KINGSLEY OMOREGIE v THE STATE (SC. 334/2012) [2017] NGSC 17 (1 June 2017)

In the Supreme Court
Holden at Abuja
Friday, 02 June 2017
Suit Number; SC. 334/2012
KINGSLEY OMOREGIE                                 ......................   Appellant
THE STATE                                                  ......................   Respondent
(Delivered by Olabode RhodesVivour, JSC)
I read in draft the Leading Judgment delivered by my learned brother Sanusi, JSC. I agree with the conclusion already expressed. There is nothing further that can be usefully be said.
Appeal dismissed. .
I read in draft the lead Judgment of my learned brother Sanusi, JSC. I subscribe to same that the appeal is devoid of any merit and should be dismissed. The circumstances of this case in the absence of any direct eye witness to the murder of the deceased, has to be resolved on circumstantial evidence. By definition:
"a circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature is capable of establishing a proposition, such as the criminality of an accused with the highest exactitude. It is a combination of evidence of circumstances against an accused when taken together, creates strong conclusions of his guilt with high degree of certainty. It is by
application very sparingly used for possible fear of fabrication and casting suspicion on an innocent person." See Oketaolegun v. State 2015 All FWLR (Pt. 797) page 677.
For circumstantial evidence to ground a conviction, it must lead to one irresistible conclusion, That is, the guilt of the accused. Any slight doubt must leave room for an acquittal.
I wish to say at this point that I have had to air my view in the sister case of Oketaolegun v. state under reference supra and delivered on the 3rd July, 2015. The circumstantial evidence in this case, like the sister case, is overwhelming and leaves no doubt that the appellant and his companion had the 1st opportunity to commit the crime. The prosecution did prove the appellant's guilt beyond all reasonable doubt.
The appellant herein, like the colleague in the sister case, has every cause and reason to celebrate his escaping death. The favour done him is unprecedented. For whatever reason the lower court commited him to life imprisonment instead of death, he should live to appreciate the favour of God upon him.
On my own part, therefore, I have no reason to depart from the decision of the lower court but endorse same also.
My brother Sanusi, JSC has done justice to the appeal and I endorse his reasoning and conclusion as mine and dismiss the appeal accordingly in terms of the lead judgment.


This appeal is against the judgment of Court of Appeal, Ibadan division (the lower court) delivered on the 24th of April, 2008 which partially affirmed the judgment of the High Court of Ogun State. (the trial court) delivered on 7th March, 2005.
The appellant herein and his co-accused Shina Oketaologun were arraigned before the trial court sitting at ljebu-Ode (coram lbikunle Adesalu J) on a two count-charge of conspiracy to commit murder and murder contrary to Section 324 and Section 316(2) respectively punishable under Section 319(1) of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria. Both of them were accused killing one Chief Engineer Samuel Fatuga.
The case of the prosecution was that the appellant was an employee of the deceased as the latters bus driver. He in company of the co- accused Shina Oketaologun together formed common agreement, left lbadan for the deceased residence in Ijebu-Ode, Ogun State. On arriving at the compound of the deceased, PW1 said he saw them and was surprised to see the appellant who had earlier been accused of stealing the deceased person's bus. Being apprehensive of what might have brought appellant to the deceased person's compound, the PW1 stated that he went and informed the members of the Vigilante Group the town on the need to arrest the appellant and the co-accused. On returning to the compound along with the members of Vigilante group, the PW1 testified that they found the deceased in pool of his own blood. He stated that on sighting him and the vigilante group members, the appellant and his co-accused ran into the rooms and then ran out of the compound through the back door in a bid to escape but they were apprehended by the members of the Vigilante group who surrounded the compound of the deceased. Recovered at the scene, were a yellow marine rope used in tying the deceased to the railings of the stair case and a knife used in stabbing the deceased on his chest and abdomen.
During the trial, the prosecution in an effort to prove the charges against the appellant and the co-accused, called five witnesses.
The appellant on the other hand testified on his own behalf denying the charges framed against him. He testified that he merely went to the deceased's house on appointment given to him by the deceased to go there and collect his outstanding wages. At the conclusion of the trial, the trial court found the appellant and the co-accused guilty and convicted them of both counts of conspiracy to commit murder and of murder and sentenced each of them to five years imprisonment for the first count of conspiracy to commit murder and to death by hanging for the second count of murder.
Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal, lbadan division (the court below" or "lower court for short). On hearing his appeal, the court below substituted the appellant's conviction of murder with that of attempted murder and committed the death sentence to that of life imprisonment.
However, still dissatisfied with the lower court's decision, the appellant further appealed to this court.
In keeping with the rules and practice application in this court, parties to this appeal filed and exchanged briefs of argument which were later with leave of this court, subsequently amended. The Appellant's Amended Brief of argument settled by on Rotimi Aladesanmi Esq was filed on 20/3/2014.
On its part, the Respondent filed its Amended Respondent's Brief dated 20/4/2014, on 23rd April, 2014 of Argument through one Bola Olotu Esq who was also the learned counsel who settled the said Amended Respondents Brief of Argument.
In the Appellant's Amended Brief of Argument, two issues for the determination of the appeal were formulated which read thus:-
1. Whether the evidence by the prosecution was clear, cogent and compelling enough to found the conviction and sentence of the appellant as pronounced by the lower court.
2. Whether the necessary ingredients of an intent to kill was established, to justify the appellant's conviction for attempted murder.
The appellant's learned counsel has married issue No.1 to grounds of appeal Nos 2, 3, 4, 5 and 6, while issue No.2 was tied by him to grounds 1 and 7.
On its part, the respondent in its amended respondent's brief of argument proposed a lone issue for the determination of the appeal and the lone issue is set out below:-
"Whether the court below (Court of Appeal) was right in convicting the appellant of attempted murder and sentencing him to life imprisonment considering the evidence. "
Looking at the two sets of issues raised by the parties, I think the issue raised by the respondent is the same with the first issue raised in the appellant's amended brief of argument. That issue has also in my view, subsumed the second issue formulated by the appellant. I will therefore treat this appeal on the guidance of the respondent's sole issue for determination.
The learned counsel for the appellant submitted rightly too, that the case for the prosecution was built on circumstantial evidence predicted on the testimony of PW1. He argued that the case of the prosecution was unreliable and therefore the findings of the two courts below were perverse and have led to miscarriage of justice. He highlighted the fact that in order to secure a conviction on circumstantial evidence in criminal trial, the evidence adduced must be compelling and must lead to irresistible conclusion that the accused and no other one else could have committed the crime but him and where a court is asked to draw certain inferences, such must be based on natural course of human conduct. Learned counsel contended that the deceased was not alone in his compound, as PW1 and the son of the deceased gave their addresses of abode as the same with that of the deceased as No.1 Falaoya Street, Ukoto via Ijebu-Ode. He therefore urged this court to consider the possibility of someone particularly the PW1, of committing the crime before the arrival of the appellant and the co-accused at the compound. He argued that no money or any valuable was recovered from them and no blood stains were seen on their clothes and their finger prints were also not seen in the two knives allegedly found at the scene of the crime. He stated that there was no how stains of blood that splashed on the walls without same touching the appellant and his co-accused who were alleged to have inflicted the knives stabs on the deceased.


Learned counsel for the appellant referred to alleged inconsistency in Exhibit A, the statement of PW1 to the police that the appellant was arrested by people who surrounded the deceased person's house but while testifying in court he stated that the appellant was arrested by members of the vigilante group.
Still on inconsistency, the appellant's learned counsel cited an example where in Exhibit A the PW1 stated that the deceased was found lying in pool of blood whereas in his testimony at the trial court, he stated that he saw the deceased sitting down with his heads tied to the railing of the step and that he untied the rope and took him to the hospital. He argued that there were apparent inconsistencies in those pieces of evidence adduced by the prosecution and also there were no explanations given by the prosecution on the contradictions between the evidence given by PW1 in court and his earlier statement to the police and that those contradictions were material ones hence for that reason they should be resolved in favour of the appellant.
He urged that this court should disregard the testimony of PW1 for being unreliable and not worthy of any credit, adding that the lower court was in great error in using the circumstantial evidence to affirm the conviction of the appellant by the trial court. He stated that there was no evidence to suggest that the appellant did anything to the deceased in raise the inference that he murdered the deceased. He opined that mere running away from the lexus criminis is not conclusive or indicative that the person so running away, is the culprit. He cited the case of Ugwumba v STATE (1993)5 NWLR (pt. 295) 660 at 671. He contended that the case as presented by the prosecution raised serious doubt, hence the lower court ought to have resolved such doubts in favour of the appellant.
In further submission, the learned appellant's counsel argued that the prosecution failed to establish through clear, cogent and compelling evidence the crime the appellant was charged with, tried, convicted and sentenced. He said that even if the appellant had actually stabbed the deceased, which he denied the attempted murder for which the lower court convicted him was also not proved against him. He then contended that the conviction on attempted murder could not therefore stand, hence this appeal should be allowed and the appellant be discharged and acquitted.


Responding to the above submissions by learned counsel for the appellant, the respondent's learned counsel conceded rightly in my view, that there was no eye witness account led by it in proof of the offences the appellant was charged with. He however argued that it had led circumstantial evidence in proof of the its case at the trial court which the lower court rightly believed, accepted and relied on to convict the appellant of attempted murder and sentenced him to life imprisonment. He submitted that the circumstantial evidence led was also so cogent and compelling as could lead to the inference by the trial court from the facts proved before it that the appellant did commit the crimes he was charged with and to convict him. See the case of CHIMA UWAFFOR VS STATE (2001) FWLR pt.99)1451 at 1478.
The learned counsel for the respondent further submitted that both the trial and lower courts had ably thoroughly evaluated the evidence of the appellant in the circumstances of the case before reaching their logical conclusions. He said the facts and circumstances of the case as present by the prosecution through the evidence it adduced or led, which was not rebutted had duly established or proved the case against the appellant that he and his co-accused killed the deceased through the infliction of wounds with knife used in stabbing him to death.
By the action and conduct of the appellant and the co-accused they had really manifested their intention to kill the deceased. He referred to the case of JEGEDE v STATE 2001) FWLR (PT.66)722.
Finally, the learned counsel for the respondent submitted that where the prosecution adduced evidence which suggests the conviction of lesser offence than that for which the accused was charged with, an appellate court can still convict the appellant of for such lesser offence. He cited and relied on the case of LUKMAN OSETOLA vs STATE 2012 All FWLR pt.560 1237 at 1264. He then urged this court to affirm the decision of the court below.
Suffice it to say, that the appellant had on 23/5/2014 filed an Appellants Reply Brief of argument. ln the said Reply Brief, the learned counsel for the appellant argued that the Respondent's counsel proffered evidence which was not borne out of the record. He referred to


Paragraph 4.11 of the Respondent's brief of argument while relying on the testimony of PW5 to the effect that there was surgical incision from upper to lower abdomen He argued that there was no evidence of the foregoing before the lower court as it only emanated from the counsel for the respondent who was trying to point a picture of fact and analysis which were not borne out of the record. He argued further, that the respondent's counsel misconstrued the evidence of PW5 in the record as shown at Paragraph 4.15 of the Respondent's brief of argument. Learned appellant's counsel also stated that appellant's testimony that he was called by the deceased to come and collect arrears of salary, was never denied by the prosecution which was acknowledged by the lower court at page 180 lines 16 to 18 of the Record. He argued that all these go a long way to show the veracity of the appellant's case and to explain that the presence of the appellant at the deceased person's house on the fateful date was purely an appointment.
Well, on the first issue raised in the Reply brief with regard to the place or places the deceased was stabbed as raised in the Respondent's brief, 1 think that is of no moment, since the death or cause of the deceased was not contested or made an issue at the trial. There is no doubt that as found by the two lower courts, the death of the deceased was proved by the prosecution now respondent) at the trial.
The only bone of contention particularly was on the alleged state of the deceased when the PW1 came with the members of vigilante group to the compound of the deceased. The issue raised in the Reply Brief in that regard, is therefore of no relevant.
With regard to the second issue raised in the Reply Brief filed by the appellant that has to do to the reason raised by the appellant as to why they went to the deceased person's compound on the fateful date, is also in my view, of less importance. The issue at stake was that the appellant and the co-accused were present at the compound of the deceased on that fateful date as testified by the PW1 and other witnesses called by the prosecution.
Whether the appellant and the co-accused went there on appointment or on their own volition for whatever reason, is not material. What is material was that they were fixed at the scene of the crime on that fateful day before the deceased was murdered in cold blood. I will say no more on that.
The law is well established, that in criminal trial, proof of commission of a crime by an accused person can be established in any of the following ways or methods, namely:-
a. Through the testimony of an eye witness or witnesses who witnessed the act of the commission of the offence, by the accused person; or
2. By confessional statement made voluntarily by the person accused of the commission of the offence, or
3. By circumstantial evidence.
However, in the case of proof by reliance on circumstantial evidence, that circumstantial evidence to be relied upon by the prosecution, must be credible, cogent and also must irresistibly point to the guilt of the accused and to no other person. Infact, it is stated in the parlance of criminal jurisprudence that circumstantial evidence is often regarded as a reliable and acceptable mode of proof of a criminal case and the court can accept and act on it, provided it is cogent and admissible. See SHUAIBU ABDU v THE STATE 2016) LPELR - 4461
(SC), USMAN v STATE (2013B NWLR pt.1342) 607; MAIGARI v STATE 2010)16 NWLR pt.43949; NWABUEZE v STATE (1996)2 NWLR (pt.428); HARUNA vs AG FEDERATION (2012) 9 NWLR pt.1306_419; ADEKOYA v STATE 2012)9 NWLR pt.1306)539.
The bone of contention between the parties is whether the circumstantial evidence relied upon by the prosecution now respondent was sufficient to warrant the conviction of the appellant by the trial court which was later substituted or commuted by the lower court.
As I have highlighted above, the prosecution now respondent, relied on circumstantial evidence since there was no eye witness who witnessed the commission of the offence. Both parties are agreed on that fact. There was also no confessional statement made by the appellant that was admitted in evidence since the trial court refused to admit the statement the appellant made to the police at the earliest period of police investigation, for the reason that the rules laid down by the Police regulations and authorities were not duly followed during the process of recording such statement. For that reason the trial court rejected the statement the appellant initially made to the police during investigation. This therefore goes to show that the prosecution merely relied on circumstantial evidence, particularly the evidence of PW1 who was its key or star witness. There is no gainsaying that in the absence of eye witness account, a trial court is at liberty to draw some inferences from facts presented before it in proof of the guilt of an accused person where there is no direct evidence coming from any witness or witnesses. Be that as it may, before a court can safely rely on circumstantial evidence to convict an accused person such court must be extraordinarily careful and also be cautious in order not to convict an innocent person or person who is totally not responsible for the commission of the crime and for that reason, the trial court must very narrowly examine the circumstantial evidence before relying on same to convict the accused person, simply because such evidence might be susceptible to fabrication just in order to rope in an innocent person into the commission of the offence that he knew nothing about. The circumstantial evidence must therefore be unequivocal and must have probative value.
Again, the law is trite, that where the circumstantial evidence is not conclusive or is capable of having two interpretations of showing the innocence of the accused and at the same time of his guilt. In such situation, the court must cast benefit of doubt in his favour to exonerate and acquit him. See STATE vs K Rs1957)s FSC 83;LORI v STATE (1980)11 SC 81; IJIOFOR v STATE (2001)3 NWLR {pt.690)55.
In this instant case PW1 testified that the Appellant and the co-accused met him at the compound of the deceased on 27/8/2002 and on seeing him he became surprised to see the appellant visiting the said compound because he had earlier on been accused of stealing the deceased's vehicle.
For that reason, he became apprehensive and suspicious hence he left the compound to invite members of vigilante group. On returning with the vigilante members to the compound, they met the door of the compound locked, hence he jumped over the gate to get access into the house. When he climbed the balcony and entered inside the house, he met the deceased laying in pool of blood tied to the railings with a rope. When the appellant cited him he escaped through the back door but was arrested by vigilante group members who had surrounded the house. The deceased was then rushed to the hospital where he later died.
On the other hand, the appellant stated that he went to the deceaseds compound because he was phoned by the latter to go there to collect his salary arrears. He testified that even when he and his co-accused entered they met the deceased laying in pool of blood. He said on seeing them, they became afraid and tried to run away.
The learned trial judge considered these vital pieces of evidence of both sides and evaluated them.
The trial judge then found inter alia
PW1 was not the first person to see the deceased in that terrible condition going by the evidence of the accused persons. It was the accused person that were the first to see the deceased. I am of the view therefore that the accused persons had the opportunity to commit the crime. "
Now considering the surrounding circumstances of the case, especially the two scenario presented by both the appellant and the PW1, I am of the term view, that the above finding of the trial court can not be faulted. The lower court also correct in endorsing such finding, The appellant, on citing the PW1, tried to run away through the back door. Although mere attempt to escape by accused is not necessarily a conclusive evidence that he is the culprit, the court can however infer from such conduct that he must be aware of something before attempting to run away. If he was innocent he would have remained there to offer some explanation. Again, evidence abound that the appellant locked the gate of the compound so as to prevent anybody coming into the house. To my mind, if they had no guilty intention there would have been no need to lock the gate of the compound at that material time. It is therefore unequivocal, that it was the appellant that attacked the deceased, tied him up and stabbed him with knives inflicting some injuries on him, which certainly led to his death as rightly found by the trial court and affirmed by the lower court.
It is clear, that the appellant and his co-accused person were the last persons to be with the deceased from the evidence adduced by the prosecution. In the case of STEPHEN HARUNA vs THE ATTORNEY GENERAL OF THE FEDERATION (2012) LPELP 782 SC, this court had this to say:-
"The law requires a person last seen with the deceased, whose cause And nature of death is in contention to offer an explanation of what he knows about the death of the deceased. Onus is always on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased. " See IGABELE v THE STATE 2006) 8 NWLR (pt. 975100 at 127128; Okoko & Anor Vs THE STATE 1964) l All NLR 423; MADU v STATE (2012) LPELR -7867 (SC); ISMAIL v THE STATE (2011)LPELR -9352 (SC).
Finally, it is evident that the deceased person despite the injuries inflicted on him, did not die instantly. Rather, he died in the hospital. The medical report issued by PWS one Dr. lzegbu
Matthew Chukwuma who conducted post-mortem examination on the corpse of the deceased clearly showed vide Exhibit D, that the deceased died due to acute cardio pulmonary failure due to diabetes/hypertension with stab and injuries status post up" PWS further testified that the injuries were not self-inflicted. Again he opined that it could not be said with absolute certainty, that it was the stab wounds inflicted on the deceased that caused his death. Thus, from the medical evidence adduced in the case at the trial court through Exhibit D and the testimony of PW5, it can safely be deduced that the appellant and the co-accused by their action had the knowledge or intent to cause grievous bodily harm only. Certainly, the deceased persons ailments of diabetes and hypertension must have contributed to his unfortunate death. The prosecution, in the light of the aforesaid, cannot be said to have proved the offence of murder or intentionally killing the deceased. At best the prosecution merely proved the offence of manslaughter as rightly found by the two lower courts. In that regard, I resolve the sole issue raised by the respondent which as l said had subsumed the two issues raised in the appellant's brief, in favour of the respondent, against the present appellant.
On the whole the judgment of the lower court is hereby affirmed. The appeal is therefore fails and is dismissed. The conviction and the substituted sentence of the appellant to life imprisonment made by the lower court is hereby affirmed by me.


Appeal is dismissed accordingly.


I have had a preview of the draft copy of the judgment just delivered by my learned brother, Sanusi J SC, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The Law is settled that in criminal cases, the burden of proof that the accused committed the offence for which he is charged lies squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 35(2) of the Evidence Act, Alabi v The State (1993) 7 NWLR (Pt.307) 511 at 531 paras A-C, Solola v The State (2005)5 SC (Pt.1)135.
Although the confessional statement of the Appellant was rejected at the trial court, the evidence of Pw1 and the Appellant were so relevant to the determination of the appeal. Pw1 in his evidence said, when he climbed onto the balcony, because the collapsible door had been locked from inside, he saw the appellant and the co-accused escaped through the back door. This piece of evidence was confirmed by the Appellant in his evidence in chief, when he stated at page 75 paragraph 1 of the record as follows:


We entered the compound of the deceased and saw pw1 sitting under a tree. I greeted pw1 and entered the house. As two of us were going on the steps we saw the deceased sitting on the steps with blood over him and we became afraid and I told 2nd accused that we should go through the back door so that people would not suspect us. The deceased when we saw him sitting on the steps was in a pool of blood but was conscious. When we got outside the house both of us were deliberating how to get the money for the repairs of the car at Ibadan. 
Apart from the fact that the Appellant admitted going through the back door with his accomplice, as alluded to by the PW1, the Appellant could have inquired from the deceased what happened to him since he was conscious, and would have raised alarm in order to attract the neighbours attention, with a view to conveying the deceased to the hospital. Instead of doing that he and his accomplice chose to escape from the scene. The Learned trial judge at page 91 of the record had this to say
I cannot agree with Mr. Jolaoso that the accused persons behave (sic) reasonably in escaping without first raising alarm because 1st accused was afraid and so that they might not be held responsible Mr. Oyefesos submission was that the accused persons did when (sic) ran away for fear of being held responsible is out of the ordinary human experience ....... A reasonable person would have raised an alarm if he had good intentions.
The Court of Appeal at page 180 of the record agreed with the trial court when it said:
Since it was the 1st Appellants evidence that it was the deceased who te
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