal was dismissed. Thereafter, the Appellant filed a further appeal to the Supreme Court.

Counsel for the Appellant distilled four issues for determination of the appeal, while the Respondent distilled a single issue for determination. In its determination of the appeal, the Apex Court considered the sole issue formulated by the Respondent –

Whether the Court of Appeal was right when it affirmed the conviction of the Appellant, having regard to the evidence led by the Prosecution.

Counsel for the Appellant argued that the decision of the trial court was not supported by the kind of circumstantial evidence which the law insists can sustain a conviction, and the affirmation of the same by the Court of Appeal was not tenable. He submitted that it was not enough for the Prosecution to establish the death of the deceased only, the proof of the other ingredients of the offence, by whom and why the deceased was killed, must also be proved beyond reasonable doubt. He argued that none of the three witnesses, PW1, PW2 and PW3, linked the cause of death of the deceased, or the ignition of the fire that led to his death with the Appellant. He argued that all the evidence of the Prosecution witnesses was nothing more than suspicion, which does not amount to proof of the offence. Counsel posited further that if the courts are to rightly convict the Appellant based on circumstantial evidence, the evidence must point at the Appellant alone as causing the death of the deceased. Relying on the decision in ONAH v STATE (1985) 3 NWLR (Pt. 2) 236; CHUKWU v STATE (2013) 4 NWLR (Pt. 1343) 171, he submitted that in the absence of direct, positive and conclusively compelling circumstantial evidence nailing the Appellant to the commission of the offence, his concurrent conviction and sentence by the trial court and the Court of Appeal, was a complete travesty of justice.

Countering the argument above, counsel for the Respondent contended that the circumstantial evidence which the lower courts based their concurrent findings of the Appellant’s guilt upon, satisfied the requirement of law. He submitted that there was evidence, showing that the Appellant had confessed to his mother – PW1 that he set his late brother’s room ablaze, and PW3 – the Investigating Police Officer also testified that the Appellant admitted committing the offence. He argued that this evidence was in addition to evidence adduced of the Appellant’s actions and behaviour prior to the fire incident that killed his brother, which evidence were complete, unequivocal and led to the irresistible conclusion that the Appellant alone set the deceased’s room ablaze and caused his death. Counsel argued that the Prosecution having established a prima facie case against the Appellant, the law required credible explanation from the Appellant and the Appellant’s failure to lead evidence in rebuttal was fatal to his case. He relied on UDEDIBA v THE STATE (1976) 11 SC 133; AKPAN v STATE (2001) FWLR (Pt. 56) 735 – 749.

Deciding the sole issue, the court held that before circumstantial evidence can be relied upon to convict a person accused of the offence of murder, it must be so cogent, complete, unequivocal and compelling, that it leads to the irresistible conclusion of the guilt of the accused person, and leaves no degree of possibility or chance that someone else would have committed the crime. There must not be co-existing circumstances, that would weaken the evidence. Circumstantial evidence should be as cogent and compelling as to convince the court that, upon no rational hypothesis other than the offence of murder, can the facts be accounted for. It must be incompatible with the innocence of the accused person, and incapable of any explanation upon any rational basis than that of guilt – ABIEKE & ANOR. v STATE (1975) 9-11 SC 97 at 104; CHUKWU v STATE (2013) 4 NWLR (Pt. 1343) 171 at 211; OLADOJO v STATE (1987) 3 NWLR (Pt. 61) 419; OGBA v STATE (1992) 2 NWLR (Pt. 222) 164. Applying the principle above, the court held that mere circumstances of suspicion would not amount to cogent circumstantial evidence which is sufficient to justify a conviction, as a suspicion, no matter how strong, cannot take the place of legal proof.

The court held further that, where a person is accused of the offence of murder, the Prosecution must prove beyond reasonable doubt that (a) the deceased died; (b) the death of the deceased resulted from the act or omission of the accused; and (c) the act or omission of the accused was intentional. and done with the knowledge that it might result in the death of or grievous bodily harm to the deceased. These three ingredients must be jointly established by credible evidence, and the Prosecution’s case will fail where proof in respect of any of these ingredients of murder is not attained, or where the evidence is destroyed by cross-examination and is rendered manifestly unreliable for any reasonable tribunal to convict upon – ABIRIFON v STATE (2013) LPELR- 20807 (SC); DABOH v STATE (1977) 5 SC 197 and OKORO v STATE (1988) LPELR – 2494 (SC).

In this case, the only evidence on record is the fact of the death of the deceased occurred from the fire outbreak. Although PW1 and PW3 had in their evidence-in-chief testified that the Appellant admitted starting the fire that killed the deceased, PW1’s extra judicial statement recorded by PW3 did not contain this fact. PW3 too, never reflected the fact of the Appellant’s confession in his report as the Investigation Officer, and under cross-examination, he stated that PW1 told him the Appellant confessed to her but he did not include it in the statement because when he got to the Police station, the Appellant denied making any confession to PW1. On the other hand, under cross-examination, PW1 denied telling the Police that the Appellant had confessed killing the deceased. These were material inconsistencies in the testimonies of PW1 and PW3 as to the fact of the Appellant’s confession, and the court should have exercised caution in relying on the purported confession to convict the Appellant.

Their Lordships held that, it was evident from the record that the Appellant had been very consistent in his outright denial that he had confessed to either PW1 or PW3 that he caused the death of the deceased. The trial court, thus, ought to have subjected the said confession to scrutiny against other available evidence, before rushing to accept the oral evidence of PW1 and PW3 that the Appellant had confessed to killing the deceased. Apart from evidence of the deceased’s death through the fire outbreak, there was no iota of evidence led by the Respondent to show that the fire was deliberately set, or that it was the Appellant who did so. The second and third ingredients of the offence of murder as to who killed the deceased and the intention to kill, were left unattended to by the Respondent. The evidence relied upon in convicting the Appellant was, at best, a mere suspicion that the Appellant had murdered his brother, and no matter how strong suspicion is, it does not constitute evidence of the fact the law requires in securing and sustaining the conviction for the offence the Appellant was convicted for.

With the above, the Supreme Court allowed the appeal; while His Lordship, Ejembi Eko, JSC gave a dissenting opinion.

Appeal Allowed on a ratio of 4:1.

Representation

C.C. Elele with others for the Appellant

Dan Uruakpa for the Respondent

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)