IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 18TH DAY OF JULY, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PAUL AHMED BASSI JUSTICE, COURT OF APPEAL
APPEAL NO: CA/LAG/CR/882/2022
BETWEEN:
PETER NIELSEN -------------------------------- APPELLANT
AND
THE STATE OF LAGOS ------------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
As a Defendant, the Appellant was arraigned before the High Court of Lagos State (the lower or trial Court) on a two count Information alleging the commission of the offence of murder. The two-count charge on the Information reads:
STATEMENT OF OFFENCE - COUNT 1
Murder contrary to Section 223 of the Criminal Law, Ch. C17. Vol.3 Laws of Lagos State 2015.
PARTICULARS OF OFFENCE
PETER NIELSEN (M) on the 5th of April, 2018 at about 03:45 hours at Block 4 Flat 17 Bella Vista Tower, Banana Island, Ikoyi, Lagos in the Lagos Judicial Division did murder one Zainab Nielsen (F).
STATEMENT OF OFFENCE - COUNT 2.
Murder contrary to Section 223 of the Criminal Law, Ch. C17. Vol.3 Laws of Lagos State, 2015.
PARTICULARS OF OFFENCE
PETER NIELSEN (M) on the 5th of April, 2018 at about 03:45 hours at Block 4 Flat 17 Bella Vista Tower, Banana Island, Ikoyi, Lagos in the Lagos Judicial Division did murder one Petra Nielsen (F).
The Information dated 30th April, 2018, was preferred by T.K. Shitta-Bey (Ms), Director of Public Prosecution, Lagos State, on behalf of the Attorney-General, Lagos State. The Information was served on the Appellant together with the Proofs of Evidence. Notices of Additional Evidence were also filed and served on the Appellant.
Upon arraignment on 13/06/2018, the Appellant pleaded not guilty to the two-count charge contained in the Information, and the case proceeded to trial. The Prosecution (Respondent) called a total of 9 witnesses and tendered several exhibits in proof of its case. The Defendant (Appellant) also called a total of 9 witnesses, including himself, in defence of the charges preferred against him. The Appellant also tendered several documents as exhibits, some of which were tendered through some of the Prosecution’s witnesses. At the conclusion of trial, learned counsel for the defence and the prosecution filed and exchanged final written addresses which they adopted as their respective submissions before the trial Court. In a considered judgment delivered on 20/05/2022, copied at pages 1531 – 1670 of Volume 3 of the Record of Appeal, the trial Court found the Appellant guilty of the murder of his wife, Zainab Nielsen and daughter, Petra Nielsen, and convicted him accordingly. He was sentenced to death by hanging.
FACTS OF THE CASE
There are two versions to the facts of this case, as told respectively by the Appellant and the Respondent, portions of which I will reproduce from their respective Briefs of Argument.
In pages 1-2 of the Appellant’s Brief, the Appellant briefly sketched the facts as follows:
“… the facts of the case reveal that the Appellant, a foreigner from Denmark, came to Nigeria on business, fell in love, got married and started a family and thereafter, lived happily with his family until the morning of 5 April 2018 when he found his wife and daughter- Zainab (the wife) and Petra Nielsen (the child) respectively, lying motionless and breathless in the kitchen. Pipi, Zainab's 14-year-old half-sister ran downstairs to report to Bella Vista Estate security that the Appellant had killed his wife and daughter. The Bella Vista facility manager called the Ikoyi Police Division to report that two (2) people were dead in their apartment complex and the deceased's husband was said to have been responsible. The police arrived at the apartment of the Appellant and without proper investigation placed the grieving husband and father under arrest. Further to the arrest of the Appellant on the story propagated by Pipi, The Respondent via an Information dated 30 April 2018 (contained at pages 4 and 5 of the Record of Appeal, Vol. 1) preferred a two-count charge of murder contrary to section 223 of the Criminal law of Lagos State, 2015 against the Appellant. The Appellant was arraigned on 13 June 2018 on a two-count charge of murder to which he pleaded not guilty.”
The Respondent stated its own version of the facts of the case in pages 2 - 3 of its Brief, thus:
“The facts which were not in dispute was that on the morning of the 5th of April, 2018, Zainab Nielsen and Petra Nielsen were found dead in the kitchen of Flat 17, 8th Floor, Block 34 Bella Vista Apartments, Banana Island, Lagos. The flat was occupied by the Appellant (only male adult), the decedents (deceaseds) (Zainab and Petra Nielsen), Mimi Madaki (Favour Madaki), Pipi Madaki (Gift Madaki) while Evelyn Gimba (the house-help) lived in the boys-quarter attached to the flat.
By the evidence of (the) Prosecution, in the early morning of 5th April, 2018, Pw1 woke up to start her chores but could not gain access through her usual entrance into the flat which was the door that led to the kitchen from her boys-quarter. According to Pw1 she tried using her key but the door could not open hence, Pw1 had to go down to take the lift to come in through the main front door on the 8th floor which was locked. She knocked on the door and nobody answered until about 7 a.m. when Pw6 (Pipi Madaki) came to open the door. Shortly afterwards, the Appellant was sighted going to the kitchen with a cup he took from his office (he used one of the rooms as his office) and when he opened the door to the kitchen he was heard to have screamed 'Jesus' which attracted Pw1 who got to the kitchen and saw the bodies of both Zainab and Petra on the floor. Pw1 and Pw6 went downstairs to call the security guards while the Appellant carried the body of Zainab to the living room and also directed Pw5 to carry the body of Petra to the living room. The Police were invited and upon investigation, the Appellant was arrested for the murder of Zainab and Petra Nielsen.”
The common denominator in the two narratives is that on the morning of 05/04/2018, the lifeless bodies of Zainab Nielsen, wife of the Appellant, and Petra Nielsen, daughter of the Appellant, who stayed in the same house together with the Appellant and two other girls, were found in the Kitchen of the said house. Who was responsible for the death of the deceased Zainab and Petra, was the one and most important issue in dispute between the parties before the trial Court and this Court. As stated earlier, the trial Court found the Appellant guilty of the offence of murder and convicted and sentenced him accordingly.
Aggrieved with his conviction and sentence, the Appellant approached this Court by filing a Notice of Appeal on 18/08/2022, anchored on 16 grounds of appeal – See pages 1671 – 1700 of the Record of Appeal, Volume 3. He sought for an order of this Court allowing the appeal, an order quashing his conviction and sentence as well as an order discharging and acquitting him.
In due fidelity with the Rules of this Court regulating criminal appeals, parties filed and exchanged written Briefs of Argument. The Appellant’s Brief of Argument, settled by Olasupo Shasore, SAN, with Uyiekpen Giwa-Osagie, Atilolaoluwa Taiwo-Nsirim and Tochukwu V. Amaefule, was filed on 24/11/2022. The Respondent’s Brief of Argument, on the other hand, was settled by Adebayo Haroun, Deputy Director, Ministry of Justice, Lagos State, with Jonathan Ogunsanya, Deputy Director and Jubril Kazeem, Senior State Counsel, and filed on 22/03/2023. The Appellant filed a Reply Brief on 26/02/2024. Both the Appellant and the Respondent Briefs, together with the Reply Brief were deemed as properly filed and served on 23/05/2024 when the appeal came up for hearing.
Learned Senior counsel for the Appellant, Olasupo Shasore, SAN, leading T. V. Amaefule and C.C. Amakwor, adopted the Appellant’s Brief and the Reply Brief in urging the Court to allow the appeal. With the leave of Court, counsel orally adumbrated on the salient points of his argument as contained in the Brief of Argument, stating why the appeal should be allowed.
On behalf of the Respondent, Lawal Pedro, SAN, Attorney General of Lagos State, leading A.P. Ameh (Private Legal Practitioner), Mrs. E.R. Agu (Deputy Director) and Mrs. O. Osunsanya (Chief State Counsel), adopted the Respondent’s Brief in urging the Court to dismiss the appeal.
Like his counterpart for the Appellant, the learned Attorney General also adumbrated on his argument in support of the contention that the appeal be dismissed.
In the Appellant’s Brief of Argument, eight (8) issues were nominated for determination, as follows:
On behalf of the Respondent, the following three (3) issues were submitted for the determination of the appeal.
APPELLANT’S ARGUMENT
In arguing issue 1 of the Appellant’s Brief, learned senior counsel, Olasupo Shasore, contended that apart from the fact that the lower Court denied the Appellant access to material evidence at trial, it also failed to properly evaluate available evidence capable of tilting the case in favour of the Appellant. While citing the provision of section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the cases of Nweke vs. The State (2017) LPELR-42103 (SC); Okoye & Ors vs. COP (2015) LPELR-24675 (SC), the learned silk submitted that the refusal of the lower Court to grant the Appellant access to the nightdresses of the Appellant’s late wife, despite his applications for same, amounts to a denial of the Appellant’s right to reasonable facilities and by extension denial of Appellant’s right to a fair hearing. He contended that the lower Court, worse still, also refused to evaluate evidence on the said night dresses adduced at trial, submitting that evidence adduced by PW9 and DW6 was manifestly exculpatory to the Appellant.
He argued for the Appellant that the evidence elicited in the report tendered by PW9 showed that there was, found on the deceased’s night dresses, DNA of another man and not that of the Appellant, submitting in the circumstance, that the Appellant, having been denied access to the said exhibits, can only rely on the report which was said to be containing the exculpatory evidence. Mr. Shasore contended that there was a probability of the involvement of a third party whose DNA was reportedly detected on Zainab’s nightdresses. He stressed that the Appellant cannot be denied of the right in any way, nor can the lower Court validly exclude or fail to evaluate material evidence.
Counsel submitted, vide the following cases: Okanlawon & Ors vs. Nkanu Interbiz (Nig) Ltd & Ors (2020) LPELR-51793 (CA); Musa vs. State (2019) LPELR-46350 (SC) and Adamu & Ors vs. The State (1991) LPELR-73 (SC), that the failure and/or refusal of the lower Court in excluding the evidence breached the Appellant’s right to a fair hearing. He urged the court to so hold.
On issue 2, learned silk contended that the lower Court erred in law when it placed reliance on certain scientific documents, not tendered in evidence at trial as exhibits, to arrive at its finding to the effect that Appellant’s witness, DW8, failed to buttress his opinions tendered in evidence. Learned counsel stated the law that the lower Court was bound to draw its decision on evidence adduced at trial and not on extraneous facts.
He noted that nowhere in the Record was evidence led on "Scientific Journal Publication on Fatal suffocation” and S. Sharma and M. Pal (2020) “Fingernail DNA as a Forensic Tool in crime investigation, Seybad Report 15 (7) 1291-1311”. He cited the decision in State vs. Solomon (2021) 13 NWLR (Pt. 1793) 301 in submitting that the documents were foreign to the Record of the lower Court, and ought, therefore, not to form the basis for its decision.
It was submitted, vide section 68 of the Evidence Act, 2011, and the case of Joseph vs. The State (2021) LPELR-56348 (CA), that the lower Court was in error by forming opinion on evidence not given and admitted at trial by an expert on the subject covered in the report. The court was urged to so hold and resolve issue 2 in favour of the Appellant.
On whether the prosecution succeeded in proving the cause of death of both victims, Zainab, and Petra Nielson, Mr. Shasore, SAN, opined that the finding of the lower Court that the deaths of deceased was caused by asphyxia pursuant to PW4’s report in Exhibits PWG1 and PWG2, was wrong and erroneous, contending that the said evidence had been substantially controverted and cannot be validly treated as an expert opinion as the proof of the cause of death of the deceased.
It was argued that the lower Court misdirected itself when it held that the evidence of DW8 was not comprehensive on whether the cause of death is natural or by accident. Counsel contended that neither PW4 nor DW8 reconducted any further autopsy or examination on the bodies of the deceased, but rather reviewed the report of the examinations carried out by the PW4 in the report tendered in evidence. It was stated that DW8 only pointed out that the report of the PW4 was dearth of the cause of the death of the deceased. It was argued that the PW4 failed to point out how the Appellant asphyxiated the deceased. He submitted that the lower court misdirected itself when it found that further examination was conducted and testified to by the PW4 at trial and that the finding led to the wrong decision arrived at.
It was further argued that nowhere on Record could it be found that DW8 gave evidence of a definite cause of death. Counsel stated that the DW8, upon review of the evidence of PW4, testified that the cause of death was undetermined, submitting that there was the lack of evidence to draw appropriate conclusion to justify the conclusion of asphyxia as the cause of death, not even the pictorial evidence taken during the autopsy can ground the conclusions reached therein.
In view of this, the learned silk maintained that the lower Court, contrary to its Record and evidence, misdirected itself as to the evidence adduced by DW8 thereby arrived at perverse conclusion that DW8 gave unsubstantiated evidence of the cause of death.
Counsel restated the law vide the cases of Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65; Omezeghian vs. Adjarho (2006) 4 NWLR (PL 969) 33 and Emeka vs. Chuba Ikpeazu (2017) 15 NWLR (PL. 1589) 345 that the lower Court ought to base its decision on credible and uncontroverted evidence. He submitted that the evidence of the prosecution was effectively challenged by the DW8 that there was no conclusive proof of the cause of death in the instant case. He urged the court to so find.
It was further contended that the evidence of PW4 failed to meet the requisite standard of an expert opinion as it failed to contain detailed analyses of experiments and examinations carried out and observations made to justify the conclusions reached. Citing the cases of Tyonex Nig. Lid & Anor vs. Pfizer Lad (2019) LPELR-49520(SC); Udom vs. Umana (No. 1) (2016) 12 NWLR (PL. 1526) 179 at 241-242, to buttress the submission, the Court was urged not to attach any weight to the evidence of PW4 as same cannot pass for a credible expert evidence. He cited the case of Ekaidem v. The State (2011) LPELR-4076 (CA) to contend that the Respondent failed to prove the requisite ingredient of the offence with which the Appellant was convicted, and therefore urged the Court to hold that the evidence of PW4 was effectively controverted and that the Respondent was unable to prove the cause of death of the deceased persons.
In arguing the Appellant’s issue 4, earned senior counsel contended that the evidence adduced at trial by DW1 was relevant and effectually contradicted the evidence of PW6, contrary to the erroneous held by the lower Court that the evidence of DWI was not relevant and did not contradict the evidence of PW6. In support of this submission, counsel relied on the cases of Muhammad vs. The State (2021) LPELR-55793 (CA); Bello vs. The State (2021) LPELR-55544 (CA), Bassey vs. The State (2012) 12 NWLR (Pt. 1314) 209, Jeremiah vs. The State (2012) 14 NWLR (Pt. 1320) 248; Egwumi vs. The State (2013) 13 NWLR (Pt. 1372) 525.
In the proof of his contention that the evidence of DW1 was relevant, counsel cited the provision of Section 9 of the Evidence Act, 2011, and the cases of Owhoeri & Ors vs. Ikanone (1993) LPELR-14516(CA) and El-Michelle Ltd & Anor vs. Pelomeach Ltd (2021) LPELR-56273(CA) to argue that, given the circumstances of the case, the evidence of DWI is very relevant and was capable in assisting the lower Court to determine the possibility of whether or not PW6 could see the inside of the master’s bedroom from the children's bedroom, as adduced in evidence by PW6 during trial. It was argued that evidence of DW1 was in sharp contrast with evidence of PW6 who claimed she was able to view the Appellant's bedroom from behind the children's bedroom door and actual location of the Appellant's bedroom in the apartment. Learned counsel argued that the evidence of DW1 makes that of PW6 highly improbable vide the provision of Section 9 of the Evidence Act, 2011 and the authorities of Muhammad vs. The State (supra) and Bello vs. The State (supra). Leaned silk submitted that evidence of DW1 was relevant, and that the lower Court was led into error to have held otherwise.
Counsel relied on section 167 of the Evidence Act, 2011 and reasoned that the Appellant and his late wife would have logicall;y closed the door to their bedroom making impossible the visibility claimed by PW 6 in her testimony which is capable of contradicting the entire relevant evidence of the PW6 in the case. The Court was urged to so hold.
Learned SAN argued further in issue 5 that in view of the Appellant’s submission in issue 4, PW6 was not a credible witness with her evidence been highly improbable in the circumstances. It was contended vide the case of Omezeghian vs. Adjarho, (supra), that the lower Court was in error when it wrongfully robed the evidence of PW6 as credible evidence of an eyewitness. Counsel highlighted several inconsistencies which, in his view, riddled the testimony of PW6 during cross-examination in the lower Court, which renders it manifestly incredible, relying on the cases of Ezemba vs. Ibeneme (2004) 14 NWLR (Pt. 894) 617 and Ebulue & Ors v. Ezebuo (2018) LPELR-44685 (CA).
It was further contended that the evidence of both PW5 and PW9 could not validly corroborate evidence adduced by PW6. He noted that PW5, being 11 years old at the time, was incapable of giving evidence to corroborate the evidence of PW6. He placed reliance on Section 209(3) of the Evidence Act, 2011, and the cases of Musa vs. The State (2013) LPELR-19932 (SC); Uzoma vs. COP (2021) LPELR-55919 (CA) to submit that unsworn evidence adduced by PW5 needs corroboration on its own and could not therefore corroborate any evidence. Ditto for PW9, whose evidence does not in any way corroborate the evidence of PW6. The Appellant submitted that both the evidence of PW5 and PW9 failed to meet the requirements of corroborative evidence and as such, the lower Court was in grave error of law to have treated the evidence as corroborative evidence. He urged the Court to so hold and resolve issue 5 in favour of the Appellant.
On whether the evidence shows that there was a struggle between the Appellant and Zainab and that the blood droplets found in the apartment was that of the deceased, Zainab, the Appellant contended that the lower Court erred in holding that the fingernail scrapings from Zainab showed signs of a struggle and was a misdirection of the evidence adduced at trial.
It was the Appellant’s contention that there exists no proof to establish that the fingernail scrapings were from struggle between the Zainab and the Appellant.
The Appellant asserted that the said findings of the Lower Court were not borne out of evidence adduced at trial.
It was posited that the blood droplets found in the kitchen neither originated from the bedroom nor proved to be late Zainab's blood. Counsel for the Appellant argued that the lower Court was bound by the Record before it and ought to be so guided by the said Record. He cited the cases of Sommer vs. Federal Housing Authority (1992) LPELR-3103 (SC); Abdulahi & Anor vs. Amana (2021) LPELR-58345 (CA); Lucky v. The State (2016) LPELR- 40541 (SC) and Okeke v. The State (2003) 12 NWLR (Pt. 842) 25 @ 103 to submit that the finding of the Lower Court that the blood found in the bedroom and lobby belonged to Zainab was based on mere speculation and was unsupported by fact adduced in evidence, urging the Court was urged to so hold.
The Appellant argued that nothing was placed on Record in proof of the finding of the lower Court that there was a struggle between the Appellant and deceased Zainab.
It was argued that PW9 was not competent to give opinion evidence of the circumstance of criminal activities, as he was said to be certified as a crime scene processor and not a crime scene investigator. Counsel referred to Section 68 of the Evidence Act, 2011 and the case of Ahmed Ibrahim Shanono Investment Ltd vs. FCMB Plc (2014) LPELR-22918 (CA) and submitted that PW9 testified outside of his expertise and without providing the scientific criteria for testing the accuracy of his conclusion.
It was also contended that the finding of the lower Court that there were bruises on the deceased's neck, was unsupported by any evidence adduced, as PW4 who conducted the post mortem examination did not give such evidence.
Counsel surmised that the finding of the lower Court in that regard was unsupported by evidence and therefore perverse, properly deserving of being overturned. The Appellant contended that the findings by the lower Court of evidence of struggle between the Appellant and his deceased wife was not supported by any credible evidence. He urged the Court to resolve issue 6 in favour of the Appellant.
On whether or not there was credible evidence that the Appellant physically abused the deceased, the Appellant contended that there existed no credible evidence to justify the decision of the lower court that the Appellant physically abused his wife- Zainab. It was the contention of the Appellant that evidence of his bad character ought not to be made an issue having not been a fact in issue or that he had alleged his good character. Reference was made to section 82(1) of the Evidence Act, 2011 and the case of Musa vs. The State (2012) LPELR-20428 (CA) to submit that evidence of the Appellant’s bad character to the deceased is not admissible in the determination of the question of his guilt in the instant case. The case of Odogwu vs. The State (2013) 14 NWLR (Pt. 1373) 75 was further cited in support of the assertion.
It was the Appellant’s submission that the Lower Court erred to have allowed the Respondent adduce evidence which tend to portray him in bad light and as a person of questionable character, he having not given any evidence of his good character.
The Appellant further submitted that the evidence of PW1 and PW3 amount to hearsay and ought to be expunged in line with sections 37, 38, 40 and 49 0f the Evidence Act, 2011, citing the cases of Makanjuola vs. The State (2021) 15 NWLR (pt. 1799) 229 @ 263; Odogwu vs. The State (supra) @ 103-104; Enebeli v. The State (2021) LPELR-54990 (SC).
The court was urged to so hold that the allegation of assault by the Appellant on the person of Zainab could not be proved as there was no admissible evidence to that effect. He also contended that evidence of bad character against him was inadmissible and urged the court to expunge it from the Record and resolve issue 7 in favour of the Appellant.
Finally, on the issue of whether or not the Respondent proved its case against the Appellant beyond reasonable doubt, counsel relied on section 135 of the Evidence Act, 2011 and the case of Kalgo vs. The State (2021) 10 NWLR (Pt. 1784) 309 at 324-325 to submit that the Respondent had the burden of proving the guilt of the Appellant beyond reasonable doubt. Counsel contended that the prosecution failed to adduce any credible evidence, rather it adduced inadmissible and incoherent evidence in proof of its case.
He reiterated that the Respondent also failed to prove by credible, cogent and convincing evidence that the Appellant committed the murder of Zainab Nielsen and therefore the lower Court cannot validly convict him, as it did, citing the cases of The State vs. Aniakor & Ors (2016) LPELR-41040 (CA) and Ekaidem vs. The State (2011) LPELR-4076 (CA). It was contended that the lower Court not only misdirected itself as to evidence of the Respondent but failed to properly evaluate the evidence adduced by the defence witnesses at trial.
It was particularly argued that the Lower Court failed to consider the evidence of the possible breaking-in on 5th April, 2018 given by the DW1 and DW5 and also to explore the footage of the CCTV of all entry and exit into the building on the fateful date. The case of Odogwu v. The State (supra) page 115, was cited to submit that the CCTV footage contained exculpatory evidence in favour of the Appellant.
It was contended that the lower Court was wrong to have held that the Appellant failed to prove that a third party committed the crime and not him. Relying on Section 36(5) of the Constitution and the case of Ogungbaiye v. FRN (2022) LPELR-57269(CA), the Appellant argued that he is not required to prove his innocence even by way of third-party culpability. The case of Orisa v. The State (2018) 11 NWLR (Pt. 1631) 457 was cited to submit that the doubt created must be resolved in favour of the Appellant, urging the court to so hold. The Court was urged to allow the appeal, set aside the conviction and the sentence, and to discharge and acquit the Appellant.
RESPONDENT’S ARGUMENT
In response, the Respondent restated the law on burden of proof in criminal cases to be beyond reasonable doubt with the condition that such burden must be fully discharged before there could be any conviction on the alleged offence by any Court of trial; the case of Olanrewaju vs. State (2023) LPELR-59947 (SC) was cited in support of the supposition.
The learned Deputy Director, in the Lagos State Ministry of Justice, Adebayo Haroun, who settled the Respondent’s Brief, along with Jonathan Ogunsanya, Deputy Director and Jubril Kazeem, Senior State Counsel, stated that the prosecution is not, however, required to prove the guilt of a defendant beyond all shadow of doubt, in line with the cases of Egbertamu vs. State (2022) LPELR-58933 (SC); Sunday vs. State (2014) LPELR-24415 (CA) (Pp. 32-33), and that it suffices if the prosecution could either prove its case by the confessional statement of the Defendant; circumstantial evidence and or eyewitness evidence as held in the case of Muhammed vs. State (2022) LPELR-58929 (SC).
The Respondent contended that it succeeded in proving the guilt of the Appellant by evidence of an eyewitness; PW6 as well as countless circumstantial evidence in the testimonies of witnesses before the lower Court, relying on the cases of Idiok vs. State (2008) LPELR-1423 (SC) and Abokokuyanro vs. State (2016) LPELR-40107 (SC) (Pp. 9-10 paras. D), where the ingredients of the offence of murder was highlighted. It was stated that the deaths of both Zainab and Petra Nielsen were both unnatural and accidental.
It was the learned counsel’s contention that the lower Court considered the evidence of PW6, an eyewitness who narrated the event of the fateful day, and that the said evidence of PW6 was unshaken even under the fire of cross-examination.
It was submitted for the Respondent that the lower Court was right in accepting the evidence of PW6 as an eyewitness, citing the case of Abel vs. State (2023) LPELR-60560 (CA) (Pp. 18 paras. A) in support of the submission.
Citing further the cases of Thomas Bitrus v. State (2021) LPELR-56235 (CA) (Pp. 34- 35 paras. C) which relied on the case of Etim Udo v. The State (2018) LPELR-43707 (SC); Oguonzee v. State (1998) LPELR-2357 (SC), the Respondent submitted that it is the duty of the lower Court to ascertain the credibility of the witnesses.
The learned Director submitted that the evidence of PW6 was consistent with the forensic evidence of PW4 and PW9 adduced at the lower Court, and therefore, the lower Court rightly relied on the evidence of PW 6, being credible and consistent and having not been shaken under the fire of cross-examination; Ataguba v. COP (2011) LPELR-3845 (CA), was cited in support.
The Respondent underscored the importance of forensic evidence in determining culpability in criminal prosecution, stating that it was not strange in the country, citing the case of Shonubi vs. People Of Lagos State (2015) LPELR-24807(CA) (Pp. 31-52).
It was also submitted that the circumstantial evidence reinforced the evidence of other witnesses, to wit PW4 and PW9 with their reports, PWG1 and PWG2, each of which pointed at the Appellant as the offender in the circumstance of the case. The cases of kwenev vs. State (2022) LPELR-57561(SC) (Pp. 87-88 paras. C), Nasiru vs. State (2021) LPELR-55637(SC) (Pp. 23-24 paras D-D) were referred to when submitting that the only conclusion that could be drawn is that the Appellant caused the death of his deceased wife. The Court was urged to resolve the issue in favour of the Respondent.
On whether or not the Appellant was denied access to material evidence and reasonable facilities for his defence, the Respondent noted that the Exhibits in issue were lost during the National unrest sometimes ago, and that the lower Court, in conclusion, had to expunge the Exhibits together with the oral evidence adduced thereon. The cases of Attorney General of Lagos State vs. Mamman Keita (2016) LPELR-40163 (CA); Agboola vs. State (2011) LPELR-8948 (CA), were cited to submit that the expunged evidence no longer has any evidential value. It was argued that the lower Court carefully considered the exculpatory pieces of evidence presented by the Appellant, and also equally analyzed the defence put up by the Appellant when he testified.
It was contended that the defence put by the Appellant in his testimony was at variance with his extra judicial statements to the Police admitted as Exhibits M1 and M2. The case of Obeneye v. State (2022) LPELR-59112(CA) (Pp. 29-30 paras. B) was cited to submit that Appellant’s testimony was fraught with afterthought.
The Respondent cited again the case of Shonubi vs. People of Lagos State (supra), to submit that the lower Court was correct by its reference to the scientific journal and reports. It was submitted that Section 68 of the Evidence Act, referred to by the Appellant was inapplicable in this instance, as evidence had already been placed before the lower Court who has the primary duty to evaluate same, a duty which the lower Court had carefully discharged. The case of Olakunle vs. State (2017) LPELR-48000(SC) (Pp. 33-34 paras. D) was cited to submit that the appellate Court has no reason to interfere with the findings of the trial Court.
On the proof of cause of death, Respondent’s counsel argued that the cause of death of the deceased was sufficiently proved, that it was neither as a result of gas poisoning nor was there any break-in into the apartment alluding to a thirdparty intervention, maintaining that the defence of the Appellant was an afterthought as was held in the case of Lawal vs. State (2010) LPELR- 4622 (CA).
The Court was urged to resolve the issue in favour of the Respondent.
On whether or not the perceived contradiction in the evidence of the Prosecution and Appellant’s witnesses was so substantial as to affect the ingredients of murder requiring the Court to set aside the judgment of the lower court, it was stated that the evidence of DW1, not been an eyewitness, was not in the position to contradict the evidence of PW6, an eyewitness’ account. It was stated, on the strength of the case of Dibie & Ors vs. State (2007) LPELR-941(SC) (PP. 31 PARAS. A), that contradiction in the evidence of the prosecution, in the circumstances, would not be resolved in favour of the Appellant. It was contended that Court will act on the evidence of an eyewitness who saw the act been complained of rather than hearsay evidence, buttressing the submission with the case of Ohakpougwo vs. State (2021) LPELR-54910 (CA). Counsel urged the Court to resolve the issue in favour of the Respondent.
In his response to the Appellant’s issue 7, counsel for the Respondent noted that despite the Appellant’s reference to himself as a loving and good husband, evidence adduced in Exhibits 01 and 02 went contrary to the said testimony of the Appellant. Reliance was placed on section 82(1) of the Evidence Act, 2011, and the case of Makanjuola vs. State (2021) LPELR-54998 (SC) and Okon vs. State (2014) LPELR (CA), when concluding that justice is three-way traffic, to the accused, to the victim and to the society at large, urging the Court in the circumstances to dismiss the appeal and uphold the judgment of the lower Court.
It is to be noted that the Appellant also filed a Reply Brief as earlier noted, however, the Reply Brief was more of a rehash of the argument of the Appellant in the main Appellant’s Brief of Argument. In the Reply Brief, the Appellant reiterated the same arguments and cited the same additional cases, as in his main Brief, contrary to the role and purport of a Reply Brief. A Reply Brief is limited to finding answers to the questions raised in the Respondent's Brief which the Appellant has not addressed or dealt with in the Appellant’s Brief.
A Reply Briefis not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein; FRN vs. Iweka (2011) LPELR-9350 (SC) and Idagu v. State (2018) LPELR-44343 (SC).
Ordinarily, I ought to have discountenanced the Reply Brief but in order to do substantial justice, the outline of the Reply is highlighted herein; that the decision of the lower Court was unfounded and thereby perverse for the failure to consider exculpatory and relevant evidence and want of credible and reasonable evidence which assumed that the Appellant and no one else murdered Zainab Nielsen and Petra Nielsen. The cases of Atolagbe vs. Shorun (1985) 1 N.W.L.R. (Pt. 2) 360 @ 375; Baridam v. State (1994) LPELR-753 (SC); Adimora vs. Ajufo & Ors (1988) 3 N.W.L.R. (Pt.80) 1 @ 16; Ihunwo vs. Ihunwo & Ors (2013) LPELR-20084 (SC); Sansani vs. State (2022) LPELR-57954 (SC); Ofuani vs. Nigerian Navy & Anor (2006) LPELR-5813(CA), amongst others, were cited in addition.
In reply to the Respondent’s issue 2, the Appellant contended that the lower Court failed to evaluate exculpatory evidence adduced by the prosecution which shows a probability of third-party culpability (unknown DNA found on Zainab Nielsen), and non-involvement of the Appellant in the death of Petra Nielsen. The Appellant, in addition, cited the following cases Ibrahim vs. Ogunleye (2012) 1 NWLR (Pt. 1282) 489 at 509; Akoledowo vs. Ojubutu (2012) 16 NWLR (Pt. 1325) 1; Fatai vs. State (2013) 10 NWLR (Pt. 1361) 1]; Bello vs. Ohikhueme & Ors (2014) LPELR-24412 (CA); Edebi vs. Saidi (2020) LPELR-50766 (CA), in support of his assertion.
In his conclusion, the Appellant asserted that the evidence of DW1 manifestly contradicts and controverts the evidence of PW6 and renders it improbable in the circumstance and thereby unworthy of belief as an eyewitness testimony, placing reliance on the cases of Bassey vs. State (2012) LPELR- 7813 (SC); Adoba vs. State (2018) LPELR-44065 (SC); Ugoala vs. State of Lagos (2020) LPELR-55597 (CA); Magaji vs. Nigerian Army (2008) LPELR-1814 (SC); Shurumo vs. State (2010) LPELR-3069 (SC).
He prayed the court to allow the appeal and set aside the conviction and sentence passed by the lower Court
RESOLUTION
In resolving the issues in the instant appeal, regard shall be had to the undeniable thread which passes through the respective case of the parties in the instant appeal.
As earlier adverted, the case was that there was an instance of a double homicide, the Appellant was closely linked to the commission of the crime and the attendant denial of the commission of the said crime. A cursory perusal of the argument canvassed by parties in the appeal shows clearly that the crux of the Appellant’s contention is basically on the evaluation of the evidence adduced at trial by the Appellant and the Respondent alike; another like it been whether the guilt of the Appellant was proved beyond reasonable doubt. Given this, I take the view, for reason of clarity and precision vide the case of Ukpong vs. State (2019) LPELR-46427 (SC) (Pp. 4-5 paras. C), that only two issues are determinative of this appeal as borne out of the grounds of appeal, to wit;
I shall take the liberty afforded this Court, in the resolution of the reframed issues for determination in this appeal, to treat the two reformulated and interwoven issues not in any particular order. See: Ajiboye vs. FRN (2018) LPELR-44468 (SC) (Pp. 45-46 paras. D); Obaje v. NAMA (2023) LPELR-61645 (SC) (Pp. 42-44 paras. B)
It is on record that the Appellant was charged with the offence of murder contrary to Section 223 of the Criminal Law, Ch C17, Vol. 3 Laws of Lagos State, 2015. He was tried, convicted and sentenced for the offence. He was convicted for the murder of Zainab Nielsen and Petra Nielsen, his wife and daughter respectively, and was consequently sentenced to death by hanging.
On whether the prosecution proved the guilt of the Appellant beyond reasonable doubt, learned counsel for the Appellant contended that the Respondent failed to prove the ingredients of the offence charged. It was particularly contended that the Prosecution witness, PW4, failed to adduce credible and uncontradicted evidence of the cause of death of the deceased, Zainab, as he failed to proffer scientific analysis in support of his evidence. It was submitted that the lower Court erred when it convicted the Appellant when indeed the cause of death of the deceased Zainab was unknown.
The Supreme Court, in the case of Idiok vs. State (2008) LPELR-1423 (SC) (Pp. 23 paras. A), restated the law that in a charge of murder, the prosecution must prove the following ingredients for conviction to be grounded, the ingredients are:
1. The deceased died.
2. The deceased died as a result of the act and conduct or omission of the accused.
3. If the deceased did not die immediately from the act, conduct or omission of the accused, the prosecution must prove that he died thereafter as a direct result of the act, conduct or omission of the accused.
The Apex Court, added that;
In other words, if the deceased died as a result of harm or injury; such harm or injury must be traced directly to the act, conduct and omission of the accused. Where there is any intervening force or factor, a Court of law will not find the accused guilty of the charge of murder. See The State v Aibangbee (1988) 3 NWLR (Pt. 84) 548, Okoro v The State (1988) 5 NWLR (Pt. 94) 255. The offence of murder, like all other offences, can be proved either by direct evidence or by circumstantial evidence. Direct evidence is evidence given by a witness who saw and watched the act of killing or murder. Circumstantial evidence is evidence given by a person who did not see or watch the act of killing or murder but whose evidence unequivocally leads to the commission of the offence by the accused person."
The Appellant did not contest the first leg of the ingredients, as he was fully aware that the deceased, Zainab and Petra Nielsen, his late wife and daughter, respectively, died in the wee hours of 5th April, 2018, while the whole family were still in bed, but the killer and the manner of the death is what is in the contest between the parties herein.
The lower Court was inundated with witnesses’ testimonies as well as documentary evidence in proof of the death of the deceased such as pictorial evidence of Zainab’s and Petra’s corpses upon the identification of same by PW7, the Police officer called on the day of the incidence. There is also the report of post mortem investigations, amongst other investigations carried out on the bodies, all pointing to the fact of death of Zainab Nielsen and Petra Nielsen.
Having been able to prove that the deceased persons indeed died, the Respondent contended that the cause of death was sufficiently proved by both eyewitness accounts and circumstantial evidence, both being corroborated by the report of ranges of scientific examinations carried out on sundry samples taken from the corpses of the deceased, with the accusing fingers conspicuously pointed at the Appellant, who was the sole male in the apartment of 5 inhabitants, mostly underaged females.
The million-naira question begging for an answer is who killed the deceased persons in the manner and circumstances of their death as reported? Appropriate answer to this puzzle, shall clear the doubt on the second leg of the ingredients of the offence of murder with which the Appellant was charged.
The prosecution called a number of 9 witnesses through whom several documentary Exhibits were tendered.
In her considered opinion, the learned trial Judge, after listening to the parties and the testimonies of their witnesses, stated thus;
I have had time and opportunity to evaluate the evidence of each witness both (for) the Prosecution and Defense. I have examined each document, exhibit tendered on behalf of the Prosecution and Defense including CD and flash drive, which (I) ascribed probative value and weight where necessary.
I have heard the evidence of the Defendant himself, I also expunged EXHIBIT PWN, PWO1, PWO2 and PWO3 for reasons that the Defendant could not examine some due to the unfortunate loss of the items, I say and hold.
I am very satisfied and I do not have doubt in my mind that the totality of the evidence before this Court points to the direct involvement of no one else, no other person but PETER NIELSEN, the Defendant.
On whether the prosecution proved its case in the circumstance, the learned trial Judge held thus:
I hold without hesitation that the Prosecution in both Counts have proved beyond reasonable doubt the death, the cause of death of the victims and Peter Nielsen caused the death of both victims Zainab and Petra. Peter Nielsen had pleaded to the Court to find the killer of his beloved wife and beautiful daughter.
It is trite that the Prosecution do not have the burden of proof beyond every iota of doubt, I find they have discharged the burden of proof placed upon them and I so hold ………..
The lower Court proceeded to convict the Appellant for the offence with which he was charged and consequently sentenced him accordingly.
I am in agreement with learned counsel for the Respondent that proof beyond reasonable doubt does not mean proof with a mathematical certainty. It is neither a proof to a hilt nor one beyond all possible doubts. See: Mohammed vs. State (2021) LPELR-58385 (SC); Ebenezer vs. State (2022) LPELR-59167 (SC); Ahuchaogu vs. State (2024) LPELR-62194 (SC).
A charge is sufficiently proved when the facts and circumstances of the case and the quality of evidence adduced are compelling and reliable to establish the guilt of the Defendant. There must be a high degree of probability that the Defendant committed the offence. The doubt must be of a reasonable man and the standard must also be of a reasonable man. See: Isah vs. State (2017) LPELR-43472 (SC) (Pp. 16-17 paras. F); Mohammed vs. State (2021) LPELR-58385 (SC) (Pp. 9-10 paras. A)
The Apex court in Mohammed vs. State (2022) LPELR-58929 (SC) stated at pages 16-17, that:
The burden on the prosecution of establishing the guilt of an accused person beyond reasonable doubt is no doubt onerous. However, it has been held in numerous cases decided by this Court, that proof beyond reasonable doubt does not mean proof beyond all shadow of a doubt. In Afolalu vs The State (2010) LPELR - 197(SC) @ 21 B - F; (2010) 16 NWLR (Pt. 1220) 584, His Lordship, Ibrahim Tanko Muhammad, JSC (as he then was, now CJN) held inter alia:
"It is always helpful ... to remember the age long established principle of law that "proof beyond reasonable doubt "Is not "proof beyond shadow of doubt. "It is not therefore, a proof beyond all possible or imaginary doubt that it is such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof "to moral certainty," such proof as satisfies the judgment and the conscience of the Judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial Judge. See R V. Lawrence (1932) 11 NLR 6 at 27; R V Mofor (1944) 10 WACA 251.
The duty placed on the Prosecution to prove the guilt of the Appellant, is by no means, an easy task, this is so because any reasonable doubt created in the course of proving his guilt of the commission of the offence under focus, perforce of law, must be resolved in favour of the Appellant. In the case of Omoregie vs. State (2017) LPELR-42466 (SC) (Pp. 15-16 paras. E), the Supreme Court stated the law thus;
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 KRs (1957)5 FSC 83; LORI v STATE [1980] 11 SC 81; IJIOFOR v STATE [2001] 3 NWLR (Pt.690) 55.
See also: Bolanle vs. State (2009) LPELR-788 (SC) (Pp. 8 paras. D)
How then is the burden of proof discharged? It is trite that the burden of proving the guilt of an accused person, as placed on the prosecution by law, can be discharged in any of the following ways; by
See: Isah vs. State (2017) (supra); Igbale v. State (2006) 2 SC (Pt II) 61
In the instant appeal, the prosecution placed robust reliance on the later twain methods in the discharge of the imposed duty of proving the guilt of the Appellant.
I have carefully read through the cold record before the Court, particularly the evidence adduced by parties and their respective witnesses. It is crystal clear that the prosecution; who like the Appellant, called a total number of 9 witnesses in the lower Court, relied majorly on the eyewitness account of PW6; a 13 years old sister of late Zainab, who reportedly witnessed the incident, there was also an 11-year-old PW5, an eyewitness to the incident too, and also the report of the Forensic Analysis tendered in evidence by PW4 and the evidence of PW9, the Director of the Lagos State DNA and Forensic Centre, all these played vital roles in the effort of the Prosecution to prove the case of murder of the duo of Zainab and Petra Nielsen against the Appellant herein.
It cannot be gainsaid that, of particular importance is the circumstances surrounding the whole event, prompting the lower Court to hold that the guilt of the commission of the offence in issue be laid at the doorstep of the Appellant. The lower Court was satisfied that there abounds strong circumstantial evidence pinning the Appellant as the perpetrator of the heinous crime with which he was charged.
In the decision of the learned trial Judge, portion of which was reproduced supra, one could observe a careful analysis of the evaluation of the evidence adduced before the lower Court by the parties’ witnesses and the ascription of probative values to same. I am not in doubt that the lower Court’s evaluation of the evidence adduced by the parties at the trial was thorough, it was no way sordid.
It is trite that the lower Court, being the trial Court has the prerogative of the duty in that regard. The Supreme Court in; Arije v. Arije & Ors (2018) LPELR-44193 (SC) (Pp. 21-22 paras. F) stated the law thus:
It is well settled that the evaluation of evidence is primarily the exclusive preserve of the trial Court, which has the unique opportunity of seeing and hearing the witnesses testify and of observing their demeanour. However, both the trial Judge and the appellate Courts have equal rights to evaluate documentary evidence. Where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just Conclusion. See: Gonzee Nig. Ltd. vs. Nigerian Educational Research and Devt. Council & Ors. (2005) 13 NWLR (Pt. 943) 634; Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745; Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308; Rev. King vs The State (2016) LPELR-40046 (SC) 1 @ 49 A - D.
So, where a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the findings of the trial Court. What is left to be done in the circumstances, remains to inquire into whether or not the lower Court had discharged this avowed duty, if it did, this Court shall be precluded from interfering in that duty which is the preserve of the lower Court. This becomes obligatory owing to the fact that it was the lower Court who had the rare privilege of observing the demeanour of the witnesses called in evidence before it. This Court needs cannot meddle into the issue that goes in to the credibility of the witness before the lower Court.
The law remains that once there is such sufficient evidence on record from which the trial court arrived at its findings of fact, the appellate Court cannot interfere to substitute its opinion. See: FRN vs. Umeh (2019) LPELR-46801 (SC); Chibuike & Anor vs. State (2010) LPELR-3911 (CA).
However, on the other hand, where this responsibility is shirked from by a trial Court, and it failed to properly evaluate the evidence before it as a result of which it reached a perverse decision, as alleged by the Appellant in the instant appeal, this Court shall shoulder the duty by way of rehearing, to evaluate, as if it were the trial Court, the evidence that has been adduced. See: Agbabiaka vs. Saibu & Ors (1998) LPELR-222 (SC) (Pp. 19-21 paras. G).
In the light of this, the duty is ripe for this Court to carefully review whether or not the lower Court properly evaluated the evidence adduced by the parties in the appeal and accordingly ascribed probative values to the evidence. It is noted that in the instant appeal, the Appellant is contesting his conviction and sentence on the ground that the lower Court excluded some exculpatory evidence in his defence and failed to properly evaluate the evidence adduced in his favour.
Mr. Shasore, SAN, of Counsel for the Appellant, particularly made much whether on this issue to the effect that,the Appellant through his counsel applied for the nightdresses of Zainab, tendered as exhibits in the lower Court, in fulfilment of the condition precedent for the enjoyment of the Appellant’s right to reasonable facilities and that it was not provided on the ground that the exhibits were lost.
Learned counsel for the Appellant argued that based on the contention that the lower Court had remarked that the Appellant's counsel had extensively cross-examined prosecution witnesses on the subject and that the lower Court will properly evaluate the evidence when the time comes, but later capitulated and refused to properly appraise evidence adduced at trial in relation to both nightdresses of Zainab and Petra, particularly the exculpatory evidence said to have been adduced by PW9 and DW6.
Now, the law is settled that a trial Court is bound to ensure that a defendant in a criminal case, is availed of every material needed for him to prosecute his defence, this accords with the constitutional provision of the right to a fair hearing which inure to the advantage of anyone standing trial in a criminal proceeding. See: section 36 (6) (b) of the Constitution, 1999, as amended, and also Okoye vs. COP (supra). For emphasis, a Court is duty-bound in a criminal trial, especially, for a capital offence of murder, to consider all available defences open to an accused person, its improbability notwithstanding. See Ikama vs. The State (2022) LPELR-57252 (CA); Sani vs. The State (2017) LPELR-43475 (SC) Bello vs. FRN (2018) LPELR-44465 (SC); Akinsuwa v. State (2019) LPELR 47621 (SC).
However, after a careful perusal of the judgment of the lower Court, being appealed herein, I am convinced that the learned trial Judge did a yeoman job in his careful evaluation and ascription of probative value to the evidence adduced before the trial Court.
The 140-page judgment, as reproduced at pages 1531-1670 of Volume 3 of the Record of Appeal, is replete with both oral testimonies and documentary evidence tendered in evidence by the parties through their respective witnesses.
Amongst the 9 witnesses called to testify for the Prosecution at the trial, PW 6, Gift Madaki (Pipi), who was staying with the deceased and the Appellant in same apartment, gave a vivid oral account of the event which reportedly culminated into the death of the deceased duo of Zainab and Petra Nielsen in the early hours of 5th April, 2018. She stated in Exhb. J1, as found at pages 6- 7 of the Record of Appeal, thus;
I am Gift Madaki, I am a step sister to Zainab Nielson. I live in the above address with my step sister Zainab, her husband Peter Nelson, my younger sister Favour Madaki and my little niece Petra Nelson.On 5th April 2018 at about 03.35hrs, I was asleep when I heard noise from the other room where Zainab and her husband was (were?) sleeping. Immediately, I woke Favour up, because she was sleeping, immediately I woke Favour up, she already awake, I told her did you hear the noise she said yes it was like Someone was hitting the wall I went out to Check what was happening and being that their door was not locked saw Peter Nielson on top of my step Sister, giving her fist blows she was screening and crying “baby please I will give you the phone" She was also calling (Mimi) mimi mimi because they call Favour Mimi and me pipi then she (stopping) stopped moving and crying, he lift up her hand on the kitchen and left her there with blood coming out from her mouth and her nose. Petra Nelson was sleeping with me and Favour on the same bed we did not know when Peter Nelson took Petra from our room we only found Petra dead by her mother was placed on top of Petra in the kitchen, we did not hear any cry from Petra l told Favour to pretend as if we do not know what happened because he locked all exits door and took the keys away I do not want to be his next victim, it was when the house maid came around 08:00 hrs and was knocking at door at the back because that doors. He was now asking me where is Zainab and Petra we told him we did not see them, the house maid Evelyn went to clean their room as she was cleaning Peter came an hold the Cup in the kitchen, when he got to the kitchen he shouted and me and Favour rushed to the kitchen where we saw Zainab and Petra on the ground I went to the housemaid and told her that mummy Petra is dead she said I was joking when she went to see for herself; She ran out and I followed her, he was now calling us to come Sometimes (last year) he takes cocaine, I have Seen him twice. After he has taken it he will beat up Zainab (Conn) it was his late wife that told me to come and see what he is taking that it was cocaine. He is always violent after taking the Stuff, sometimes last year he beat up his wife Zainab and when he tried to strangle me that was when the matter was taken to the police station at Ikoyi and it was settled.
I have equally read her subsequent statement to the police in SCID, Panti, Exhibit J2, wherein she narrated the same story, save for some additions like reasons for not raising alarm and opinions like what the intention of the Appellant was for the act.
There is also the statement of PW5, the younger sister to PW6, made to the Police on 5th April, 2018, it was substantially the same as PW6 statement of the same date, it detailed what each of them reportedly witnessed on the day which culminated into the death of the deceased.
I calmly read through the Record of proceedings of the lower Court of 19th December, 2018, reproduced at pages 723-747 of the Record of Appeal. PW6, on oath, restated the same storyline, even under the furnace of cross-examination by the learned silk, Shasore, SAN. I am not in doubt that PW6 knew what she was talking about. However, the Appellant, in his statement to the Police on the day of the incident, painted a flowery picture of the family he had, he spoke so glowingly of the wife and daughter, now deceased. I hereunder reproduced where he stated thus;
…. I am Peter Nelsen, (a) citizen of Denmark. ………. I live today in flat B4 16 of Bella vista compound in Ikoyi. We have lived there for about 4 years with my wife and daughter plus my wife’s two junior sisters. I met my wife in 2012 and we started immediately a relationship, this resulted in a marriage at Ikoyi Marriage Registry on 20 June, 2013. I have loved my wife ever since and the love resulted in the born of our daughter Petra on November 10, 2014.
On April 5 around 2.30am our daughter came to our room carrying her ipad, this she does frequently. She wants to watch cartoon and sometimes to eat my wife took her to the sitting room, telling me that I should continue to sleep because I stood up for Petra last night when she also came to our room, I collected a few treats, snacks and drinks and brought it to them in the kitchen and went back to sleep.
The Appellant then proceeded to give his account of the happening of the day. He stated thus;
On the morning of April 5, I woke up around 08:00am, I went to the sitting room, asking the Nanny and my wife’s two sisters, Mimi and Pipi where is my wife and Petra because they were not in our bed. When we opened the door to the kitchen, I saw my wife and Petra lying on the floor. Me and Mimi who entered with me could immediately feel a strong smell of gas, while starting to drag my wife to the sitting room, I asked Mimi to check if the gas was open, she confirmed that 3 or 4 of the valves were open-but no fire, so gas was leaking and she closed them all. Then she carried Petra to the sitting room, I tried giving my wife and Petra heart massage but it was too late, the breath was not starting to come back, eventually I stopped, Mimi asked why is Petra blue around the mouth which to me was a sign it has been some time since they passed away. At the same time the nanny and Pipi had rushed to alert security who arrived shortly after. As to the treats and drinks I gave them I collected from our store in my office. It was ribena, orange juice and chin chin. At the time of discovering my wife and daughter on the floor I did not notice any blood. I was first of all busy getting them out of the kitchen. (TH) Following alerting of the security the facility management also arrived telling, they have notified the police who arrived sometimes after.The first thing that came to my mind when the heart massage failed was to cover the bodies with blankets and call the mother and father of Mimi and Pipi telling them to travel from Abuja to Lagos. On the night of the 5th there was no quarrel or discussion between me and my wife, on the contrary, it was a wonderful night where we watched champions league football together.
When the policemen from the Ikoyi division of Lagos State, brought in by the Management of the Bella Vista Estate, arrived at the Nielsen apartment, they noticed a fresh wound on the index finger of the Appellant, which he defended in the said Statement thus;
On the 4th (of April, 2018) afternoon I injured my right index finger. I was doing sport by climbing the staircase from the ground floor to floor 14 which I have done many times before, I fell on a stair and got my knee on my finger at the sharp edge.
My wife wanted me to see a doctor but I didn't feel bad the time and besides I barely visit doctors or take medicine. I have been asked whether the injury on my finger is the result of a bite from my wife which is not tru., The police at their arrival asked us to (the p) contact and bring my wife’s doctor. She arrived a couple of hours later, the doctor inspected the bodies of my lovely wife and daughter, she said the blood on my wife’s face was mostly stains. We saw blood on my wife’s upper part of the leg. When we came to look at our daughter I moved away as I (D) felt very bad. while inspecting my wife both me and the doctor were crying.
In his defence of the allegation that he maintained a frosty relationship with his late wife, the Appellant wrote that;
It is true that my wife and I have sometime in 2017 been to Ikoyi police station related to a misunderstanding which we quickly settled. It is not true that me and my wife fought this morning between 3 and 4 and resulting in her dead (sic) and that of our daughter.
The Appellant, in his set of extra-judicial statements, obviously gave the impression that the deceased might have died of being poisoned by the cooking gas left open in the kitchen where the deceased dead bodies were found. The same position was maintained in his testimonies at the trial. The learned trial Judge, at pages 1656-1658 of the Record of Appeal, evaluated the Appellant’s evidence thus;
The Defendant gave evidence. He talked about his wife, the late Zainab whom he referred to with lov,e affection and fondness. He talked about his beautiful daughter. He talked about their lives. He recalled how he met Zainab, how they fell in love, how she got pregnant and how they got married. He talked about Zainab's family in general. He talked about the sisters PIPI and MIMI and their parents. He talked about the night before the incident how Zainab who would never watch football with him did. He was so happy that his favourite football team won the match. He talked about how they had a good time, how they had taken warm shower together and how they made passionate love. He talked about how their daughter who shared rooms with PIPI and MIMI came to their room (which is not unusual) about 2.00am and he got her some juice and Zainab volunteered to take her to the kitchen. He went back to sleep a happy man. On 5th April 2018 about 7-7:30am he woke up a happy man but did not find his lovely wife by his side. He got up to look for her and their daughter and saw the three girls clustered together (PIPI; MIMI and EVELYN - House Maid). He asked them what was wrong, they stated nothing. He asked after madame and they said she was with him. He went to the girls’ room and toilet but did not see her. He then went to his office to pick his cup and went to the kitchen and his life turned upside down with what he saw His wife and daughter’s dead bodies on the kitchen floor.
He screamed "Jesos". He touched them. He started cleaning up the kitchen. He washed his cup. He poured away the juice he found in a cup, handled the cup and stalked both cups where they would normally put them. He then asked Mimi whether she could smell gas and she said yes. He asked her to check the knobs of the gas, they found about three were on and she put them off, he now asked her to carry Petra while he carried Zainb and they did. He placed their bodies in the sitting room. Mimi asked him to take them to the hospital, he said No. They should wait for their parents (the Madakis) to come from Abuja. He later asked PIPI to call her mother (on phone). The Defendant did not call their family doctor, he did not call a friend or neighbor, he did not call the Estate Security, he did not alert the Police, he did not call a friend, he did not call anyone but his parents-in-law who were both in Abuja. Peter sat down with the dead bodies in the sitting room: It took the intervention of the Police who were called by the Estate Security as a result of the report by PIPI and Evelyn before he could contact their family Doctor.
Defendant in his evidence stated he suspected that both his wife and daughter died through suffocation inhaling gas. Later, he stated it must be the Madakis, who intended to inherit the properties of Zainab and Petra.
After its evaluation of the Appellant’s evidence as in the foregoing, the lower Court, in my opinion, correctly ascribed probative value to same when it held thus;
I watched the demeanor of the Defendant in Court during Trial Proceedings especially when he gave evidence, more especially during cross-examination.
He was very cool and calm. although evasive and sometimes would deliberately answer a question with another question. His defence was a total denial of the allegation. He, on the contrary, alleged it must have been suffocation through gas and later another person committed the dastardly act and suggested CHRIS MADAKI and his wife (Zainab’s mother). He gave reason for their motive.
He was cross- examined extensively. He admitted he was the only male adult inside the house that day from 4-5 April, 2018. From about 2 am, he went to bed. As earlier stated, his story changed from inhaling gas as cause of death to an intruder who entered into their home. A male adult whom he did not see coming into the home but did and killed ZAINAB & PETRA while they were in the kitchen. He did not hear any one or see anyone as (at) (of) 5th April 2018. There was no sign of breaking into their home, there was no evidence of broken doors or attempt to open door, there was no evidence of any damage to doors or removal of safe. He did not notice any form of interruption in the night, but he was now sure the fumes from the gas did not kill them, the Madakis did. It is obvious there were more pieces of evidence than the Defendant knew existed. There is evidence before the Court that there was blood from the bedroom to lobby and not the other way round as he wanted Police to believe. There was evidence of blood thoroughly cleaned from the bedroom to lobby to the sitting room. It was such a good attempt at concealing the spot of blood. Surprisingly, the Defendant did not give evidence of an intruder into their bedroom or into their home that day. There was evidence of bruises seen on his face and arm that day by PW2. There was evidence to show that he never left the house throughout the night and into the morning of 5th April, 2018.
Likewise, the learned trial Judge did carefully evaluate other pieces of evidence adduced by the parties before it. The evidence adduced by PW1-PW9 as well as the Appellant, who testified as DW9, the defence witnesses DW6 and DW8, all testified to the death of the deceased which buttressed that the first ingredient of murder was present, especially the report of the post mortem investigation carried out on the corpses of the deceased persons.
On the cause of death, the law is settled that the cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death must be clear so as to connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirements of the law on onus of proof, is the evidence that fixes the accused to the crime with sufficient cogency which excluded that someone else had committed the crime. See: Sansani vs. State (2022) LPELR-57954 (SC) (Pp. 24-25 paras. E). The Apex Court in Ahmed vs. The State (2001) 18 NWLR (Pt.746) 622, held that the primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. It is the law that the appropriate question at that stage is, what caused the death and not who caused the death? Thus, in a charge of murder, if the cause of death has not been proved or remained indeterminable, it is futile and unnecessary to proceed to consider whether it was the accused person who caused the death of the victim of an attack. Indeed, it is after the cause of death of the deceased has been established or ascertained, that the issue of who and which act of the accused person was responsible or closely connected with the act which resulted in the death of the victim would be determined. See: Idowu vs. The State (2000) 12 NWLR (Pt. 680) 48.
As earlier noted, the Appellant’s testimonies pointed majorly to the possibility that his deceased wife and daughter might have died of chemical poisoning through the leaked cooking gas in the kitchen where the Appellant allegedly discovered their dead bodies in the morning of 5th April, 2018, in light of which the Medical/Scientific examination became imperative. In the evaluation of the result of the respective post-mortem examinations carried out on the corpses of the deceased, it was found that the death, in the case of Zainab was a result of closed crania cerebral injuries with asphyxia and blunt force trauma with smothering. The learned trial Judge, in the judgment of the lower Court, at pages 1628-1636 of the Record of Appeal, analyzed the post-mortem reports of the autopsy carried out by the Pathologists and remarked thereon extensively, as follows:
“Both bodies were moved from General Hospital Lagos Mortuary to Lagos State University Teaching Hospital (LASUTH) on his request. PW4 named 5 other Medical Pathologists present with 2 Police Officers. He examined the body of ZAINAB NIELSEN first. He examined externally making photographic recordings and internally at various organs. He took samples of blood from stomach, eye, gull bladder and bile. He produced a CD of the examination. His findings were as follows:
"There are marks around the face, teeth marks aberrations".
When he observed teeth Mark injuries and bruises and the face, he did a neck dissection. From the dissertation examination from the autopsy room, he concluded that cause of death in the case of ZAINAB is by;
(1) closed crania cerebral injuries with AXPHIZIA
(2) blunt force trauma with smothering.
PW4 explained amongst other things that "Fluidity of blood are consistent with inadequate oxygen due to smothering supported with the aberration of inside lips" He testified further upon his findings! "Forceful closure of nose and lips of the victim: Victim would have been struggling with evidence of nail mark trying to forcefully remove or get disengaged." On more findings, PW4 stated: "The bruises around the head is consistent with blunt trauma." He explained that "The aberration to the head cannot be consistent to a simple fall to the ground with the aberrations not just in one side, the trauma is around the head all-over." He stated further amongst other findings: “There was bleeding into the side of the skull. Impact against the side of the head point of the bleeding was underneath the scalp." Furthermore, the enlargement of the lungs is not an uncommon finding in association with an absolute lack of oxygen to the body. He explained that
"Any condition that will, compromise loss of oxygen will cause tha.t"
PW4 testified he also conducted autopsy on PETRA NIELSEN - 3-year-old. In his examination: he also observed aberration and pressure of lips against the teeth. In her brain, tiny small arears of bleeding, were found. The combollusion appeared expanded and flattered which in medical parlance we say this is severe swelling of Brain" On the neck, there were dissentious and structures. He concluded death was also as a result of “smothering.”
The foregoing represents the autopsies reports on the causes of death in each of the instances.
PW4 stated that the injuries suffered by Zainab would not be self-inflicted, except in the case of epilepsy, which he ruled out, as there was no such history in the deceased. The learned Judge added thus:
The combinations of the above finding add up to ASPYXIA which PW4 explained to mean "absence of oxygen supply to the bodies of both Zainab and Petra Nielsen and the cause of death was consistent with inadequate oxygen due to smothering. Having analyzed the findings and conclusion under postmortem examinations of the Victims, Zainab and Petra.
Smothering, on its own, means the obstruction, and blockage of upper air nary traffic from nose, to mouth which can be done manually or can be achieved by compressing a pillow against the face of a victim.
The reports were subjected to the reviews of other pathologists which included DW6 who reviewed the report of the investigations and remarked that the said report was inconclusive as to the causes of the death of the deceased persons. The learned trial Judge was not persuaded, neither am I, by the evidence of DW6, in that the witness neither participated in the investigation nor conducted a separate investigation, all he did was to review the concluded works of the team of the Pathologists who conducted the examinations. The evidence against the Appellant, as I have highlighted afore is, without doubt, overwhelming at proving his commission of the alleged crime. There is the circumstantial evidence of him being the only male adult in the apartment where the incident happened. There is the eyewitness accounts rendered by PW6; which was, in my opinion, corroborated by the outcome of the forensic investigations carried out in the process of determining the perpetrator of the dastardly act. I find apposite, the evidence of PW7, an Inspector of Police, who led the team of Police men invited by the Management Office of the Bella Vista Estate. He testified that he got to the apartment, Block 4, Flat 17, Bella Vista Estate, Banana Island, Ikoyi Lagos, where he met the Appellant; he testified to seeing the 2 corpses of the deceased in the sitting room as well. He testified particularly that he discovered the Appellant was the only adult in the apartment, who informed him the deceased persons were found dead in the kitchen, probably as a result of their inhaling the cooking gas which was left leaking at the time. PW7 testified that there was no sign of breaking into the apartment. He added that there were bloodstains on the kitchen floor, and from the kitchen to the sitting room. He stated that the Appellant had a fresh wound on the index finger of his right hand which looks more like human bite, the Appellant however denied same, stating that it was a wound he sustained from a fall on the staircase in the Estate.
The report of the investigation was more damning, as Zainab’s fingernails’ scraping was found to contain the Appellant’s DNA, apparently while struggling to free herself from his grip. This was in tandem with the testimonies of PW6 and PW5, who testified that the Appellant was seen sitting atop the deceased Zainab, dealing blows unto her head on the floor of their bedroom from where he was said to have dragged her to the kitchen where she was found dead in the morning of the same day.
Again, I will have recourse to the judgment of the lower Court where the learned Judge, captured the moment when it reiterated in its judgment that;
Apart from the night gown and jump suits, there are other reports to be considered. The Report is the nail scrapping. This is scrapping from under the nails of Zainab; one of the victims. PW9 explained that if there is nail scrapping, it shows there was a struggle. It shows the victim tries to fight back. The report shows that there was no doubt as it was very clear that the Victim Zainab struggled. She fought back for her dear life to get herself disentangled from the grip of her assailant. The DNA result showed clearly that it was the assailant ZAINAB struggled with.
The DNA found matched PETER NIELSEN in the nail scrapping.The pattern found on the neck of ZAINAB were unique and could be masked to a single contributor. The single contributor was found in the DNA of PETER NIELSEN. There is no other contributor found. The Result was certain and clear PETER NIELSEN AND PETER NIELSEN ONLY.
This, in my considered opinion too, is the most probable explanation, in the absence of prove of any intruder’s involvement. There was no evidence of breaking into the Nielsen’s apartment on the fateful day, the usual route of the house maid, Evelyn, PW2, id est, the kitchen exit door, having been locked from the inside. No one else could have come into the apartment to commit the crime.
I am not confused or unmindful of the duty on the Court when drawing an inference of guilt from circumstantial evidence, as in the instant case, that great caution must be taken not to fall into avoidable error. Such evidence must be critically examined to remove any shade of reasonable doubt. It is necessary to ensure that there is no other co-existing circumstance capable of weakening or destroying the inference, before a valid conviction can be sustained. See: Haruna vs. AG Federation (2010) LPELR-4233 (CA) (Pp. 30-31 paras. B).
The Apex Court, however, supplied the guiding light in the case of Akinmoju vs. State (2000) LPELR-351 (SC) (Pp. 35 paras. C), Per Iguh ,J.S.C, (Rtd), when it held that;
"... where strong circumstantial evidence is led against an accused person in a criminal trial and this gives rise to the drawing of a presumption or inference irritably warranted by such evidence, the criminal Court will not hesitate to draw such a presumption or inference so long as it is so cogent and compelling as to convince the Court that on no rational hypothesis other than the inference can the facts be accounted for. See Uwe Idighi Esai and Others v. The State (1976) 11 SC 39; Peter Eze v. The State (1976) 1 SC 125 etc."
In the circumstance of this case, it is a case of a limping masquerade which entered into its groove and a limping man, of the same specifications, came forth from the same cocoon at the same time, we need not look further.
The Supreme Court in one of its recent judgments in Mahmuda vs. State (2023) LPELR-60697 (SC) (Pp. 32-330, held thus;
It's trite and well settled doctrine, that primary facts are basically facts which are observed by the witness and proved by evidence. Thus, conclusions drawn from these facts are inferences deduced vide a process of reasoning therefrom. This explains the hypothesis, that the determination of primary facts is always a question of fact. Fundamentally, it is a matter exclusively for the trial Court (Tribunal) who sees the witness to assess their credibility and decide the primary facts dependent thereupon. The conclusions drawn from those facts can sometimes be of fact or law. Thus, an appellate Court would only interfere with such decision of trial Court if the conclusions reached therein cannot reasonably and justifiably be drawn from the primary facts adduced at the trial.
As earlier stated, this Court, as an appellate Court, need not substitute its opinion for that of the lower Court, having been satisfied that the lower Court had discharged its duty as it ought to. In view of this, I find the Appellant’s submission on issues 3, 6, 7 & 8 in the Appellant’s Brief of Argument, bereft of any iota of merit. Those issues are resolved against him and in favour of the Respondent.
What is more, the bunch of the Appellant’s defence, in my respectful view, is that of an afterthought. It is trite that a defendant must put his defence at the earliest opportunity and not keep his defence up his sleeve. A defence revealed at the defence stage only, as in the instant appeal, stands the risk of being considered an afterthought, whose probative value, without doubt, shall be greatly diminished. In a specific response to the Appellant’s contention of not been availed with certain materials in the pursuit of his defence, I find that these materials, i.e., Exhibits PWN, PWO1, PWO2 and PWO3 were held in the judgment of the lower Court to have been lost to the civil unrest of the year 2021 tagged End SARS Crisis. In the words of the learned silk for the Appellant, the items contained exculpatory evidence in favour of the Appellant and that the denial amount to breach of the Appellant’s constitutional right.
I am not unaware that one of the Appellant’s witnesses, DW6, who reviewed the forensic report tendered in evidence in the lower Court, had mooted the idea of a third-party culpability in the death of the Appellant’s late wife. In the testimony of DW6, as reproduced at pages 1563-1566 of the Record, the expert raised a major concern after his analysis of the forensic report submitted to the lower Court, that there was a consistent appearance of mixed DNA profiles of the samples analyzed and also, that there is an appearance of strange DNA profiles. He testified further that:
“.. in the samples, there are evidence of mixed profiles which is indicative of the presence of a second contributor to a particular sample. A mixed profile occurs when we have more than two alleles in a sample. Every human should have two genes contributed by both parents of the individual. A mixed sample will have more than 2 ..... On slide 26 we have profile the profiles of Zainab Nielsen and Petra Nielsen. The third profile is unknown male No. 1 .....
From the analysis of the results, the Defendant could not have been the unknown male identified by Dr Somiari....”
The defence at the lower Court, in consequence of the foregoing report of DW6, fell into a frenzy mood, seeking to determine the unknown male, whose DNA was found on the Nightdresses of the deceased Zainab, this was long after the event referred to as ENDSARS. I take judicial notice of the happenings of the time in which the High Court of Lagos State, amongst other governmental establishments, was attacked and vandalized.
I find the lower Court’s manner of handling the legal conundrum, a somewhat mature and acceptable to this Court. The learned trial Judge gave the account of the said sad occurrence, leading to the loss of the items under focus herein, as follows:
At this juncture, I find it pertinent to determine the issue raised by Learned Senior Counsel for the Defendants SUPO SHASORE SAN with UYI GIWA OSAGIE regarding the night wear and the Jump Suits worn by Zainab & Petra on the right of 4th, 5th April, 2018. Both clothing were thoroughly examined and reports were issued by the DNA Experts. The Team of Lawyers led by Learned Silk, Supo Shasore SAN, thoroughly and extensively cross examined PW9 on these pieces of item., Records of the Court showed that the incident happened on 5th April 2018. The DNA examination was carried out and result was prepared which are EXHIBITS PWN, PWOI, PWO2, and PWO3. It is pertinent at this stage to state that on the 21st of October 2020, the High Courts was vandalized, burgled, looted, many items, i.e electronics etc. carted away including computers, safe e.t.c and some exhibits before same part of the buildings were set on fire and burnt down. It was a huge destruction and monumental disaster. The Records of the Court which I am bound show that amongst items found missing were EXHIBIT PWN, PWO1, PWO2, and PWO3 which are the night gown and jump suit worn by ZAINAB & PETRA, the Victims.
The learned trial Judge further noted that;
Records show that the incident happened on 5th April, 2018, however, it was in the year 2021 that the Defendant brought an Application seeking to examine these two items. The Court gave a Ruling which forms part of the Record of this Count stating the Court cannot give what it did not have as it is in the Records of the Court that the items were no longer in the custody of the Court. After the end of the case of the Defence the Defence addressed this issue in the Final Written Address and made a heavy weather out of it seeking the protection of the Court under Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) canvassing that the Prosecution denied the Defendant of the very important items which informed the Fundamental Rights of the Defendant to be denied.
As earlier stated in the Ruling of this Court, in this instant case, notwithstanding that the items are important to the case of the Defendant as well as the Prosecutions, the items were under the custody of the Court, and its non-production for the fact that they are missing items which cannot be found therefore cannot be handed over by the Court.I have perused very carefully the Written Addresses of the Defendant on this issue and noted the reaction of the Prosecutions in their Written Address. The Records of the Court also shows that the Witness who made the report PW9 was cross examined extensively as earlier stated.
It is however the contention of the Defendant that apart from having had the opportunity to cross-examine the witness PW9 on EXH. PWN, PWO1 PW02 and PWO3 the Defendant applied to the Court for the release of these items to enable the Defendant seek another DNA expert opinion. In a case like this; What will the Court do? The items are missing therefore the Defendant has no opportunity to do so. To answer this question, I will rely on the principle of law in the case of M.W.O. KENABU PHILIP V NIGERIAN ARMY (2016) LPELR-40255 (CA) where the Court of Appeal per ABBA AJI JCA (now JSC) (P.14, Paras.C-D) held that "A trial or appellate Court must see all exhibits before taking any decision on them, see EKPEMUPOLO V EDREMODA (2009) 3 MJSC AT 87 PARAS. A-B.
It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before it. Such documents tendered before it which are referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the Trial Court See: KOGI GOVERNMENT & ORS V QUMECS NIG LTD (2018) LPELR-46026 (CA). In this instant case the Court itself did not have the opportunity to scrutinise EXH PWN, PWO1, PWO2 and PWO3 after having admitted same as exhibits.
Admissibility of exhibits is one thing, the weight to be attached is another SEE: Engr. Adeola Ajidahun v Mr. Ogundele Ojo (2014) LPELR- 41108 (CA), General Muhammadu Buhari v Independent National Electoral Commission (2008) LPELR-814 (SC). The Court did not have the opportunity to also test the missing exhibits PWN, PWO1, PWO2 and PWO3 for credibility and weight and I so hold.
In view of the above and for the reasons that the Defendant was not provided with the items as earlier stated in this Judgment due to the non-availability of same, I agree with the submission of Learned Senior Counsel to the Defendant that his rights under Section 36 (6) (b) of the Constitution which states as follows..... What the justice of this case deserves is for the Court to expunge EXHB. PWN, PWO1, PWO2 and PWO3 along with the oral evidence including cross-examination referring to same and I so do and I so hold.
I am persuaded by the above decision of the lower Court as same is unassailable. I hold that the justice of the case demands that the said exhibits and the oral testimonies given upon them be and are rightly expunged by the lower Court. I hold the considered view that by so doing, the right of the Appellant under the Constitution is preserved, since the facts therefrom are not standing against him in the case. In view of the foregoing, the submission of learned senior counsel for the Appellant on issue 1 is hereby discountenanced. The Appellant’s issue 1 is resolved against him.
I took another careful look at the Record before the Court and observed therefrom that the forensic report was dated 31st of July 2018, and same was served on the defence team on 10th September, 2018. It is my view that the Appellant was aware of the report all along. No such application was made for their access to the items being contested in issue 1 of the Appellant’ Brief until after the ENDSARS incident, when the Exhibits were either carted away or destroyed. This reinforces my opinion that senior counsel for the Appellant is making issue out of no issue. I dare say this because, this Court was not unaware that the Appellant made a set of 2 applications to the lower Court, dated 5th October, 2018, for an order of the lower Court;
mandating the Complainant to direct the Commissioner of Police, Lagos State Police Command, to unseal Flat B4 17, Bella Vista, Bannana Island, Ikoyi, Lagos, the alleged scene of the murder of ZAINAB JOY NIELSEN and PETRA NIELSEN of 5th April, 2018 etc.
in the second application, the Appellant sought sundry orders of the lower Court directing the Complainant (the State) to produce RUTH MADAKI, GIFT PRINCESS MADAKI also known as "Pipi" and MS FAVOUR MADAKI also known as "Mimi all of them material witnesses of the Complainant for examination by the medical staff of Synlab Nigeria Limited (Pathcare Laboratories) of Plot 1397b Tiamiyu Savage Street, Victoria Island, Lagos, for the purpose of collection of evidence, to wit: samples of the said witness's hair and blood, for the purpose of establishing DNA (scientific) evidence essential to the preparation of the Defendant's defence in this case. The two applications were granted by the lower Court as prayed by the defence. The enrolled orders are copied at pages 121-124 of the Record of Appeal.
It is pertinent to note that, in paragraphs 9 and 7, respectively of the Appellant’s affidavits in support of the foregoing applications, both dated 5th October, 2018, it was deposed by Oluwateniola Akeju, a Legal Practitioner of counsel for the Appellant, that;
“Notwithstanding the undertaking on 13 June 2018, the Applicant’s counsel did not receive the State’s Scientific Evidence (not) until 10 September, a period of less than four weeks to the commencement of trial and after two months after the Scientific Evidence was due to have been served on the Defendant.”
With the foregoing applications made as at the time the defence team was already in possession of the report of the Forensic Investigation, part of which findings, the Appellant is contesting in this issue, no doubt is left in me that the Appellant is on a very weak wicket on this issue. If the items were of the importance been peddled in this appeal, the Appellant would not have waited wait until July 2021, to seek what was in his possession for almost three years. Not even when same can no longer be retrieved. The trial will obviously be truncated by the Appellant’s application to the lower Court to produce what was no longer in its possession. As rightly stated by the Respondent, justice is a 3-pronged pole, it applies to both litigants and the society in equal measure. Its concept applies to every stakeholder, it is not the preserve of the Appellant, as the Defendant alone; the victims, the state and the human society likewise, all deserve to be fairly treated. I will say no more.
The testimonies of other witnesses, especially PW6 together with that of PW5, who were in the same apartment on the said day, goes a long way to prime my opinion towards the belief that the Appellant knew more than what he made the Court to know about the incident. I find that the lower Court was fair to the parties before it as none of their rights was breached and witnesses produced by them were well heard. I am also satisfied with the manner the lower Court evaluated the evidence adduced before it as well as the probative value ascribed thereto.
The account of the incident given by PW6 fixed the Appellant to the scene of crime, he was unable to give cogent evidence to shift the burden on him in that regard. It was not in contest that he was together with the deceased in the same house and in the same room. And also, save for the belated effort to decoy, there was no rational hypothesis capable of tilting the inference drawn in the instance.
It is important to state that other reports based on scientific investigation revealed traces of blood both in the kitchen where the bodies were found and the bedroom through the lobby. The blood samples were said to have been dutifully cleaned and rendered invisible to the naked eyes. Thanks to the luminol spray which allows to be seen things that are not visible to the eyes. PW9, a DNA expert and the Director of the Lagos State DNA and Forensic Centre, stated that luminous works by reacting with the haemoglobin in the blood to produce a light, visible and photographed. He added that there was also ALS, Alternative Light Source which makes body fluids like semen, saliva, etc., to shine and thereby becomes visible. This witness testified to presence of traces of blood, despite being already thoroughly cleaned and invisible to the ordinary eyes. The scraping under Zainab’s fingernail also revealed that the Appellant’s DNA was seen under Zainab’s nail. Visible patches on the face and neck pattern of Zainab were parts of the evidence before the lower Court in its determination of the guilt of the Appellant. The lower Court, in its considered judgment, part of which I have reproduced considerably, believed that the Prosecution has proved its case sufficiently beyond reasonable doubt, I believe so too. All these proven facts amongst others, are overwhelming evidence cogent and compelling enough to prove the guilt of the Appellant. I am not inclined to alter the thorough evaluation of evidence adduced at trial by the Prosecution which I find as credible, over and above the evidence of the Appellant, which were fraught with untruth and in some instances, outright deceits.
I find the instant appeal lacking in merit and deserved to be dismissed, and I so dismiss it. The judgment of the High Court of Lagos State in Charge No. LD/7186C/2018, delivered on 20/05/2022, by Hon. Justice Bola Okikiolu-Ighile, convicting and sentencing the Appellant to death for the murder of Zainab Nielsen and Petra Nielsen, is hereby affirmed.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Olasupo Shasore, SAN, with T. V. Amaefule and C.C. Amakwor for the Appellant.
Lawal Pedro, SAN, Attorney General of Lagos State, with A.P. Ameh (Private Legal Practitioner), Mrs. E.R. Agu (Deputy Director) and Mrs. O. Osunsanya (Chief State Counsel) for the Respondent.
