The Insufficiency of Circumstantial Evidence: Aderemi Omotayo v. State (Court of Appeal) (2013)

Aderemi Omotayo
The State
Court of Appeal
(Akure Division)
Kudirat Motonmori Olatokunbo Kekere-Ekun. J.C.A
Chinwe Eugenia Iyizoba. J.C.A. (Read the Leading Judgment)
Moore A.A. Adumein. J.C.A
Thursday, 12th July, 2012
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.
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 15t accused at Ubi Camp, Idanre by the 15t 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 PWI. 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  1st  accused and the deceased were arguing over missing cocoa beans which the 1st accused alleged were stolen by the deceased; that a crowd later
gathered, and the deceased walked into the house of the 1st 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 D 1. 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 15t accused for which the deceased raised an alarm, but maintained that the deceased shot himself in the living room of the 1st 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.
Held (Unanimously allowing the 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.
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. [.GP.
(1959) SCNLR 516; R. v. Abengowe (1936) 3 WACA 85; R. v. Oledima 6 WAC A 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 1st 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 1″1 accused. The deceased was also a friend of the 1st accused.
3. That the deceased discovered some bags of Indian hemp in his cocoa farm and raised an alarm. After this the 1st accused started to look for the deceased.
4. That on 20/9/96, the 1st accused succeeded in getting the deceased when he invited the deceased to his house. The 1st accused had already assembled the 2nd and 3rd accused and one Ojo still at large in his house.
5. That the Is1 accused confronted the deceased with the Indian hemp issue and demanded to know what had happened to it.
6. That while they were still arguing the 1st accused told the wife of the deceased to
leave the scene in order to attend to her baby who was then crying. The woman complied.
7. That after leaving the scene there was a gun shot in the direction of where the accused and the deceased were and when the wife of the deceased got back to the scene as a result of the gun shot she heard, she met her husband dead in the sitting room of the 1st accused and saw a gun on top of a table where the deceased’s lifeless body was.
8. That the accused persons were the people who last saw the deceased alive -because he was in their company.
As far as the appellant herein is concerned, I have no doubt in my mind that the facts above fall gravely short of the standard required to secure a conviction against him based on circumstantial evidence. The only facts concerning the appellant therein are that the 1st accused is his master and that he lives in his house; that he was one of those who last saw the deceased alive. The fact of the 1st
accused having already assembled the 2nd and 3rd accused persons in his house on 20/9/96 as
evidence of conspiracy does not arise as the 1st accused is the master of the appellant and the
appellant lives in the house of the 1st accused.
This explains convincingly his presence in the scene of the alleged crime and punctures any
inference of a preconceived plan or conspiracy to commit the offence.”

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