ALBAN AJAEGBO v. THE STATE(2018)

ALBAN AJAEGBO v. THE STATE

(2018) LCN/4625(SC)

In The Supreme Court of Nigeria

On Friday, the 18th day of May, 2018

SC.533/2012

RATIO

DUTY OF THE PROSECUTION TO ESTABLISH THE GUILT OF AN ACCUSED PERSON BEYOND REASONABLE DOUBT AND HOW SAME CAN BE DISCHARGED

By virtue of Section 135 of the Evidence Act, 2011, the prosecution has the onerous burden of establishing the guilt of an accused person beyond reasonable doubt. The onus remains on the prosecution throughout and does not shift. In other words, an accused person has no duty to prove his innocence. There is a presumption of innocence in his favour by virtue of Section 36 (5) of the 1999 Constitution, as amended. See: Mumuni Vs The State (1975) 1 ANLR 295; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Afolalu vs The State (2010)15 NWLR (Pt. 1220) 584. What is required of the prosecution is to establish the guilt of the accused with compelling and conclusive evidence. It must prove its case with a degree of compulsion which is consistent with a high degree of probability. See: Nwaturuocha Vs The State (2011) 6 NWLR (Pt. 1242) 170; Lori & Anor vs The State (1980) 12 NSCC 259; Oseni Vs The State (2012) 5 NWLR (Pt. 1293) 351; Miller Vs Minister of Pensions (1947) 2 ER 372. In discharging the burden of proof, the prosecution may rely on any one or a combination of the following: i. The confessional statement of the accused person; ii. Circumstantial evidence; iii. Evidence of an eye witness. See:Abirifon Vs The State (2013) 13 NWLR (Pt. 1372) 587; Ogunbayode Vs The Queen (1954) 14 WACA 458; Egboghonome Vs The State (1993) 7 NWLR (Pt. 306) 383; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100 @ 120-121 H-A; Adio vs. The State (1986) 5 SC 194 @ 219-220. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

NATURE OF A CIRCUMSTANTIAL EVIDENCE THAT CAN BE RELIED UPON IN SECURING CONVICTION AGAINST AN ACCUSED

Where the prosecution relies on circumstantial evidence, the evidence must be strong, cogent and compelling. It must point to the irresistible conclusion that the accused person committed the offence. The evidence must leave no degree of possibility or chance that another person or other persons could have been responsible for the commission of the offence. See: Ijioffor Vs The State (2001) 9 NWLR (Pt. 718) 371 @ 386 F-G. At page 387 A-B of the report, His Lordship, Ejiwunmi ISC cautioned thus: “Circumstantial evidence must always be narrowly examined. On the other hand, it has been said that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances, which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own face but the one test that the evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence.” See also: Obosi Vs The State (1965) NMLR 119; Lori Vs The State (supra); Chukwu Vs The State (2013) 4 NWLR (Pt. 1343) 1; Iliyasu V. The State (2015) LPELR – 24403 (SC) @ 39-40 B-A. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

CONDITIONS THAT MUST BE SATISFIED BY THE PROSECUTION IN ORDER TO SECURE A CONVICTION FOR THE OFFENCE OF MURDER

In order to secure a conviction for murder, the prosecution must prove the following facts beyond reasonable doubt: a. That the deceased died; b. That the death of the deceased resulted from the act of the accused; and c. That the act or omission which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See: Abogede Vs The State (1996) 5 NWLR (Pt. 448) 270; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375; Olalekan Vs The State (2001) 12 SC (Pt.1) 38. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

PRE-CONDITION FOR THE ADMISSIBILITY OF A DOCUMENT IN A CASE

The law is well settled that the cardinal consideration in the admissibility of a document is relevance. Once a document is relevant to the facts in issue and is legally admissible, it would be admitted in evidence. See: Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558; B.O.N v. Saleh (1999) 3 NWLR (Pt. 981) 145; Torti v. Ukpabi (1984) 1 SCNLR 224; Okoye v. Obiaso (2010) 8 NWLR (Pt. 1175) 145. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

CIRCUMSTANCE WHERE A STATEMENT, ORAL OR WRITTEN MADE BY A PERSON NOT CALLED TO TESTIFY WILL BE ADMISSIBLE

Ordinarily, by virtue of Section 37 of the Evidence Act, a statement, oral or written made by a person not called to testify, is hearsay and inadmissible in evidence. However there are exceptions to this rule. Section 39 of the Evidence Act makes admissible a statement, oral or written of facts in issue or relevant facts where the maker is; (a) dead, (b) cannot be found, (c) has become incapable of giving evidence or (d) whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court to be unreasonable, if it falls within Sections 40 – 50 of the Act. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER A CONFESSIONAL STATEMENT CAN BE USED AGAINST A CO-ACCUSED

The law is quite well settled that a statement amounting to a confession may be used against the maker alone. It cannot be used against any of his co-accused unless it was made in his presence and he adopted it by words or conduct. See: Section 29(4) of the Evidence Act. Also: Ozaki & Anor V. The State (1990) 1 NWLR (Pt. 124) 92; State V. Gwangwan (2015) LPELR – 24837 (SC) @ 28-29 E-C; Suberu V. The State (2010) 8 NWLR (Pt. 1197) 586. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER SUSPICION CAN TAKE THE PLACE OF LEGAL PROOF

The law is that suspicion, no matter how grave cannot take the place of legal proof. See:Abieke Vs The State (1975) 1 ALL NLR (Pt. II) 57; Bozin vs. The State (1985) 2 NWLR (Pt. 8) 465; State vs. Ogbubunjo & Anor. (2001) 2 NWLR (Pt. 698) 576; Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER THE FACT THAT AN ACCUSED TOLD LIES IS PROOF OF HIS GUILT; WHETHER WHERE IT IS DISCOVERED THAT AN ACCUSED TOLD A LIE THE PROSECUTION WOULD BE RELIEVED OF ITS DUTY OF PROVING THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT

It is also well settled that the mere fact that an accused person told lies is not proof of his guilt nor does the fact that he told lies relieve the prosecution of its duty of proving the guilt of the accused beyond reasonable doubt. See Okpere vs. The State (1971) ANLR 1; Omogodo v. The State (1981) LPELR-24879 (SC)@ 21-22 E-B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

Between

ALBAN AJAEGBO Appellant(s)

AND

THE STATE Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant herein was among 7 persons arraigned before the High Court of Imo State, sitting at Owerri in charge No. HOW/7C/97 on a one count charge of murder contrary to Section 319 (1) of the Criminal Code Cap. 30 Vol.II Laws of Eastern Nigeria applicable in Imo state. They all pleaded not guilty to the charge. The prosecution called 11 witnesses and tendered documentary evidence. The appellant was the 1st accused. All the accused persons testified in their own defence. At the conclusion of the trial and after considering the written addresses submitted by counsel, the learned trial. Judge, on 23/1/2003 found all the accused persons guilty as charged. They were all convicted and sentenced to death by hanging.

The genesis of this case is the infamous Otokoto affair that took place in Owerri, Imo State on or about the 19th day of September, 1996 at the Otokoto Hotel. The facts of the case as can be gleaned from the record are as follows:
On the 20th day of September, 1996 one Innocent Ekeanyanwu was arrested with the severed head of the

deceased, a young boy of 11 years, named Anthony Ikechukwu Okoronkwo in a black nylon bag. Upon interrogation, it was discovered that he was a gardener at the Otokoto Hotel where he also resided. Otokoto Hotel was owned by Vincent Duru (alias Otokoto) the 7th accused. He initially led the Police on a weird goose chase saying that he murdered the boy and dumped him in Mba River. A search did not yield anything. On the 22nd of September, 1996 the investigating team returned to the hotel. There they found a shallow grave in a cassava farm belonging to wife of the 7th accused, behind Ekeanyanwu’s room. A decomposing headless corpse was exhumed from the grave. It was found that the tip of the penis had been cut off .The headless body was clothed in a short sleeved shirt and a pair of shorts. There were some coins in the pocket. The corpse was identified to be that of the deceased. As a result of the discovery, some arrests were made. It was discovered that the appellant and the 2nd accused, Sampson Nnamito shared a room with Ekeanyanwu at the hotel. A sharp matchet was recovered from the room. The 3rd and 5th accused persons also resided in the hotel.

It was the prosecution’s case that the deceased was hawking groundnuts around the premises of the hotel on the fateful day when he was lured inside the hotel by Ekeanyanwu under the pre of buying groundnuts from him and was subsequently killed by the said Ekeanyanwu with the assistance of the appellant and the 2nd accused, Sampson Nnamito. Ekeanyanwu was said to have confessed to the crime by informing the Police in written statements (Exhibits 21 and 36) that at the time of his arrest, he was in the process of delivering the severed head of the deceased to the 6th accused, Chief Leonard Unogu, who was his uncle on the instructions of Vincent Duru, the owner of the hotel. He stated that he did not meet Chief Unogu and was on his way back to Owerri when he was arrested. The accused persons were arrested as a result of the information contained in Exhibits 21 and 36. It is pertinent to note that Ekeanyanwu never stood trial, as he died in prison custody before the conclusion of the investigation.

Six of the accused persons, excluding Chief Leonard Unogu (6th accused) were dissatisfied with their conviction and sentence by the trial Court and filed separate appeals as follows:

CA/PH /171A/2004: Rufus Anyanwu (4th accused).
ii, CA/PH/171B/2004: Ebenezer Egwuekwe (3rd accused).
iii. CA/PH/171C/2004: Vincent Duru (7th accused).
iv. CA/PH/171D/2004: Alban Ajaegbo (1st accused/appellant).
v. CA/PH/171E/2004: Sampson Nnamito (2nd accused)
vi. CA/PH/171F/2004: Lawrence Eboh (5th accused).The appeals were consolidated but each appeal was considered on its individual merit. In a well considered judgment delivered on 5/4/2013, the appeals of Rufus Anyanwu, Ebenezer Egwuekwe and Lawrence Eboh were allowed. They were acquitted and discharged. The appeals of the present appellant, Sampson Nnamito and Vincent Duru were dismissed. Their convictions and sentences were affirmed.The appellant is wholly dissatisfied with the judgment and has further appealed to this Court vide his Notice of Appeal filed on 4/5/2012 containing 5 grounds of appeal. At the hearing of the appeal on 22/2/2018, Emeka Ozoani Esq., leading Messrs. J.I. Nwatu and A.G. Udeaga adopted and relied on the appellant’s brief filed on 2215/2017 in urging the Court to allow the appeal.

K.C. Nwokorie Esq., Assistant Director, Ministry of Justice, Imo State, adopted and relied on the respondent’s brief filed on 29/6/2077 in urging the Court to dismiss the appeal.

Learned counsel for the appellant formulated 2 issues for the determination of this appeal as follows:
1. Whether admission and reliance on Exhibits 21 and 36 by the trial Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death is right.
2. Whether the circumstantial evidence relied upon by the trial High Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death is cogent, irresistible and compelling.

Learned counsel for the respondent also formulated 2 issues to wit:
1. Whether the admission of Exhibits 21 and 36 by the trial Court and affirmed by the Court of Appeal was proper in law, and if having admitted them, any probative weight and value was accorded them which occasioned a miscarriage of justice on the appellant.
2. Whether the other (circumstantial) evidence relied upon by the trial High Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death were justifiable from the printed records of appeal.

The issues formulated by both parties are quite similar with slight variation in the wording. Accordingly, I shall adopt the issues as formulated by learned counsel for the appellant in the resolution of this appeal.

Issue 1
Whether admission and reliance on Exhibit 21 and 36 by the trial Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death is right.

Appellant’s submission
Learned counsel prefaced his submissions by acknowledging that the gruesome murder of the young Ikechukwu Okoronkwo was despicable and barbaric and must be condemned by all right thinking members of the society.

Learned counsel submitted that at the time Exhibits 21 and 36 (statements of Ekeanyanwu) were sought to be tendered, objections were raised to their admissibility. The objections were overruled. He noted that with regard to Exhibit 21, the learned trial Judge held, inter alia:
“The issue before the Court is the murder of Master Ikechukwu Okonkwo. In the statement sought to be tendered he narrated how he killed the boy whose head was found in his possession and why he killed him etc.

In the circumstances therefore, I hold that the statement sought to be tendered is relevant and admissible in evidence. I accordingly admit it in evidence and it is marked
Exhibit No. 21.”

He noted further that as regards Exhibit 36, similar objections were raised and the trial Court similarly overruled the objections on grounds of relevance and admitted it in evidence. He submitted that notwithstanding the fact that the learned trial Judge, in the course of reviewing the evidence, stated that he would concentrate on other evidence outside Exhibits 21 and 36, he relied extensively on the contents of the two statements in reaching his conclusions. He referred to several passages in the judgment to buttress this submission.

He submitted that the learned Justices of the lower Court agreed with the admission and use made of the Exhibits by the learned trial Judge. He argued that even if the Exhibits were admitted with the consent of the parties they remain inadmissible in law. He contended that if the lower Court had appreciated their inadmissibility, it would have avoided the adverse effect they had on the entire judgment and it would have found otherwise.

He relied on: Minister of Lands Western Nigeria Vs Azikiwe & Ors. (1969) ALL NLR 48.

Referring to Section 251 (1) of the Evidence Act, he conceded that it is not in every case that the wrongful admission of evidence would result in the decision being set aside, especially where it appears to the appellate Court that the decision would have been the same even without the admission of the inadmissible evidence. He referred to Ajayi vs Fisher (1956) 1 FSC 90; R Vs Thomas (1958) 3 FSC 8; R Vs Abdundu (1959) 4 FSC 70.He submitted that Exhibits 21 and 36 weighed heavily in the mind of the learned trial Judge when he proceeded to convict and sentence the appellant to death, which decision was affirmed by the lower Court.

Respondent’s submissions
In response, learned counsel for the respondents submitted that the statements were properly admitted in evidence and rightly affirmed by the lower Court on grounds of relevance, as they were the statements made to PW4 and PW1 by the main suspect, Ekeanyanwu, in the course of their investigation. He also relied on Section s 1, 4, 6 (1), 7 & 8 of the Evidence Act, and submitted that proper foundation was

laid before the statements were tendered and admitted in evidence. He urged this Court to uphold and affirm the finding of the learned trial Judge that Exhibits 21 and 36 are relevant because it was not possible for the Court to inquire into the culpability of the accused persons while closing its eyes as to how and what killed him. He also urged us to uphold the finding of the lower Court at page 1224 of Vol. 2 of the record to the effect that the Court was entitled to rely on any information discovered as a result of information received from a person accused of an offence (i.e. Exhibits 21 & 36) and that any fact so discovered may be given in evidence where the information itself would not be admissible evidence.

He submitted that there are concurrent findings of fact on this issue which should not be disturbed by this Court unless it is shown that the findings are perverse. He referred to: NYESOM V. PETERSIDE (2016) ALL FWLR (PT. 842) 1582; OGOALA V. THE STATE (1991) 3 SCN 61.

As to the weight and probative value placed on Exhibits 21 and 36 by the two lower Courts in reaching their concurrent findings, he contended that the Courts did not give any weight or probative value to the statement.

He noted that the learned trial Judge at page 764 of the record cautioned himself by stating that he would concentrate on other evidence outside Exhibits 21 and 36 in deciding the case. At pages 8 and 9 of his brief, he set out several passages from the judgment to buttress his assertion. He argued that references made to the exhibits were in the course of comparing their content with the evidence of other witnesses, such as PW11, PW5, PW6, PW7, PW8, PW9 and PW10. He contended that what the learned trial Judge relied upon in convicting the appellant was the circumstantial evidence led by all the prosecution witnesses. He maintained that the findings were apt and based on perverse correct principles of law and procedure. He submitted that the lower Court was right when it held that the prosecution was able to garner snippets of information against the 1st, 2nd and 7th accused, which corroborated the facts in Exhibit 35.

Learned counsel urged this Court to discountenance all the authorities cited by learned counsel for the appellant and to hold that there has been no miscarriage of justice.

Resolution of Issue 1
By virtue of Section 135 of the Evidence Act, 2011, the prosecution has the onerous burden of establishing the guilt of an accused person beyond reasonable doubt. The onus remains on the prosecution throughout and does not shift.
In other words, an accused person has no duty to prove his innocence. There is a presumption of innocence in his favour by virtue of Section 36 (5) of the 1999 Constitution, as amended. See: Mumuni Vs The State (1975) 1 ANLR 295; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Afolalu vs The State (2010)15 NWLR (Pt. 1220) 584. What is required of the prosecution is to establish the guilt of the accused with compelling and conclusive evidence. It must prove its case with a degree of compulsion which is consistent with a high degree of probability. See: Nwaturuocha Vs The State (2011) 6 NWLR (Pt. 1242) 170; Lori & Anor vs The State (1980) 12 NSCC 259; Oseni Vs The State (2012) 5 NWLR (Pt. 1293) 351; Miller Vs Minister of Pensions (1947) 2 ER 372.
In discharging the burden of proof, the prosecution may rely on any one or a combination of the following:
i. The confessional statement of the accused person;
ii. Circumstantial evidence;
iii. Evidence of an eye witness.

See:Abirifon Vs The State (2013) 13 NWLR (Pt. 1372) 587; Ogunbayode Vs The Queen (1954) 14 WACA 458; Egboghonome Vs The State (1993) 7 NWLR (Pt. 306) 383; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100 @ 120-121 H-A; Adio vs. The State (1986) 5 SC 194 @ 219-220.

In the instant case, there was no eye witness to the crime. The prosecution relied on circumstantial evidence to secure the conviction of the appellant and his co-accused.
Where the prosecution relies on circumstantial evidence, the evidence must be strong, cogent and compelling. It must point to the irresistible conclusion that the accused person committed the offence. The evidence must leave no degree of possibility or chance that another person or other persons could have been responsible for the commission of the offence. See: Ijioffor Vs The State (2001) 9 NWLR (Pt. 718) 371 @ 386 F-G. At page 387 A-B of the report, His Lordship, Ejiwunmi ISC cautioned thus:
“Circumstantial evidence must always be narrowly examined. On the other hand, it has been said that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances, which by undersigned coincidence, is capable of proving a proposition with the

accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own face but the one test that the evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence.”
See also: Obosi Vs The State (1965) NMLR 119; Lori Vs The State (supra); Chukwu Vs The State (2013) 4 NWLR (Pt. 1343) 1; Iliyasu V. The State (2015) LPELR – 24403 (SC) @ 39-40 B-A.

See: Abogede Vs The State (1996) 5 NWLR (Pt. 448) 270; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375; Olalekan Vs The State (2001) 12 SC (Pt.1) 38.

The fact that the deceased died is not in contention in this appeal. The real crux of the appeal is whether the death of the deceased resulted from the act of the appellant. As stated earlier, the prosecution called 11 witnesses and tendered documentary evidence which included Exhibits 21 and 36, the extra judicial statements of Ekeanyanwu wherein he not only admitted committing the offence but also named the appellant as one of those who assisted him in carrying out the dastardly act.
It is the contention of learned counsel for the appellant that the learned trial Judge relied excessively on the contents of those statements in determining the appellant’s guilt and that the lower Court fell into the same error.
I deem it expedient to consider first what the position of the law is regarding a statement made by a person accused of committing a crime which implicates a co-accused. Some relevant provisions of the Evidence Act, which will aid in this exercise are Sections 1, 4, 5, 6(1), 29(4) and 30.

They provide as follows:
1: Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant and of no others.
Provided that –
(a) the Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force,
4: Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places.
5: Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue; or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction are relevant.
6(1): Any fact is relevant, which shows or constitutes

a motive or preparation for any fact in issue or relevant fact.
29(4): Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
30: Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of the fact, together with evidence that such discovery was made in consequence of the information received from the defendant may be given in evidence where such information itself would not be admissible in evidence.
I also deem it appropriate at this stage to reproduce part of the statement of Ekeanyanwu admitted in evidence as Exhibit 36. The statement is at pages 931-932 of the record:

“Further to my previous statement made earlier today 20/9/96, I now want to say the truth of what happened between me and the deceased. The deceased boy I killed was passing with a tray of cooked groundnut. I called him to come make I buy groundnut. By this time I dey for Otokoto
Hotel gate. When the boy reached me, I took four groundnut for taste. Then I asked the boy to follow me to my room at Otokoto Hotel Amakohia Owerri. When the boy follow me reach my room, I told him I will buy all the groundnut with him and that I will pay when myself and my co-workers who are living with me in the same must have finished chopping the groundnut. My co-workers names are Sampson Luamuta and Alban Ajaegbu. As we they chop the groundnut I go buy one bottle of cocoa cola and gave the boy. When the boy finish drinking the cocoa, he sleep off When the boy dey sleep I go tell our Director, Chief Vincent Duru that we don get one boy he said we should look for. He then directed me to kill him as we dey kill before and cut off his head and the penis and bring to him. When I get back to my room I told my room mates, Sampson Luamuta and Alban Ajaegbu what the Chief Vincent Duru, the Managing Director of the Hotel has said.

Then I cut one short stick tie one end with cloth and enter my room. As I entered my room, I told Sampson Luamuta and Alban Ajaegbu to help me hold the boys legs and hands. As the boy come wake up and was about to cry I forced that cloth end of the stick into his mouth to prevent him from shouting or crying. From my room myself, Sampson Luamuh and Alban Ajaegbu caried the boy inside bush behind our room in the Hotel premises. At the bush, I brought out my matchet and cut off the boys head. I do not know the boy’s name and I did not ask of his name. After cutting the boy’s head, I also cut part of the boys penis.
After cutting off the boys head and part of the penis, myself, Sampson Luamuta and Atban Ajaegbu dig small grave and put the boys body inside the grave.
The law is well settled that the cardinal consideration in the admissibility of a document is relevance. Once a document is relevant to the facts in issue and is legally admissible, it would be admitted in evidence. See: Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558; B.O.N v. Saleh (1999) 3 NWLR (Pt. 981) 145; Torti v. Ukpabi (1984) 1 SCNLR 224; Okoye v. Obiaso (2010) 8 NWLR (Pt. 1175) 145. Ordinarily, by virtue of Section 37 of the Evidence Act, a statement, oral or written made by a person not called to

testify, is hearsay and inadmissible in evidence. However there are exceptions to this rule. Section 39 of the Evidence Act makes admissible a statement, oral or written of facts in issue or relevant facts where the maker is;
(a) dead,
(b) cannot be found,
(c) has become incapable of giving evidence or
(d) whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court to be unreasonable, if it falls within Sections 40 – 50 of the Act.
Exhibits 21 and 36 do not fall within Sections 40 -50 the Act.
By virtue of Sections 1, 4, 5 and 6 (1) of the Evidence Act, there can be no doubt that evidence relating to the manner in which the deceased met his death and those involved in the crime are relevant facts. Also relevant is the fact that in the course of the investigation, PW4 and PW11 obtained statements from Ekeanyanwu, who was found in possession of the severed head of the deceased, wherein he confessed to the crime. In so far as Exhibits 21 and 36 are of statements recorded by pW4 and PW11 in the course of

their investigation, the statements are relevant only to the extent that Ekeanyanwu made them. It must however be pointed out that there is a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to it will depend on the purpose for which it was tendered. It is an established fact that the maker died in prison custody before the trial began.
As pointed out by learned counsel for the appellant, at the time Exhibit 21 was sought to be tendered through PW4, an objection was raised regarding its admissibility by learned counsel representing some of the accused persons. Responding to the objection, the learned prosecutor stated thus at page 101 of the record:
“We are not seeking to tender this document to establish the truthfulness of its content but for the Court to know that this document was made. We have not asked the Court to attach
any weight to it … It is for the Court to look at it when the time comes, to know what the contents are and what weight to be attached to it.”
(Underlining mine)

The learned trial Judge, after due consideration of the arguments on either side, held that the statement was relevant and admitted it in evidence as Exhibit 21. Exhibit 36 was admitted on similar grounds after objections to its admissibility were overruled. It is therefore established on the record that the Exhibits were tendered merely to establish the fact that they were made and not to establish the truth of their content. The learned trial Judge recognized this fact when he stated at pages 764 of the record:
“For the purpose of this judgment, I will concentrate on other evidence excluding Exhibits 21 and 36 in the determination of the guilt or innocence of the accused persons. If in the course of doing so, and as events unfolds, it becomes inevitable to look at Exhibits 21 and 36 as I have been called upon to do by the prosecution, I shall look at it and no more.”
(Underlining mine)
At pages 800 to 801 of the record, the learned trial Judge stated:
I observed while looking at Exhibit 36 that all that were narrated in Exhibit 36 were the same as the evidence led by the prosecution.

However, Exhibit 36 has not in any way weighed on my mind in the determination of the innocence or guilt of the seven (7) accused persons. I say so because this Court would still have arrived at the same findings of facts without looking at Exhibit 36. It is so since other evidence adduced by the prosecution excluding Exhibits 21 and 36 were more than sufficient to ground a conviction
I find as a fact that Atban Alaegbu 1st accused and Sampson Nnamito 2nd accused aided the murder of the deceased lkechukwu Okoronkwo.”
The Court below held that the statements were rightly admitted in evidence under Sections 4 & 5 of the Evidence Act and rightly acted upon by the learned trial Judge. It held that facts discovered as a result of Exhibit 36 were admissible by virtue of Section 30 of the Act.
I have carefully examined pages 768 – 770 of the record where the learned trial Judge considered the evidence in relation to the appellant. It seems to me that Exhibits 21 and
36, particularly Exhibit 36, was the yardstick against which other evidence in the case was measured. In other words, the learned trial Judge accepted the contents of Exhibit 36

as the whole truth of what transpired on the fateful day and sought to ascertain whether it was corroborated by other evidence led by the prosecution, as if it was dealing with the confessional statement of an accused person standing trial before it. I am of the considered view that in so far as the Exhibits were not tendered as proof of their contents, the learned trial Judge was wrong to have used their contents as the basis on which to evaluate the evidence before him. The
Court below also fell into the same error when at page 1221 of the record, His Lordship who wrote the leading judgment stated thus:
“To that end I have to consider the evidence led on the record in order to see whether the learned trial Judge drew the right inferences on the evidence adduced at the trial in coming to the conclusion that the appellant is guilty of the murder of lkechukwu Okoronkwo.
In that respect, I find it pertinent to point out that the starting point of the prosecution’s case against the appellant is undoubtedly Exhibit 36. Exhibit 36 is the Statement of Innocent Ekeanyanwu who confessed to killing the deceased. <br< p=””

</br<

It was the said Innocent Ekeanyanwu who mentioned the appellant as one of the persons who aided him in the actual act of the killing. I had held in Appeal No. CA/PH/171C/2004 that the statement i.e. 36 is admissible as a relevant fact under Sections 4, 5 and 30 of the Evidence Act.”
Thereafter, His Lordship reproduced the portion of Exhibit 36 reproduced earlier in this judgment. The law is quite well settled that a statement amounting to a confession may be used against the maker alone. It cannot be used against any of his co-accused unless it was made in his presence and he adopted it by words or conduct. See: Section 29(4) of the Evidence Act. Also: Ozaki & Anor V. The State (1990) 1 NWLR (Pt. 124) 92; State V. Gwangwan (2015) LPELR – 24837 (SC) @ 28-29 E-C; Suberu V. The State (2010) 8 NWLR (Pt. 1197) 586.
There was no evidence before the trial Court to show that Exhibit 36 was made in the appellant’s presence or that he adopted it by words or conduct. It was not a dying declaration under Section 40 of the Evidence Act. There is no evidence that Ekeanyanwu was under any apprehension of impending death when Exhibits 21 and 36 were made.
I have considered Section 30 of the Evidence Act reproduced earlier in this judgment and relied upon by the lower Court and learned counsel for the respondent. What it provides is that evidence may be given of any fact discovered as a

result of information received from a person accused of an offence together with evidence that such discovery was made in consequence of the information received from the defendant where such information itself would not be admissible in evidence. I am of the considered view that this Section cannot be called in aid to determine the culpabillty of the appellant. Since the purpose of tendering Exhibit 36 was only to prove that it was made, it was not proper for the Court to use its contents as established facts. I hold that although Exhibits 21 and 36 were relevant and admissible, their only purpose was to prove that Ekeanyanwu made the Statements to the Police before his death and that as a result of the Statement the headless corpse of the deceased was found in a shallow grave behind the hotel. The statements therein implicating the appellant could not be used against him.
This issue is accordingly resolved in favour of the appellant.

Issue 2
Whether the circumstantial evidence relied upon by the trial High Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death was cogent, irresistible and compelling.

Appellants submissions
Learned counsel for the appellant answered this question in the negative. He referred to the findings of the learned trial Judge at pages 768-770 of the record, which were affirmed by the lower Court at page 1226 of the record. He submitted that the learned trial Judge relied on the following facts in determining the guilt of the appellant:
a. That because the appellant was at the gate of the hotel in 19/9/96 when the murder of the deceased took place, he must have participated in luring him into the hotel.
b. That because he claimed not to know who farmed on the land behind his room, he must have participated in the crime.
c. That because he did not mention the names of those he saw eating groundnuts he must have been complicit in the crime.
d. That having later in Exhibit 39 stated the names of those he saw eating the groundnuts, he must have known what happened to the deceased thereafter.

He submitted that where the circumstantial evidence led by the prosecution is capable of two or more interpretations, it cannot be said that such evidence is cogent with the

mathematical exactness to fix the appellant with the commission of the murder. He relied on Valentine Adie vs The State (1980) ALL NLR 39 @ 49. He submitted that the facts relied upon by the two lower Courts could not lead to the irresistible conclusion that the appellant committed the crime. He noted that in the course of the judgment at pages 773-774 of the record, the learned trial Judge erroneously stated that circumstantial evidence is unnecessary in a charge of murder when the killer of the deceased confessed to the crime and yet earlier at page 763 of the record had observed that the prosecution’s case was based on circumstantial evidence. He submitted that the learned trial Judge was approbating and reprobating and that the doubt raised thereby should be resolved in the appellant’s favour. He referred to: State Vs Ogbubunjo (2001) 2 ACLR 527; Atano vs. A.G Bendel State (1988) 2 NWLR (Pt. 75) 2001. He submitted that the appellants conviction was based on suspicion and cannot be allowed to stand. He referred to State Vs Ogbubunjo (supra) @ 540. He submitted that the prosecution’s case fell short of the standard required by law

and that it would amount to a miscarriage of justice to allow the conviction to stand.

Respondent’s submissions
Learned counsel for the respondent submitted that the learned trial Judge drew the right inferences from the circumstantial evidence before it. He referred to the following facts:
1. The appellant shared a room with Innocent Ekeanyanwu & Sampson Nnamito (2nd accused) in the hotel where he worked.
2. The headless body of the deceased was exhumed from where it was buried in a farm cultivated by the wife of the 7th accused, which is a few metres from the room occupied by appellant and where he had lived for 17 years.
3. That the appellant never left the hotel premises on 19/9/96 and took part in the murder of the
deceased.
4. That the appellant participated in the burial of the deceased,
5. That in the appellant’s initial statements to the Police, Exhibits 22 and 23, he denied committing the offence and denied seeing anyone eating the cooked groundnuts which the deceased was hawking. That he later made Exhibit 39 wherein he admitted seeing Ekeanyanwu, the 2nd and 5th

accused eating cooked groundnuts in the corridor, although he denied eating any of the groundnuts himself.

He argued that the learned trial Judge was right in drawing the inference that the appellant changed his story regarding those he saw eating groundnuts in Exhibit 39 because the situation had changed and he realized that his earlier denial was not credible. He was also of the view that the learned trial Judge drew correct inferences from the fact that the appellant seemed to have a selective memory of facts relating to the day of the incident. He referred to: Oloshe Vs Ogunbode (2003) FWLR (pt.148) 1329 to the effect that once the trial Court, which had the primary function of evaluating the evidence and ascribing probative value thereto had performed its duty and made findings of fact supported by the record, an appellate Court ought not to intervene. He also cited: Akinloye vs Eyiyiola (1976) NMLR 92; Woluchem Vs Gudi (1981) 5 SC 291; Amadi vs Nwosu (1992) 5 NWLR (pt. 241) 280.

He submitted that the concurrent findings of fact by the two lower Courts are not perverse and should not be disturbed by this Court.

Resolution of Issue 2
As stated earlier in this judgment, where the Court relies on circumstantial evidence to convict an accused person, the evidence must be cogent and compelling and must point irresistibly to the accused person as one of those who took part in the crime. It must not admit of any other possibility.

Now, I have also held in the course of resolving the first issue that the learned trial Judge, although stating that he would consider other evidence led by the prosecution, excluding Exhibits 21 and 36, did in fact rely heavily on Exhibit 36 in reaching his conclusions.

I have painstakingly reviewed the evidence led by all the prosecution witnesses in this case. The facts established are as follows:
a) The deceased was hawking groundnuts in the Otokoto Hotel premises on the day he was killed,
b) Ekeanyanwu was arrested with a severed head on 20/9/1976 and confessed to PW4 and PW11 that he killed the deceased. Initially, he told them he buried the deceased at Mba River. He later confessed that he buried the deceased at the back of the hotel.

c) As a result of his confession, a shallow grave containing the headless corpse of the deceased was found in a cassava farm behind the hotel belonging to the wife of the 7th accused (the owner of the hotel).
d) The appellant, a cleaner at the hotel shared a room with Ekeanyanwu and Sampson Nnamito (2nd accused).
e) The appellant had resided in the room for 17 years.It is important to note that the only “evidence regarding the appellant’s participation in the crime came from Exhibits 21 and 36. There was no evidence from any of the prosecution witnesses that he was seen with the deceased at any time on 19/9/1996 or with his roommate, Ekeanyanwu. There was also no evidence outside those two Exhibits linking him with the eating of the groundnuts hawked by the deceased.In Exhibit 22 made on 24/9/1996 the appellant denied any knowledge of the offence. The statement was made after the discovery of the shallow grave on 23/9/1996 and after Ekeanyanwu’s confession in Exhibit 36, which was made on 20/9/1996. In that statement, the issue as to whether he saw anyone eating groundnuts did not arise at all. Exhibit 39 was made on 25/9/1996. It is a more detailed statement. Therein he stated inter alia:<br< p=””</br<

“On same Thursday 19/9/95 at about 9am I left the hotel bar to my room to collect Omo detergent for scrubbing the bar floor. At the pavement in front of my room I saw some workers eating cooked groundnut contained in a white polythene bag. These workers I saw eating groundnut are (1) Robinson Ndukwu, Chief Security, (2) Lawrence Eboh, Mathew Anyanwu and Sampson Luamuta (sic). It was Innocent Ekeanyanwu who bought the groundnut inside Otokoto Hotel premises or outside the premises. (p. 943 of the record).

In Exhibit 23 made on 29/9/96 (page 858 of the record), he again denied committing the offence and denied knowledge of the burial of the deceased. Appraising these Exhibits, the learned trial Judge held at page 768 of the record:
In his statement to the Police Exhibits 22 and 23 his attitude was that of total denial. He didn’t even admit he saw people eating the cooked groundnuts which the boy Ikechukwu Okoronkwo was hawking before he met his death. Later on the 25/9/96, he made Exhibit 39. In Exhibit 39, this time he admitted that he saw Innocent Ekeanyanwu with Sampson Nnamito, the second accused, Lawrence

Eboh, the 5th accused eating the cooked groundnuts but he denied taking part.
Why did DW1 suddenly remember that he saw those who ate cooked groundnuts hawked by Ikechukwu Okoronkwo before he was killed
Why was DW1 afraid to mention cooked groundnuts let alone those who eat (sic) the cooked groundnuts. The reference drawn from the denials is that as at the 25/9/96 when DW1 made Exhibits 39, the situation had changed. He then realized how unbelievable his story sounded and decided that he knew those who ate the groundnuts.
The lower Court agreed.

The question is whether the correct inference was drawn from these facts It is evident from the excerpt of the judgment reproduced above that Exhibits 22 and 23 were lumped together as if the were made at the same time and before Exhibit 39. It is noteworthy that the three statements were made after the confession of Ekeanyanwu in Exhibit 36 and after the exhumation of the body of the deceased.
Secondly, Exhibit 22 made on 24/9/96 was a brief denial of any knowledge of the offence. Exhibit 39 made the following day was much more detailed and mentioned the names of

those he saw eating groundnuts. Exhibit 23, which was made four days after Exhibit 39 maintained the earlier denial. There was no evidence before the learned trial Judge as to what situation had changed between 24/9/96 and 25/9/96 to warrant the inference that the appellant came to the realisation that his earlier denial was not credible. The inference drawn was speculative. The Court is not permitted to speculate on evidence not before it.

The learned trial Judge found at pages 768 and 769 of the record that having testified that he had worked at the hotel for 17 years, his statement that he did not know who owned the farm behind his room from where the body of the deceased was exhumed was not credible.
The learned trial Judge held:
The 1st accused admitted he was at the gate at the entrance of the hotel as a guard, and from the evidence which I believe, he participated in eating the cooked groundnuts, cannot pretend to be ignorant of the events that followed after the eating of the cooked groundnuts which the boy hawked before he was murdered.
The Court surmised atpage770:
If he was able to give account of those who ate the

cooked groundnuts hawked by Ikechukwu Okoronkwo before his death in his Exhibit 39, then he couldn’t have known those who took part in eating of the groundnut without being a party to it or being physically present. If that is so then he should give account of what happened to the hawker thereafter.

The Court below affirmed the finding above. Both the lower Court and the trial Court took the view that having regard to Ekeanyanwu’s statement in Exhibit 36 that the appellant participated in eating the groundnuts hawked by the deceased, the reason for the appellants denial was because he realised that if he admitted eating the groundnuts it would mean he must have seen the deceased.
The lower Court held at page 1223 of the record:
He failed to understand that at the time the groundnut was being eaten, the deceased was in the room he shares with Ekeanyanwu. Having gone into the room to collect detergent he must have seen the deceased. This is moreso since he did not say that he saw the deceased in the corridor when the groundnut was being eaten. The learned trial Judge was therefore right in drawing the inference that

the denials of the appellant only made the inference of guilt against him stronger.”
(Underlining mine)

It must be re-stated here that the appellant was charged with the murder of the deceased. The prosecution therefore had the burden of proving beyond reasonable doubt that it was the act of the appellant that caused the death of the deceased. The appellant had no burden to prove his innocence.

I am of the view that the circumstantial evidence in this case did not point irresistibly to the appellant’s guilt. There is no doubt that the two lower Courts were of the view that the appellant’s defence raised a lot of suspicion. The law is that suspicion, no matter how grave cannot take the place of legal proof. See:Abieke Vs The State (1975) 1 ALL NLR (Pt. II) 57; Bozin vs. The State (1985) 2 NWLR (Pt. 8) 465; State vs. Ogbubunjo & Anor. (2001) 2 NWLR (Pt. 698) 576; Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31.

The fact that the appellant shared a room with Ekeanyanwu or that he lied about who owned the farm behind his room despite having lived there for 17 years is not sufficient to draw the inference that he murdered the deceased. The fact

that he testified that he went into his room to collect detergent at the time Ekeanyanwu and other hotel workers were eating groundnuts outside the room is also not sufficient to draw the inference that he murdered the deceased. Even if he saw the deceased in the room and lied about it, it cannot lead to the inference that he killed the deceased. It is also well settled that the mere fact that an accused person told lies is not proof of his guilt nor does the fact that he told lies relieve the prosecution of its duty of proving the guilt of the accused beyond reasonable doubt. See Okpere vs. The State (1971) ANLR 1; Omogodo v. The State (1981) LPELR-24879 (SC)@ 21-22 E-B.

As I had observed earlier, the two Lower Courts used Exhibit 36 as the yardstick by which the evidence led by the prosecution was measured. They were fully swayed by the implication of the appellant by Ekeanyanwu. Without the reliance placed on Exhibit 36, the circumstantial evidence in
this case could not be said to lead irresistibly to the appellant’s guilt.

There is no doubt that the facts of this case were gruesome and most pathetic. An innocent young boy,<br< p=””

</br<

brutally decapitated for ritual purposes. The evidence required to convict any accused person of the offence must meet the standard of proof beyond reasonable doubt. The prosecution did not meet that standard in this case. I am of the considered view that without the reliance placed on Exhibit 36, the Courts would have reached a different conclusion.

Although this Court is always reluctant to interfere where the two lower Coutts have made concurrent findings of fact, I am satisfied that the interference of the Court is warranted in this case. This issue is accordingly resolved in the appellant’s favour.

In conclusion, I hold that there is merit in this appeal . It is allowed. The judgment of the Court of Appeal delivered on 5/4/2012 affirming the appellants conviction and sentence by the trial Court is hereby set aside. Accordingly the appellant is acquitted and discharged.
Appeal allowed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC just delivered. I entirely agree with the reasoning and conclusion therein that the appeal be allowed.

The two issues distilled by the appellant as arising for the determination of the appeal read:-
(1) Whether admission and reliance on Exhibits 21 and 36 by the trial Court and affirmed by the Court of Appeal in convicting and sentence the appellant to death is right.
(2) Whether the circumstantial evidence relied upon by the trial High Court and affirmed by the Court of Appeal in convicting and sentencing the appellant to death is cogent irresistible and compelling

I take the liberty of relying on the summary of the facts of the case that brought about the appeal as captured in the lead judgment in emphasizing the principles which necessarily determine the appeal.

Learned respondent’s counsel contends that exhibits 26 and 32 are not only admissible but reliable proof of appellant’s culpability. He also suggests that if the two exhibits are excluded the circumstances surrounding the death of eleven year old Anthony lkechukwu Okoronkwo irresistibly point at the appellant and are cogent and compelling enough to warrant the inference of his culpability. Learned appellant’s counsel insists, and rightlyin my view, that learned

respondent’s counsel is wrong.

Now, to establish the offence of murder under Section 319(1) of the Criminal Code CAP 30 Vol. II Laws of the Eastern Nigeria applicable to lmo State against the appellant, the respondent must prove beyond doubt:-
(i) That Anthony lkechukwu Okoronkwo has died.
(ii) That his death was caused by the appellant.
(iii) That the appellant had intentionally caused the death of the deceased.
See R. v. Nwokocha (1949) 12 WACA, Uguru V. State (2002) 9 NWLR (Pt 771) 90 and Sabina Chikaodi Madu V. The State (2012) LPELR-7867 (SC).

The fact of the death of Anthony lkechukwu Okoronkwo is not in dispute. The act or omission of the appellant and his intention to cause the death of the deceased however appear to remain intriguing. In resolving the 1st issue, therefore, it must be answered whether the two Courts are right in their concurrent findings that exhibits 26 and 36 provide the evidence of those crucial and seemingly outstanding facts.
Being the confession of a person jointly charged” for the murder of the deceased with the appellant, the two Courts by virtue of 29(4) of the Evidence Act “shall” not take

exhibits 21 and 36 into consideration as against the appellant in the absence of evidence of the fact of appellant’s adoption of the said confession. The failure of the two Courts to accept the distinction the law makes between the admissibility of the two exhibits and the probative value to assign to them, learned appellant’s counsel is right, is fatal to their concurrent findings of appellant’s culpability. Exhibits 21 and 36 are the extra judicial statements of Innocent Ekeanyawu, from whom the head of the deceased was recovered. The statements provided the implicating information that triggered the arrest and trial of the appellant. In the eyes of the law, exhibits 21 and 36 lack the evidentiary worth of being the Courts’ basis for the inference of appellant guilt. The respondent is not unaware of this legal truth when it retorts at page 101 of the record of appeal that the exhibits are only tendered as to the fact of their being made only and not as proof of their content. It is indeed wrong for the two Courts below to hold otherwise at pages 764 and 800 – 801 respectively.
Consistently, this Court has maintained that

the evidence contained in exhibits 21 and 36 cannot be relied upon by the respondent to sustain the conviction of the appellant unless there is evidence that the appellant has adopted them. See Fatilewa V. State (2008) LPELR-1251 (SC), Dare Jimoh V. The State (2014) LPELR-22464 (SC).

I must in conclusion state firmly that the law requires the respondent to prove the offence with which appellant is convicted beyond reasonable doubt. It allows that to be done through:
(i) Direct evidence
(ii) Circumstantial evidence and/or
(iii) The confession of the accused.
See Freeborn Okiemute V. State (2016) LPELR-40639 (SC) and Olabode Abirifon V. The State (2013) 13 NWLR (Pt 1372) 587.

In the case at hand, neither direct evidence nor the confession of the appellant has been proffered by the respondent in proving the guilt of the appellant. It has been argued that Exhibit 21 and 36 viewed along with the testimonies of the Police Officers who conducted the investigation into the case and obtained statements of those charged constitute the circumstantial evidence that sustains the conviction of the appellant.

The circumstance of and the death of the deceased is to say the least, sad, unfortunate and regrettable. There is however nothing in the evidence on record beyond the suspicion evinced by the witnesses to sustain the concurrent findings of guilt of the appellant by the two Courts. It is for the foregoing and the fuller reasons outlined in the lead judgment that I also find merit in the appeal and allow same. I abide by the consequential orders made in the said judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Kekere-Ekun, JSC, obliged me with the draft of the leading judgement delivered now. I agree with His Lordship that being meritorious, this appeal shall be allowed.

Exhibit 36 was the statement of Innocent Ekeanyanwu. He died in detention before the commencement of the trial. He confessed to killing the deceased person. Furthermore, he mentioned the appellant as one of the persons who aided him in the actual act of the killing.
Now, the entries in the said statement were neither made in the appellant’s presence nor did he adopt them. Regrettably, the trial Court accepted them as the whole truth as regards what happened on the day in question.

Unfortunately, the lower Court perpetuated the same error.
This cannot be so. A free and voluntary confession of guilt by an accused person, whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied of the truth of the confession, Edet Obasa v. The State (1965) NMLR 119; Dare Jimoh v The State (2014) LPELR – 22464 (SC); Yesufu v. State [1976] 6 SC 109. However, a man’s confession is only evidence against him and not against his accomplices. R, v. Ajani and Ors (1936) 3 WACA 3.
In effect, the confessional statement of an accused person is not binding on a co-accused person, except the statement was adopted by the co-accused person. This must be so for where an accused person makes a confessional statement to the Police as to his participation or culpability in the crime charged, he is not confessing for his co-accused person. Thus, his confession is only evidence against him and not against the co-accused person. Aikhadueki v. State (2013) LPELR-20806 (SC); Ozaki v. State

(1990) 1 NWLR (pt.124) 92; Kasa v: State [1994] 5 NWLR (pt. 344) 269, 288; The State v. James Gwangwan (2015) LPELR – 24837 (SC).
The law therefore is that the confessional statement of an accused person cannot be used against a co-accused person unless it is adopted by the said co-accused person, Ozaki v The State (supra); Suberu v The State [2010] 8 NWLR (pt. 1197) 586. For this purpose, the adoption of the statement of an accused person which would qualify the statement to be used against a co-accused person can be by words or conduct, Alarape v. State [2001] 2 SC 114; Wakala v. The State (1991) 8 NWLR (pt. 211) 552; Evbuomwan v. Commissioner of Police (1961) WNLR 257.
The appellant, from the records, neither adopted the said entries by word nor by his conduct. Thus, Innocent Ekeanyanwu’s confession could not have been used against the appellant, as the lower Courts wrongly held Ozaki v The State (supra); Suberu v The State [2010] 8 NWLR (pt. 1197) 586.

It is for these and the more elaborate reasons in the leading judgement that I too shall set aside the judgements of the lower Courts. I abide by the consequential orders in the leading judgment.

EJEMBI EKO, J.S.C.: Before now, I had the privilege of reading in draft the judgment just delivered by my learned brother, K.M.O. Kekere- Ekun, JSC. The judgment had exhaustively interrogated the issues canvassed in the appeal. I hereby concur on the resolution of each issue which invariably leads to the appeal being allowed. I hereby adopt the reasoning and conclusions on the issues canvassed in the appeal.

Exhibits 21 and 36 played enormous roles or part in the reasoning and conclusions of both the trial Court and the Court of Appeal. They impacted a lot on the minds of both Courts. Both exhibits form part of the case presented by the prosecutor in the discharge of his onerous burden of proving the guilt of the Appellant beyond reasonable doubt for the offence of murder contrary to Section 319(1) of the Criminal Code Law Cap. 30 Vol. II of the Laws of Eastern Nigeria applicable in lmo State.

Exhibits 21 and 36 are confessional statements made by one Ekeanyanwu, now deceased. He was one of the accused persons. He died before the conclusion of the prosecution case.

The prosecutor tendered Exhibits 21 and 36 with a caveat. He made it very clear and expressly that he was not tendering the extra-judicial statements of Ekeanyanwu “to establish the truthfulness of (their) contents but (only) for the Court to know that these documents (were) made,” and that he did not ask “the Court to attach any weight to them” The trial Court, notwithstanding this express caveat of the prosecutor nonetheless relied on Exhibits 21 and 36 to hold that the prosecutor had established beyond reasonable doubt, by the available evidence, the guilt of this Appellant. The prosecutor had expressly made it known to the trial Court that Exhibits 21 and 36 were not tendered and admitted in evidence for the truthfulness of the contents of the two documents.

The prosecutor expressly did not want Exhibits 21 and 36 to be the basis for determining whether or not the guilt of this Appellant was established by evidence beyond reasonable doubt. By this injunction, the trial Court and the Court of Appeal therefore had no business getting into the prosecutor’s dustbin, to which Exhibits 21 and 36 were properly consigned in order scoop therefrom the inculpatory evidence in support of the guilt of the Appellant.

At the risk of repetition, the two Courts below visited the prosecutor’s dustbin, scooped therefrom the incriminating evidence on which the Appellant was convicted.

The question to ask is; who is in charge of producing the evidence that proves the guilt of the Appellant beyond reasonable doubt Certainly, it is the prosecutor. The Judex represented by the trial Court and the intermediate Court is not saddled with onus of proving the guilt of the accused person beyond reasonable doubt. The Court does not owe any such duty. The basic principles of fair hearing, one of which is nemo judex in causa sua restrains the judex from usurping that function of the prosecutor in the adversarial jurisprudence we practice. The judex cannot therefore descend into the arena and take over from the prosecutor the function of proving the guilt of the accused person beyond reasonable doubt.

Both Courts below got it wrong, albeit perversely, when they stated per contra the position of the prosecutor, that the starting point of the prosecutor’s case was Exhibits 21 and 36. The prosecutor himself had stated expressly and loudly,

that Exhibits 21 and 36 were not tendered for the truth of what was contained therein.

It appears very implicit from the body language of the two Courts below that they believed that the prosecutor was in error when he made it clear at the trial Court that he was not tendering Exhibits 21 and 36 for whatever the truth their contents may hold. It is the prerogative of the prosecutor to choose and present the evidence he thinks proves the guilt of the accused beyond reasonable doubt. Therefore, even if it was obvious that the prosecutor was mistakenly wrong in his undoubted discretion or prerogative, it is no business of the judex to correct that mistake or descend into the arena to take over the function of the judex and exercise it properly.

Without Exhibits 21 and 36 there was no “starting point.”
The two Courts below made use of the said exhibits. Given the peculiar state and circumstance of this case Section 11(1) (now S.8 (1) of the Evidence Act cannot avail the Respondent. The said Section 11(1) the Evidence Act provides:
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything

said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such Party to it.

Ekeanyanwu, the maker of Exhibits 21 and 36, had since died before the trial commenced. The prosecutor made it expressly clear that his production of Exhibits 21 and 36 was not for the purpose of proving or establishing the truth of the contents of the two documents, but only for establishing the fact the two exhibits were, as a matter of fact, made by Ekeanyanwu (deceased).

The Appellant has made out his appeal. I hereby allow it. The judgment of the Court of Appeal delivered on 5th April, 2012 affirming the conviction and sentence of the Appellant is hereby set aside. The conviction and sentence of the Appellant for murder are hereby set aside. Appeal allowed. The Appellant is accordingly acquitted and discharged.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgement just delivered by my learned brother Kekere-Ekun, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.

The reasoning and conclusion by the trial Court, as affirmed by the lower Court were based on Exhibits 21 and 36, which were confessional statements made by Ekeanyanwu who died in detention before the trial began at the High Court of lmo State. These exhibits contained statements which were not made in the presence of the Appellant herein and were therefore not adopted by him. Although the confessional statements of Ekeanyanwu were relevant and admissible in evidence by virtue of Section 39 of the Evidence Act, 2011 they cannot by virtue of the provision of Section 29(4) of the same Act be used or considered against the Appellant.
For the avoidance of doubt, Section 29(4) of the Evidence Act 2011 provides as follows:-
“Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall

not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
See Ozaki & Anor vs The State (1990) 1 NWLR (Pt. 124) 92; Suberu vs The State (2010) 8 NWLR (Pt. 1197) 586.
The Appellant was not jointly charged with Ekeanyanwu, whose confessional statement was extensively considered in the judgment against him, as Ekeanyanwu died in detention, before the arraignment of the Appellant before the High Court. There is no evidence that the Appellant either by words or conduct adopted the confessional statement of Ekeanyanwu, since there is nothing to show that the statement was made in his presence.

With these few words and the more detailed reasoning in the leading judgment which I adopt as mine, this appeal shall be and it is hereby allowed. The judgment of the lower Court which affirmed the decision of the trial Court is hereby set aside and quashed. In its place, I acquit the appellant and discharge him forth with.

Appearances:

Emeka Ozoani, Esq. with him, J. I Nwatu, Esq. and A. G. Udeagha, Esq.For Appellant(s)

K.C Nwokorie. Esq. (Assistant Director Ministry of Justice, Imo State)
For Respondent(s)

Appearances

Emeka Ozoani, Esq. with him, J. I Nwatu, Esq. and A. G. Udeagha, Esq.For Appellant

AND

K.C Nwokorie. Esq. (Assistant Director Ministry of Justice, Imo State)For Respondent

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ALBAN AJAEGBO v. THE STATE(2018)

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