IMO AKPAN BASSEY v. THE STATE(2019)

IMO AKPAN BASSEY v. THE STATE

(2019) LCN/4885(SC)

In The Supreme Court of Nigeria

On Thursday, the 21st day of February, 2019

SC.900/2016

RATIO

WHETHER THE BURDEN OF PROOF IN CRIMINAL CASES IS ALWAYS ON THE PROSECUTION; WAYS BY WHICH CRIMINAL OFFENCES MAY BE PROVED

The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused. See The State Vs Idapu Emine & Ors (1992) NWLR (pt.256)656 or (1992)LPELR – 3218 (SC). The law recognises three ways of proving criminal offences namely:- (a) Through confessional statement of the accused person; or (b) By direct eye witness account of the commission of the offence charged, or (c) through circumstantial evidence. See Akpan v State (2009) 39 WRN 27; (2008)14 NWLR (pt.1106)72; Bassey v State (2012) 12 NWLR (pt.1314)209; Haruna v AG Fed (2012)9 NWLR (pt.1306)419. PER AMIRU SANUSI, J.S.C.

THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER THAT THE PROSECUTION IS REQUIRED TO PROVE IN ORDER TO OBTAIN CONVICTION AGAINST THE ACCUSED

The law is well settled that in murder cases, (as in this instant case) the prosecution, in order to obtain conviction must prove the under mentioned ingredients of the offence of murder, beyond reasonable doubt. They include the followings:- (1) That the deceased died (2) That the death of the deceased was caused by the act(s) or omission of the accused person/appellant. (3) That the act or omission of the accused/appellant was intentional or with knowledge that death or bodily harm was its probable consequence. See Okin Nsibehe Edoho vs The State (2010)14 NWLR (pt.1214) 651; Audu v State (2003)7 NWLR (pt.820)516; R. V. Nwokocha (1949)12 WACA 453; R v Owe (1961)2 SCNLR 354; State v Omoni (1969)2 ALL NLR 337. PER AMIRU SANUSI, J.S.C.

NATURE OF A CONFESSIONAL STATEMENT IN THAT CAN BE RELIED UPON IN CONVICTING AN ACCUSED; TESTS A CONFESSIONAL STATEMENT MUST BE SUBJECTED TO BEFORE IT CAN BE SOLELY RELIED UP ON IN CONVICTING AN ACCUSED

The law is trite however that such confessional statement in order to be relied on to convict an accused must be voluntarily made and must also be free, direct, positive and unequivocal and be satisfactorily proved. The law however made it desirable for the trial Court to look for some independent evidence outside the confession no matter how slight in order to determine if the circumstances made it probable that his confession was in fact true. See Haruna v AG Federation (2012)3 SC (pt. IIV)40; Ashiwe v The State(1983)5 SC Reprint); Alarape v State (2001)2 SC 114; Galadima v The State (2012)12 SC (pt.II)213; Osuagwu v The State (2013)1-2 SC (pt.I) 37. However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely (a) Is there anything outside the confession to show that it is true (b) Is it corroborated (c) Are the relevant statements made on it in fact true as they can be tested (d) Was the accused one who had the opportunity of committing the offence (e) Is the confession possible; and (f) Is it consistent with the other facts which have been ascertained and have been proved Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See Musa V State (2013)2-3 SC (pt.II)75 at 94; Nwachukwu vs The State (2007)7 SCM (pt.2)447 at 455; Ikpo v State (1995)9 NWLR (pt.421)540 at 554. PER AMIRU SANUSI, J.S.C.

WHAT THE ‘DOCTRINE OF LAST SEEN’ ENTAILS AND CIRCUMSTANCES WHERE IT WILL BE APPLICABLE

Again in this present case, the ‘Doctrine of Last Seen’ is also apposite and applicable. The doctrine means that a person last seen with a deceased bears full responsibility of his death. In short, where an accused person was the last to be seen in the company of the deceased and circumstantial evidence overwhelmingly leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give proper explanation as to how the deceased died. See Haruna v AG Federation (supra). In the absence of sufficient explanation, the trial Court in this case was right in drawing the inference that it was the appellant that killed his two children. See Igabele V State (2006) 6 NWLR (pt.975)100; Sabina Chikaodi Vs The State (2012)LPELR – 7867 SC; Obosi v State (1955) NMLR 140. From the facts and circumstances of this case the two deceased children were throughout their lives in custody of their father, the accused/appellant herein and he confessed throwing them into the river. There is therefore the presumption that he was the one who murdered them since he failed to rebut such presumption. He is therefore culpable as he had advanced no evidence to exculpate himself from guilt. The circumstantial evidence is overwhelming and points to no one else but the accused/appellant. See Rabi Ismail v The State (2011) LPELR 9352(SC). PER AMIRU SANUSI, J.S.C.

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

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

AMIRU SANUSI Justice of The Supreme Court of Nigeria

Between

IMO AKPAN BASSEY Appellant(s)

AND

THE STATE Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This is a criminal appeal against the judgment of the Calabar division of the Court of Appeal (“the lower or court below” for short) delivered on 26th day of April, 2016 which affirmed the decision of the Akwa-Ibom State High Court, Uyo judicial division (Coram Imeh E. Umanah J) of 30th day of June, 2011 in Suit No.HU/21C/2007 wherein the accused person now appellant, was convicted of the offence of murder and sentenced to death. The offence with which the accused/appellant was charged and tried was that of murder, contrary to Section 323 (1) of Criminal Code, Cap 38 Vol.II, Laws of Akwa-Ibom State.

FACTS OF THE CASE
The facts of the case leading to this appeal as could be gleaned from the record of appeal are briefly put thus:-
The case of the prosecution was that one Emem Effiong Etuk (an estranged wife of the accused (complainant) travelled to pay a visit to the accused person/appellant who was keeping custody of her two children, namely Philip Imon Akpan and Magdalene Imoh Akpan at Udem Ebom, after she was informed that the accused/appellant had relocated to

Mbiabong (the last known address of the accused) to the said Ndom Ebom. It was also the case of the prosecution that the complainant did not meet the two children and when she asked of their whereabouts the appellant could not give reasonable or satisfactory explanation. Sequel to that, the complainant reported a case of child stealing at Ifia-gon Police station and the accused/appellant was thereupon arrested. The appellant initially informed the police that he sold the two children to one “Alhaji” at the cost of N100,000. The case was later transferred to the State CID where the accused person thereupon volunteered two statements, dated 16/12/2007 and 17/1/2007 both of which were tendered at the trial and admitted as Exhibits A and B respectively.

In Exhibit A, the appellant stated that he sold the two children, but further investigation revealed that he actually killed the two children to which he later confessed in Exhibit B. Both of them were aged three years at the time of their untimely death.
Investigation further revealed that the appellant threw them into the river leading to the High Sea at Oron.

During the trial, the appellant as accused person, testified for his defence, wherein he stated that the cause of their death was due to accident which occurred while travelling by water with the two children in a boat. At the end of the trial the trial judge found the appellant guilty of murder and sentence him to death.

Dissatisfied with his conviction and sentence to death by the trial Court, the appellant unsuccessfully lodged an appeal at the lower Court below.

As has been the practice in this Court, briefs of argument were filed and exchanged by parties. The appellant’s brief of argument settled by Chioma A. Wogu was filed on 30th November, 2016 wherein, the appellant decoded a lone issue for the determination of the appeal which was couched thus:-
“Whether the Court of Appeal was right in affirming the conviction of the appellant for murder having regard to the evidence before the Court.” (Distilled from Grounds 1 – 7 of the Notice of Appeal)

On its part, the respondent herein, after being served with the appellant’s brief of argument also filed its own brief of argument on 13th March, 2017 settled by the Hon. Attorney General of Akwa-Ibom State, Uwemedimo Nwoko Esq

in which the learned Attorney General also proposed a sole issue for determination which is similar to the lone issue raised by the appellant but merely differ in the way they were couched. The sole issue the Hon. Attorney General raised reads as follows:-
“Was the Court of Appeal (lower Court) not right in affirming the conviction and sentence of the appellant for murder of the deceased”

In view of the similarity in the two sets of issues, I resolve to be guided by the appellant’s proposed issue in determining this appeal due to its elegance and all encompassing nature.

SUBMISSIONS OF LEARNED COUNSEL ON THE SOLE ISSUE
APPELLANT’S SUBMISSION
The sole issue deals with whether the Court below was right in affirming the conviction of the appellant. The learned counsel to the appellant submitted that the Court below was wrong in affirming the judgment of the trial Court having regard to the evidence on record. He contended that both the trial and lower Courts decided to pick between the two(2) drastically different statements made by the appellant within the space of one day and chose to rely and act on the

statement that points to a capital offence instead of statement pointing to a lesser offence. He argued that there was no eye witness to the circumstances leading to the death of the deceased children and that PW1 did not as much visit the scene of the alleged crime i.e. the river leading to the High Sea at Oron. He argued further, that there is no evidence as to the whereabouts of the two children till date. He submitted that there was no credible evidence on the record upon which to find that the death of the deceased children was as a result of act or omission of the appellant. He submitted that the position of the law is that where there are two inconsistent confessional statements, the trial Court is duty bound to adopt an approach that is most favourable to the accused person. He cited the case of THE QUEEN V ZAKWAKWA OF TORO (1960)NSCC 8 and the SAM v STATE(1991)2 NWLR (PT.176)PG 699 at 707. He referred to the judgment of the trial and the Courts below at page 62 of the judgment, and page 132 paragraphs 5 lines 2 to 5 of the Court below at 205-206 of the record and submitted that the position of the law is that if an accused person wishes to

deny a statement attributed to him, the time to do so is when he comes to make his defence. He therefore also submitted that the Court below was in error when it adjudged the denial as an afterthought while holding that the trial Court was right to have discountenanced it. He argued that reliance on a purported confessional statement as the Court below did, ought to result to this appeal being allowed. He argued that the Court below over looked the trial Court’s resort to speculation, in affirming the conviction of the appellant. He then urged this Court to resolved this issue in favour of the appellant and allow the appeal.

RESPONDENT’S SUBMISSION
In response to the above submissions of the appellant’s counsel on the sole issue for determination summarised above, the learned counsel to the respondent also distilled a lone issue for determination.

The issue is whether the Court below rightly affirmed the judgment of the trial Court. He submitted that the facts giving rise to the death of the deceased are not in dispute as both PW1 and DW1 in their oral testimonies have admitted to the fact of death of the deceased children. He argued that the

prosecution tendered Exhibits A and B to establish the cause of death of the deceased and same were admitted without objection from the defence. He argued that confessional statement once admitted in evidence, forms part of the case of the prosecution. He cited the case of NWACHUKWU V THE STATE (2007)17 NWLR (pt.1062)page 31. He submitted that a Court can safely convict on a confessional statement of an accused person where the statement is shown to be direct, positive, unequivocal and voluntary. He urged this Court to hold that the voluntariness of a confessional statement is established where no objection is raised as at the time same is sought to be tendered in evidence by the prosecution. He referred to the cases of ISA V KANO STATE (2016) Vol.260 LRCN 118 at 142 F and EGHAREVBA V THE STATE(2016) Vol.258 LRCN at 213 paragraph F. He submitted that confessional statement can ground or sustain conviction once the Court is satisfied with the truth of the confession by the accused person as in this instant case. He argued that the intention of a person who threw the children into a river is certainly to kill them as death is the natural consequence of such act.

On the selection of the confessional statement of the appellant, he submitted that the law governing admissibility of a confession and its relevance has been settled in plethora of decided authorities. He cited several cases including OSENI V THE STATE (2012)Vo1.208 LRCN. He contended that there was no other admissible confessional statement credited to the appellant except Exhibit B which was found to have been made voluntarily and Exhibit A has no probative value as same was greeted with element of involuntariness as admitted by the appellant himself in Exhibit “B”. He therefore submitted that the two Courts below were right in not attaching any weight to Exhibit “A”. On lack of evidence as to the cause of death, he referred to page 16 of the record where the appellant stated as follow:-
“the police cannot be liable to see or find them again because the time is far and the water must have carried them away”

He then submitted that this is sufficient enough as to the whereabout of the deceased bodies. On alleged conviction of the appellant on speculation, he submitted that a Court can rightly draw inference from the fact before it in order to arrive

at a just conclusion in a case. He referred to the case of LORI V THE STATE (1981) 1 ACLR 267, at 272. He further submitted that the Court was right to infer from the confessional statement Exhibit B which was admitted without any objection and other circumstantial evidence to convict the appellant. He then urged this Court to resolve this sole issue in favour of the respondent and to dismiss the appellant’s anneal.

RESOLUTION OF ISSUE FOR DETERMINATION
The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused.

See The State Vs Idapu Emine & Ors (1992) NWLR (pt.256)656 or (1992)LPELR – 3218 (SC).
The law recognises three ways of proving criminal offences namely:-
(a) Through confessional statement of the accused person; or
(b) By direct eye witness account of the commission of the offence charged, or
(c) through circumstantial evidence.
See Akpan v State (2009) 39 WRN 27; (2008)14 NWLR (pt.1106)72; Bassey v State (2012) 12 NWLR (pt.1314)209; Haruna v AG Fed (2012)9 NWLR (pt.1306)419.

In this instant case, the appellant faced trial on a charge of murder at the trial Court after which he was convicted and sentenced to death. He appealed to the lower Court which dismissed his appeal and affirmed the decision of the trial Court. It was when he became piqued by the dismissal of his appeal, that he further appealed to this Court. The appellant’s stances is that the prosecution, now respondent, failed to establish the charge against him beyond reasonable doubt and that the Court below erred in law when it affirmed his conviction.

The learned appellant’s counsel thereupon argued that the

ingredients of the offence of murder were not proved beyond reasonable doubt.

The law is well settled that in murder cases, (as in this instant case) the prosecution, in order to obtain conviction must prove the under mentioned ingredients of the offence of murder, beyond reasonable doubt. They include the followings:-
(1) That the deceased died
(2) That the death of the deceased was caused by the act(s) or omission of the accused person/appellant.
(3) That the act or omission of the accused/appellant was intentional or with knowledge that death or bodily harm was its probable consequence.
See Okin Nsibehe Edoho vs The State (2010)14 NWLR (pt.1214) 651; Audu v State (2003)7 NWLR (pt.820)516; R. V. Nwokocha (1949)12 WACA 453; R v Owe (1961)2 SCNLR 354; State v Omoni (1969)2 ALL NLR 337.

In the case at hand, the prosecution (now respondent), in proof of its case called one witness and also relied on the confessional statement of the accused/appellant as well as circumstantial evidence. My lords, let us now consider the evidence adduced at the trial in proof or otherwise of the offence charged vis a vis the three ingredients of the offence listed above.

The first ingredient is whether death of a human being was caused. In this case, there is the evidence of PW1 the complainant and DW1 the accused himself now appellant, when he testified for his defence.

At page 105 of the record the appellant when testifying as DW1 stated thus:-
“I know Philip Imoh Akpan and Magdalene Imoh Akpan I know them as my children. They are all dead”

Also at pages 129 lines 14-15 of the record the trial Court found as below
“From the evidence before this Court there is no doubt that Philip and Magdalene Imo Akpan are dead.”

On its part, the lower Court also found that the appellant testified as follows:-
“bodies of Philip and Magdalene Imoh Akpan were not seen. I know them as my children.
They are all dead.”

When being cross examined, DW1 (appellant) stated that the children died in 1991. The Court also found that those pieces of evidence were neither contradicted nor challenged.

The appellant, as per his confessional statement Exhibit B also admitted that he threw his two deceased children into the river. It should be noted that the said confessional statement Exhibit B was voluntarily made by

the accused/appellant and admitted in evidence without any objection. To my mind therefore, the first element of whether death had been established, had been adequately proved through those pieces of evidence highlighted above.

On the second ingredient of the offence of murder is whether the death of the two children was as a result of the act of the accused/appellant. In the present case, two voluntary confessional statements were tendered and admitted at the trial and marked as Exhibits A and B. Those confessional statements were tendered without objection. In Exhibit A the accused appellant initially stated that he sold the two children to one “Alhaji”, at Udi Street at a cost of N100,000. But in Exhibit B, the appellant denied that he sold the deceased children, but instead he confessed that he threw them into the river which leads to High sea. As I stated earlier, one of the three methods of proving criminal offence is through confessional statement. The law is trite however that such confessional statement in order to be relied on to convict an accused must be voluntarily made and must also be free, direct, positive and unequivocal and be satisfactorily proved.

The law however made it desirable for the trial Court to look for some independent evidence outside the confession no matter how slight in order to determine if the circumstances made it probable that his confession was in fact true. See Haruna v AG Federation (2012)3 SC (pt. IIV)40; Ashiwe v The State(1983)5 SC Reprint); Alarape v State (2001)2 SC 114; Galadima v The State (2012)12 SC (pt.II)213; Osuagwu v The State (2013)1-2 SC (pt.I) 37.

However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely
(a) Is there anything outside the confession to show that it is true
(b) Is it corroborated
(c) Are the relevant statements made on it in fact true as they can be tested
(d) Was the accused one who had the opportunity of committing the offence
(e) Is the confession possible; and
(f) Is it consistent with the other facts which have been ascertained and have been proved

Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See Musa V State (2013)2-3 SC (pt.II)75 at 94; Nwachukwu vs The State (2007)7 SCM (pt.2)447 at 455; Ikpo v State (1995)9 NWLR (pt.421)540 at 554. From the judgment of the trial Court, it is clear that the trial Court applied the above tests before it relied and acted on Exhibit B, especially considering the fact that the appellant stated how the two children died when he threw them into the river in Uyo Oron sometimes in 2005 and that he did so as a result of his poor condition that he had no money to feed them and that his parents died and he had no other supporter.

On the second ingredient of murder, I am also fully convinced that the two children died as a result of the dastardly act of the appellant simply on the flimsy excuse of alleged impecuniosity or poverty. The second ingredient of the offence of murder has also been established. I am also convinced that the act of the accused/appellant was intentional. He committed the offence without any provocation or physical attack before throwing

the two 3years old twins into the river. Surely, by his act, the appellant knew or had reason to believe that death was going to be the resultant effect of his cruel act.

into the river. There is therefore the presumption that he was the one who murdered them since he failed to rebut such presumption. He is therefore culpable as he had advanced no evidence to exculpate himself from guilt. The circumstantial evidence is overwhelming and points to no one else but the accused/appellant. See Rabi Ismail v The State (2011) LPELR 9352(SC).

Thus, in the light of all that I have posited above, I am fully convinced that all the three ingredients of the evidence of murder have been established beyond reasonable doubt against the appellant, as would justify the trial Court to convict the accused as charged. The lower Court was also correct in affirming the conviction and sentence made/done by the trial Court in this instant appeal. I therefore have no hesitation in resolving the lone issue in favour of the respondent against the appellant.

It is noted by me, that there are in this instant case concurrent finding of two lower Courts. As a matter of practice, this Court is always hesitant to interfere with or disturb the concurrent findings of two lower Courts except, of course, where such findings are perverse or misapplication

or misconception of law is prevalent. There does not appear to be any of such defects in this instant appeal as would warrant my interference with such findings. I therefore decline to tamper with or disturb the decision of the two lower Courts.

Apropos of the above, I find this appeal to be lacking in substance or merit. The appeal therefore fails and is accordingly dismissed. I affirm the judgment of the lower Court which had also earlier been affirmed the conviction and sentence of death passed on the present appellant by the trial Court
Appeal dismissed.

IBRAHIM TANKO MUHAMMAD, Ag. C.J.N.: This is an appeal against the Judgment of the Court of Appeal, Calabar Division, delivered on the 26th day of April, 2016. The appellant was charged with the offence of murder contrary to Section 232 (1) of the Criminal Code Cap 38 Vol. II, Laws of Akwa Ibom State.

I have the opportunity of reading the Judgment just delivered by my learned brother Sanusi, JSC. I agree with his view and conclusion that the appeal is devoid of merit and should be dismissed.
I too, dismiss the appeal.<br< p=””

</br<

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Amiru Sanusi in the judgment just delivered by him and to register the support, I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Calabar Division or Lower Court or Court below, Coram: Onyekachi A. Otisi, Paul Obi Elechi and Joseph O. K. Kolawole JJCA in which the Court below dismissed and affirmed the judgment of the trial High Court, Uyo Division Per Imeh E. Umanah which trial Court on 30th June 2011 convicted and sentenced the appellant to death by handing.

On the 6th day of December 2018 date of hearing, learned counsel for the appellant, C. A. Wogu Esq. adopted the brief of argument of the appellant filed on the 30th day of November, 2016 and in which was distilled a sole issue for determination, viz:-
Whether the Court of Appeal was right in affirming the conviction of the appellant for murder having regard to the evidence before the Court.

The Attorney General of Akwa Ibom State, Uwemedimo Nwoko and counsel for the respondent adopted

the brief of argument filed on 13/3/17 and deemed filed on 6/12/18 and crafted a single issue which in content is similar to that of the appellant and it is thus: –
Was the Court of Appeal (Lower Court) not right in affirming the conviction and sentence of the appellant for the murder of the deceased.

The Issue as crafted by the appellant would be used by me in the determination of the appeal as it is easy to utilise.

SINGLE ISSUE:
Whether the Court of Appeal was right in affirming the conviction of the appellant for murder having regard to the evidence before the Court.
It was submitted by learned counsel for the appellant that an assessment of the evidence adduced on behalf of the respondent reveals that there was no eye witness to the circumstances leading to the death of the deceased children and PW1 did not visit the scene of the alleged crime and so no credible evidence on which the death of the children could be founded.

Further was contended for appellant that the Court below overlooked the trial Court’s erroneous handling of the two contradictory statements purportedly made by the appellant

i.e. Exhibits A and B as it was not the place of the trial Court to reject Exhibit A while using Exhibit B. The following cases were cited, The Queen v Zakwakwa (1960) NSCC 8, Sam v State (1991) 2 NWLR (Pt.176) 699 at 707; Queen v Igwe (1960) NSCC 38, Jafiya Kopa v The State (1972) All NLR 151.

That the essential element of the offence of murder was not established by the prosecution as there is no linkage between the appellant and the alleged offence. He cited Damina v State (1995) 8 NWLR (Pt.415) 513 at 537; Section 323 (1) of the Criminal Code, Cap.38 Vol. II Laws of Akwa Ibom State; Alabi v State (1993) 7 NWLR (Pt.307) 511 at 527.

Learned counsel for the appellant stated on that the decisions of the two Courts below are based on speculations, connectives, suspicions and hunches and this is not allowed by law. He cited Aiguoreghian v State (2004) 3 NWLR (Pt.860) 367; Tijani v COP (1994) 3 NWLR (pt.335) 692 at 703; Onah v State (1985) 3 NWLR (Pt.12) 236 at 244.

He stated further that the mere fact that appellant had told lies is not proof of his guilt. He referred toHaruna & Anor. v Police (1967) NMLR 145; Okpere v State (1971) 1 All NLR 1; Omogodo v State (1981) NSACC 119 at 128.

Learned counsel for the respondent urged the Court not to disturb the concurrent findings of the two lower Courts as there is no reason to do so. He cited Egharevba v State (2016) Vol. LRCN 187 at 208; Akinlolu v The State (2016) Vol. 259 LRCN 1; Ikpo v The State (2016) Vol.260 LRCN 77 at 110.

He stated that it was the appellant who rescinded the earlier statement he made, Exhibit A and so the second one Exhibit B was properly admitted and used by the Court since it was voluntarily made by the appellant and admitted in evidence without objection. he cited Ikpo v State (supra); Okanlawon v The State (2013) Vol. 248 LRCN 1; Nwachukwu v The State (2007) 17 NWLR (Pt.1062) 31; Akinrinlola v The State (2016) Vol. 259 LRCN 1 at 20; Isa v Kano State (2016) Vol. 260 LRCN 118 at 142; Egharevba v The State (2016) Vol.258 LRCN 187 at 213; Onyenye v The State (2012) Vol.212 LRCN 107.

That appellant intended the consequences of throwing the children into the river and so that essential element of the offence is made out. He referred to Njoku v The State (2013) 2 NWLR (Pt. 1339) 548 at

568 etc. While the appellant took the stand that the respondent failed to prove the charge of murder against the appellant beyond reasonable doubt for which there is needed an interference by this Court of the concurrent findings of the two Courts below, the respondent’s standpoint is that the appeal lacks merit and there was a surfeit of evidence including the admission of the appellant upon which the findings of the two courts were founded and a conviction secured.

It is now beyond per adventure and trite in law that in a charge of murder such as the one under consideration, the prosecution is required to prove the essential elements of the offence beyond reasonable doubt which are thus:-
a) That the death of a human being has taken place or that the deceased had died;
b) That the death of the deceased was caused by the accused person;
c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
In establishing those basic ingredients above stated, the methods or any of which or all the methods may be

deployed in proof thereof and these are confessional statement of the accused person, circumstantial evidence and evidence of an eye witness. See Oketaolegun v The State (2015) Vol. 247 LRCN 1 at 41; Akinlolu v The State (2016) Vol.251 LRCN 1 at 40; Njoku v The State (2013) 2 NWLR (Pt.1339) 548 at 577; Okanlawon v The State (2015) Vol. 248 LRCN 1 at 45; Alufohai v The State (2015) 3 NWLR (Pt.1445) 172.

Again, to be said is that it is no longer a matter for debate in respect of the credibility of the evidence for the purpose of securing a conviction of an accused person which depends not on the number of witnesses that testify on the point but where only one witness is credible to such an extent that it is accepted and believed by the trial Court would be sufficient to justify a conviction. In other words what is important is not the number of witnesses but the quality of evidence proffered even if from only one witness, cogent and compelling that would suffice. See Oketaolegun v The State (supra), Nwaeze v State (1996) 2 NWLR (Pt.428) 1.

In respect to the number one of the essential elements in a charge of murder which is that the deceased had died.

In this both the prosecution through the evidence of PW1 and the defence with the testimony of the appellant himself confirmed the death of the deceased children. In fact from the record, the appellant as DW1 stated as follows:-
“I know Philp Imoh Akpan. I know them as my children, They are all dead”.
Under cross-examination the appellant had responded that they died in 1991.
Nothing was presented in contradiction to those facts which remained uncontroverted and so the findings of the two Courts below rendering futile any attempt to disturb the concurrent findings in that regard. See Egharevba v The State (2016) Vol. LRCN 187 at 205; Akinlolu v The State (supra) Ikpo v The State (2016) Vol. 260 LRCN 77 at 110.

On the second element of whether the death was caused by the act of the accused/appellant. Two extra judicial statements of the appellant were tendered and admitted without objection as Exhibits A and B. In Exhibit A appellant had put forward that he had sold the children to an Alhaji at Udi Street at N100,000.00 each and later resiling from that statement he explained that he made the statement out of fear that the police would kill him.

He stated later in Exhibit B emphatically in admission that he had thrown the children into the river and they would never be seen as the water must have carried them away.

The appellant had viewed the trial Court’s use of Exhibit B and the jettisoning of Exhibit A as a picking and choosing of which evidence in a contradictory scenario to use. The position asserted by the appellant’s learned counsel is not as cut and dried as he would want to be accepted as the appellant himself had cleared what would have been an inconsistent situation, one statement to the other by explaining why the earlier information of selling the children to the Alhaji as against the latter of throwing them into the river. What the appellant in effect had done was to urge for a rejection of Exhibit A and for the Court to take Exhibit B as his positive, direct and unequivocal confession representing what really transpired. Of note is that the Exhibit B was admitted in the presence of learned counsel for the appellant without objection and the voluntariness of the statement not in doubt. In reiteration, once a confessional statement is in such good stead having been tendered and

admitted without objection the Court can rely on it and go further to utilise solo, placing a conviction on it without the need for corroboration from an independent price of evidence and this not withstanding a retraction of the statement by the accused/appellant.
Stated differently, once the Court is satisfied with the truth of the confession as in the case at hand the Court can safely convict on it without corroborative evidence as a confession being the best evidence as it is an admission against self by the accused.
See Isa v Kano State (2016) Vol.260 LRCN 118 at 142; Egharevba v The State (2016) vol. 258 LRCN 187 at 213; Onyenye v The State (2012) vol. 212 LRCN 107.

The effect of the foregoing is that the second ingredient of the offence has been established, that is that the death was caused by the act of the appellant.

On the third element which is whether the accused/appellant intending to cause death or grievous bodily harm to the deceased. The situation in this regard is not farfetched in that a person throwing two children who are tender aged at three years into the river, the clear intendment is the death

and nothing less for the victims. Nothing else can be factored as the possible consequence of the act of the appellant casting his two children into the river which flows into the being sea than the death of the said two children of tender age. Even from his admission in his confessional statement can be deduced that death by drowning was the expected outcome of his act as he stated that it would be a waste of time for the police to seek to see or find the children because of the passage of time and water must have carried them away. The third element is in place and with it the completion of the establishment beyond reasonable doubt of the three essential elements of the offence of murder.

The appellant’s counsel had raised the point of the objection to the admissibility of the statement not having been raised late in the day at the defence stage, in this I would go along with learned counsel for the respondent that the appellant left the matter too late in the day, This is already an over flogged and now well rested issue that the voluntariness and the objection thereto on an extra judicial statement must come at the time of the tendering of the statement as thereafter

becomes too late for the objection on voluntariness to be addressed and if the concern now brought up so late is a resiling of the statement i.e. that the appellant had not made the statement, the admissibility is not affected rather what would be in consideration is the weight to be attached to the statement which would be admitted. See Oseni v The State (2012) Vol.208 LRCN 151 at 183 and 184 A. The Court in considering the principle on admissibility of extra-judicial statement or confession of an accused person held inter alias
“Another principle of the criminal law which has been consistently repeated in our law report is: at what time
does an accused person object to the admissibility of a statement credited to him as a confession This Court in its several decisions answered the question in the following words: the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statement were tendered (sic) without any objection from the defence. None of the prosecution witnesses were cross-examined as to their involuntariness.

It was until the prosecution had closed its case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defence case as an afterthought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject”. Also my lords, in the case of Egharevba v The State (supra) at page 213 AF, this Court reiterated the above principle when it held inter alia as follows: “Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the appellant had retracted the making thereof”.
At the defence stage where the circumstances surrounding the making of the statement of the appellant is being raised is too late and would not affect the admissibility of the confessional statement Exhibit B. See Igri v State (2012) 6-7 NJSC (Pt. lll) page 107 at 113-114; Ayinde v The State (1972) 3 SC 153 at 158-159, Nwokoronkwo v The State (1972) 1 SC 135; Archibong v The State (2006) 5

SC (Pt.lll) 1; Princewill v State (1994) 6 NWLR (Pt.353) 703.

The conclusion as I see the situation is that the concurrent findings of the two Courts below cannot be faulted in any way by this Court and nothing on which this Court can effect a disturbance or interference with those findings and the only option is to leave them as they are and affirm the decision.

From the foregoing and the better reasoning in the lead judgment I see no merit in this appeal and I dismiss it as I abide by the consequential orders as made.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother AMIRU SANUSI JSC just delivered, I entirely agree with the reasoning and conclusion therein that the appeal is completely devoid of merit.

This appeal is against the concurrent findings of the two Courts below that found the appellant guilty for murder contrary to Section 323 (1) of the Criminal Code Cap 38 Vol. 11, Laws of Akwa-lbom State.

The appellant himself had volunteered his statement in exhibits A and B wherein he owns up to the killing his two children by drowning them in the river at Oron.

The law does not prohibit convicting the appellant on exhibits A and B, his voluntary confessional statement the two Courts found to be direct, positive and unequivocal. Indeed the principle is that such confessional statements voluntarily established to have been so made constitute the best evidence against the appellant to be relied upon by the two Courts. See TIRIMISIYU ADEBAYO V. THE STATE (2014) LPELR 22988 (SC) and TAJUDEEN FABIYI V. STATE (2015) LPELR-24834 (SC).

I am unable to agree with learned appellant’s counsel that notwithstanding the direct and unequivocal confessional statements of the appellant further evidence outside the statements is necessary to sustain appellant’s conviction.

For the foregoing and the fuller reasons contained in the lead judgment, I also dismiss the unmeritorious appeal and abide by the consequential orders made in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, AMIRU SANUSI, JSC just delivered. I agree with the reasoning and conclusion that this appeal in without merit and should be dismissed.

This is a case in which there was overwhelming evidence pointing to the guilt of the appellant. There was uncontradicted evidence before the trial Court that the three year old deceased twins were in the sole custody of their father, the appellant. He made a confessional statement, Exhibit B confessing that he threw the children into the river at Oron. He stated inter alia in Exhibit B at page 16 of the record:
“I threw my twins into a River leading to the big sea at Uyaron in Oron Local Government Area. This happen in a year 2005 but I cannot remember the real month. It was because of my poor condition that made me to throw them in the water, as I do not have money to feed them in addition, my parent died and left me when I was only 10 years old and right from then, I have no supporter. While I stated in my 1st and 2nd statement that I sold my children to one Alhaji, was due to the way and manner the Police treated me, I thought they were going to kill me that was why I changed but initially, I told them that I actually threw them into a River. The Police cannot be able to see or find them again because the time is far and the water must have carried them away”

The law is that a confessional statement is relevant and admissible in evidence if it is positive and direct and constitutes one or all the elements of the offence charged and if the Court is satisfied that it is was voluntarily made. See:Ikpo Vs The State (2016) 2-3 SC (Pt.111) 88; Nwaebonyi Vs The State (1994) 23/24 LRCN 163; Yesufu Vs The State (1976) 6 SC 163. Exhibit B was admitted in evidence without objection.
The confessional statement, Exhibit B, is a clear and unequivocal admission that the appellant murdered his twin children by throwing them in the river. It was sufficient to sustain the conviction.
Nevertheless, it was subjected to the six-way test enunciated in the case of R Vs Sykes (1913) 8 Cr. App. Rep. 233 and found to be true. A significant factor is that the appellant himself testified that the twins were dead and there was evidence before the Court that the children had not been seen since 1991.

As stated in the lead judgment, the doctrine of “last seen” also applies in this case. It was held by this Court in Haruna Vs A.G. Federation (2012) 9 NWLR Pt.1306) 419,

that the doctrine of “last seen” means that the law presumes that the person last seen with the deceased bears full responsibility for his death. It will apply where the circumstantial evidence is overwhelming and leads to no other conclusion than that the accused killed the deceased. It is also the law that in such circumstances, it is the duty of the appellant to give an explanation as to how the deceased met his death. Where no such explanation is forthcoming, the Court is entitled to draw the inference that the accused person killed the deceased. See also: Igabele Vs The State (2006) 6 NWLR (Pt. 975) 100; Onitilo Vs The State (2017) 6-7 SC (Pt. III) 1. The appellant confessed that he threw the children into the river and also admitted in Exhibit B that he lied when he earlier told the Police he sold them to one Alhaji.

In the instant case there are concurrent findings of fact by the two lower Courts, which will not be disturbed unless they are shown to be perverse on the ground that the findings are not supported by the evidence on record or that there has been an error of law or procedure that has resulted in a miscarriage of justice. See:Omotola Vs The State (2009) 7

NWLR (Pt.1139) 148; Iyaro Vs The State (1988) 1 NWLR (Pt. 69) 256; Onitilo Vs The State (supra).
The appellant has not shown that any of these special circumstances exist to warrant interference by this Court. I therefore join my learned brother in dismissing this appeal for lack of merit. The judgment of the lower Court is affirmed.
Appeal dismissed.

Appearances:

C.A. Wogu, Esq.For Appellant(s)

Uwemedimo Nwoko, Esq. (AG Akwa-Ibom State) with him, Joseph Umoren (DPP, Akwa-Ibom State) Godwin Udom (PSC) and Maria Akpan (SSC)For Respondent(s)

Appearances

C.A. Wogu, Esq.For Appellant

AND

Uwemedimo Nwoko, Esq. (AG Akwa-Ibom State) with him, Joseph Umoren (DPP, Akwa-Ibom State) Godwin Udom (PSC) and Maria Akpan (SSC)For Respondent

RATIO DECIDENDI

APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts (…read in con)

CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: Ingredients of the offence of murder; Ways of proving the offence of murder (…read in con)

CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person (…read in con)

EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; ways of proving the commission of a crime/guilt of an accused person (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person (…read in con)

EVIDENCE – DOCTRINE OF LAST SEEN: Application of the doctrine of last seen; and duty on accused to give an explanation as to the death of a deceased where he is the last person seen with same (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: When is the proper time to raise an objection to the admissibility of a confessional statement (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person (…read in con)

EVIDENCE – DOCTRINE OF LAST SEEN: Duty on accused to give an explanation as to the death of a deceased where he is the last person seen with same; effect where the accused failed therein (…read in con)

EVIDENCE – EVIDENCE OF A SINGLE WITNESS: Whether a court can convict on the evidence of a single witness (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same (…read in con)

EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person (…read in con)