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The Circumstantial Evidence

Circumstantial evidence is the evidence not of the fact in issue but of other facts from which the issue can be inferred. Thus, for circumstantial evidence to warrant a conviction, it must be cogent and compelling and there must be no aspect of the case which weakens or destroy any inference as to the guilt of the accused person that could be drawn from the circumstantial evidence.

It must show that the accused person alone had the opportunity of committing the crime and that no other person had the opportunity.

Thus, the following three Nigeria judicial authorities illustrate the instances where circumstantial evidence in a murder can ground a conviction. For instance, in the case of YAKUBU V. STATE (2014) 8  NWLR   206, where the appellant was arraigned with others by the High Court of  Kogi state, Egbe, charged with offences of criminal conspiracy, armed robbery, and culpable homicide.

According to the prosecution, the accused person on or about 6th day of May 2001 at Egbe in Yagba West Local Government Area of  Kogi state murdered a security at Ise Oluwa, sawmill around 12:45 am, stole a sewing machine worth  250,000.00 and loosened and rolled a machine wheel towards an armed vehicle which the appellant conveyed to the scene of the incident.

The appellant was apprehended in the truck at the entrance of the sawmill. The other accused persons who carried out the murder and stealing were later apprehended.

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In the exhibit, the appellant denied knowing that he was going on a stealing expedition. He said, he was engaged by one Kehinde, who claims to own the equipment, to convey them to him at the sum of 20,000.00.

He claimed that he was not aware that the other accused persons were going to carry out a robbery at the Saw Mill, as he believed the engine belongs to the said Kehinde. He, however, admitted that the journey was authorized by his employer.

At the conclusion of the trial, the trial court convicted the accused of offence criminal conspiracy and sentenced him to 10 years imprisonment without the option of fine.

Dissatisfied, the appellant appealed the judgment to the court of Appeal. The court of appeal affirmed the decision of the trial court and dismissed the appeal. A further appeal to the Supreme Court was dismissed.

According to court “In word circumstantial evidence to lead to a conviction, it must be so congested and unequivocal as to point to no other direction but the guilt of the accused.

The quality of evidence must be such as to leave no reasonable grounds for speculation that some other persons other than the accused committed the offence…in the instant case; the facts adduced by the prosecution were in main not in dispute.

Per KEKERE-EKUN, JSC stated thus:

‘One glaring fact, in this case, is the fact that the appellant a driver with the Defense Headquarter Lagos, unofficially and illegally accepted a fee for the hire of one of the army TATA trucks belonging to his employer, the Nigeria Army.

Not only that, he agreed to drive the truck in the company of others all the way from Lagos to Kogi state in the dead of the night for rendezvous at Ise Oluwa Saw Mill at Egbe.

These facts alone suggest the inference that there was an agreement between the appellant and those accompanied him on that journey to do an illegal act.’

ANTHONY OKORO V THE STATE (2012)1 SC pt1 pg 734

The case of the prosecution was that the deceased was the bellman of his church at Umuoloche Umuololo Okigwe, Imo state. On the early hours of 13th October 1987. he went to that church, which was close to his compound, to ring the bell for morning prayers.

On his way back from the church, he was shot. He immediately started shouting, saying “Anthony Okoro has shot me”. His wife heard the gunshot and ran to her dying husband.

She met him holding his neck, which at the time was bleeding profusely. The deceased was crying and saying that the appellant shot him.

A few people came to the scene and arranged to convey the deceased to a nearby hospital and then to the okigwe General Hospital.

On his dying bed, the deceased wrote a statement in the presence of the investigating police officer, stating that the appellant shot him and when his wife visited him he told her that the appellant shot him.

He died the next day, and according to the medical Doctor who performed the post-mortem examination, his death was as a result of wounds consistent with a gunshot.

Consequently, the appellant was charged and arraigned with three other persons on a one-count charge of murder.

Trial commenced on 26th October 1993 in a High Court at Iho, Imo state. Onumaju J presided. Ten witnesses testified for the prosecution. Godwin Okoro, one of the accused persons, was acquitted, withdrawn from the charge and discharged.

The remaining three accused persons gave evidence in their defence. A 4th witness also testified for the accused persons. Thirteen exhibits were received in evidence.

In a considered judgment, the trial court found the appellant guilty of murder and sentenced him to death and discharged and acquitted the two other accused persons.

The appellant’s appeal to the court of appeal was dismissed and his conviction and sentence affirmed by the court of appeal.

A further appeal to the Supreme Court was also dismissed, stating as follows;

On nature of circumstantial evidence required to ground conviction, before an accused person can be convicted on circumstantial evidence, it must be shown that;

  1. The circumstance from which an inference of guilty is at must be cogently and formally established.
  2. The circumstance must point towards the guilt of the accused person and no one else, that means that the conviction based on circumstantial evidence will be justified only where the circumstances are such as to lead to no other conclusion, but that the accused killed the deceased. Circumstantial evidence would sustain a conviction where it is consistent with the guilt of the accused person, but inconsistent with his innocence. In this instant case, the evidence of the PW1, PW2, PW6, PW7 and the content of Exhibit B (the deceased dying declaration) were compelling and conclusive evidence which was positive and unequivocal that the appellant was the one who shot the deceased.

Also in the case of CHRISTIAN NWANKWO V. STATE (2006) 27 WRN 198, where the appellant and three others were charged and for the offence of murder contrary to section 274(1) of the criminal code, volume 2 Laws of Anambra state 1986.

The appellant was found guilty of the said offence and convicted of the said offence and he was sentenced to death.

Dissatisfied, he appealed to the court of appeal. The court of appeal in dismissing the appeal held;

“ It is trite that evidence relied upon to establish a charge of murder may be direct or circumstantial, and it must establish the guilt of an accused beyond reasonable doubt.

It was the view in a plethora of cases that it is no derogation of evidence to conclude that it is circumstantial, as circumstantial is often the best evidence.

It is evidence of surrounding circumstances, which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics.

It must lead to the only conclusion, namely the guilt of the accused. Where there are other possibilities in the case than that it was the accused who committed the offence and that no other than the accused had the opportunity of committing the offence with which he was charged such an accused person can be convicted of the offence.’

However, circumstantial evidence may fail to ground the conviction of the accused on the ground of insufficient circumstantial evidence to prove the offence as charged. These two Nigeria judicial authorities illustrate that;

In the case of  STATE V. OKPALA (2012) 3 NWLR 207-410 SC 388, where the respondent and his son was arraigned for a case of murder. Upon the pleading of not guilty, their trial proceeded. The prosecution called six witnesses, including PW2 and PW6.

The substance of the evidence of PW2 was that the father of the respondent told him that the respondent murdered the deceased and offered to atone for the murder of the deceased in accordance with the custom.

PW6 on his part testified that in the course of his investigation, he obtained statements from respondent’s father and PW4 to the effect that the respondent killed the deceased, although PW4 denied her extrajudicial statements of the two accused persons in evidence.

In defence, the respondent and the 2nd accused person gave evidence denying the offence.

At the end of the trial, the trial court found the respondent guilty of manslaughter but discharged and acquitted the 2nd accused person.

The appeal of the respondent to the court of appeal against his conviction was allowed as the court held that the tried court relied on hearsay evidence to convict him.

However, the court of appeal discharged him but fail to make the order of acquittal.

Dissatisfied, the appellant appealed to the Supreme Court contending that even upon the doctrine of last seen and the circumstantial evidence before the court, the trial court rightly convicted the respondent.

The respondent on his part cross-appealed against the order of discharge made by the court of the appeal contending that he ought to have been acquitted.

The Supreme Court stated that;

“for the court to convict on the circumstantial evidence, such circumstantial evidence should lead irresistibly with compelling cogency to no other conclusion than that the accused was responsible for the offence alleged.

The circumstantial evidence must always be narrowly examined as to the kind that may be fabricated to cast suspicion on another.

The court also considers other co-existing circumstances that can weaken the inference to be drawn.

In the instant case, there was no such evidence because there were too many loose ends that could not just be ignored.

There existed some other circumstances which did indeed weakened or destroyed such inference.


In the words of FABIYI JSC, he states thus;

“for circumstantial evidence to be invoked, it must always be narrowly examined as evidence of this kind, may be fabricated to cast suspicion on another.

Other co-existing circumstance that could weaken the inference to be drawn must be considered.

In this matter, from the evidence of PW1, the time, place, and how the deceased died have not been clearly established.

PW1 felt that the deceased died before he got to the respondent’s compound.

To sustain a conviction in a criminal trial, circumstance evidence must be cogent, complete and unequivocal.”

Also, in the case of ONAH V.STATE (1985) 3 NWLR 236 SC, The appellant was convicted of murder and sentenced to death by the Anambra State High Court.

She was accused of killing her husband, by inflicting matched cut on him. The evidence against the accused was mainly circumstantial.

The corpse of the deceased was found close to her compound. Blood stains were found on her wrapper.

A bloodstained matched was also found in her room which she shared with her husband, matched cuts were found on the deceased body.

However, there was no positive evidence linking the accused with the actual killing of the deceased.

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The prosecution during the trial failed to call a witness one Eke Agbo who seemed to know more than any other else, the circumstances surrounding the killing, and whose evidence could have helped a deal in dealing the case one way or the other.

Nonetheless, the learned trial judge convicted the accused as charged and this was confirmed by the court of the appeal.

The appellant being dissatisfied then appealed to the Supreme Court. The Supreme Court in unanimously allowing the appeal quashed the conviction and sentence and substituted it with a direction of acquittal and discharge relied on the following ratios:

  1. In a criminal case, although the prosecution has the right to call whichever, witness  it considers necessary to prove  the offence  charged, its  failure to call every vital witness whose evidence may determine the case one way or the other, will be fatal to its case
  2. Before a person can be convicted upon circumstantial evidence such evidence must be so mathematically accurate that it points to the one and only irresistible conclusion that that person was the one responsible for the offence for which he has been charged.
  3. Where a prosecution’s case is based upon mere circumstantial evidence which is found to be deficient to the established guilt of the accused the effect is an acquittal for the accused.
  4. Mere suspicion no matter how strong can never found a conviction in absence of cogent and compelling evidence.

In conclusion, circumstantial evidence can only lead to the conviction of the accused on the ground that the circumstances surrounding the offence point to accused person’s direct involvement in committing the crime to the exclusion of any other person.

But where the circumstance is not cogent, and there is an element of doubt and inconsistency in the evidence adduced, it will not lead to the conviction of the accused.

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