ETUK-UDO v. STATE (2020)

ETUK-UDO v. STATE

(2020)LCN/13942(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, January 07, 2020

CA/C/07C/2018

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

INIOBONG MATTHEW ETUK-UDO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

MEANS OF PROVING COMMISSION OF CRIME

The law gives the prosecution three avenues/means to prove commission of crimes. They are through: a confessional state or circumstantial evidence; or evidence of eye witnesses, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497. PER OGBUINYA, J.C.A.

WHETHER OR NOT A RELEVANT CONFESSION IS ADMISSIBLE AGAINST AN ACCUSED PERSON WHO MADE IT

Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to solely base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Awuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) 16 NWLR (Pt. 1591) 304; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254. PER OGBUINYA, J.C.A.

THE IMPORTANCE OF A CONFESSION IN CRIMINAL TRIALS

Indeed, the kingly position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72.

By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statement, exhibit 2, drowns his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to the offences of murder and arson preferred against him. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A.(Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Akwa Ibom State, holden at Abak (hereinafter abridged as “the lower Court”), coram judice: Ezekiel O. Enang, J., in Charge No. HA/8C/2012, delivered on 10th July, 2017. Before the lower Court, the appellant and the respondent were the accused and the complainant respectively.

The facts of the case, which gave birth to the appeal, are amenable to brevity and simplicity. On or about 6th June, 2009, at about 10pm, the appellant, with two other persons at large, was alleged to have unlawfully killed Monday Matthew and Owoidoho Monday Matthew by pouring petrol on them and setting them ablaze. On the same day, they were also, alleged to have burnt down the Holy African Church building and Q-Link motorcycle, the latter being the property of Elder Ime Matthew. The police duly carried out investigations into the allegations. Thereafter, the appellant was arraigned before the lower Court for the offences of murder and arson contrary to the provisions of Sections 323 and 464 of the Criminal Code Cap. 38, vol.2,Laws of Akwa Ibom State, 2000

respectively. The appellant pleaded not guilty to the 2-count information.

Following the plea of not guilty, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded one witness, PW1, and tendered eight exhibits. In defence of the case, the appellant testified in person, as DW1, and called no other witness. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court. In a considered judgment, delivered on 10th July, 2017, found at pages 140-154 of the record, the lower Court convicted the appellant on the two counts and sentenced him to death and life imprisonment respectively.

The appellant was dissatisfied with the decision. Hence, he, on 13th July, 2017, lodged a 3-ground notice of appeal, copied at pages 156-158 of the record. Subsequently, the appellant, with the leave of this Court, filed a further amended notice of appeal, on 22nd November, 2018, which hosts three grounds, and prayed the Court for: “An order setting aside the conviction and sentencing of the Appellant to death by hanging and discharging the appellant for

lack of credible evidence.” Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of criminal appeals in this Court. The appeal was heard on 17th October, 2019.

During its hearing, learned counsel for the appellant, Julius Idiege, Esq, adopted the appellant’s amended brief of argument, filed on 22nd November, 2018 but deemed properly filed on 24th January, 2019, and appellant’s reply brief, filed on 11th April, 2019 but deemed properly filed on 17th October, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Joseph Akpan, Esq., adopted the respondent’s brief of argument, filed on 22nd March, 2019 but deemed properly filed on 17th October, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s amended brief of argument, learned counsel distilled two issues for determination to wit:
1. Whether the learned trial Judge was right when he admitted and placed reliance on Exhibits 3, 4, 5, 6 and 7 to convict and sentence

the appellant to death.
2. Whether having regards to the evidence adduced by the parties, the learned trial Judge was right when he held inter alia that the Prosecution had proved its case against the Appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant to death by hanging.

In the respondent’s brief of argument, learned counsel crafted a single issue for determination viz:
Whether from the totality of the evidence adduced at trial, the prosecution had proved its case against the Appellant beyond reasonable doubt?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issue can be conveniently, subsumed under the appellant’s. In view of this sameness, the appeal will be decided on the issues formulated by the appellant: the undoubted owner of the appeal.

Arguments on the issues
Issue one
Learned counsel for the appellant submitted that the lower Court erred in law when it attached probative value to exhibits 3-7. He drew the distinction between admissibility of document and weight to be attached to it as explained in

Yusuf v. Mashi (2017) All FWLR (Pt. 912) 664; Buhari v. INEC (2009) All FWLR (Pt. 459) 419; Nyesom v. Peterside (2016) LPELR – 40036 (SC). He stated that PW1, who tendered exhibits 3-7, was not their maker which made them documentary hearsay. He relied on Bajoden v. Iromwanimu (1995) 7 NWLR (Pt. 410) 655; Osigwelem v. INEC (2011) 9 NWLR (Pt. 1253) 425; Onimole v. Adetolabi (2008) All FWLR (Pt. 438) 324. He explained the meaning of hearsay as noted in Ojiako v. State (1991) 2 NWLR (Pt. 175) 578; Ifegbu v. UBN Plc. (2011) All FWLR (Pt. 602) 1676. He persisted that hearsay evidence was not admissible in law. He cited Okereocha v. Ministry of Commerce & Tourism (2001) 1 NWLR (Pt. 693) 126; Omidiran v. Owalabi (1994) 6 NWLR (Pt. 350) 361; Achora v. A-G, Bendel State (1990) 7 NWLR (Pt. 160) 92. He claimed that the finding of the lower Court, which attached weight to those exhibits, was perverse and should be re-assessed. He referred to Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt. 822) 308; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; A. G. Leventis (Nig.) Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) 416.

On behalf of the respondent, learned counsel contended,

per contra, that a document could be tendered through one who did not make it. He cited Section 83 of the Evidence Act, 2011. He observed that PW1 laid the proper foundation before tendering exhibits 3 and 4 which were admissible under Section 200 of the Criminal Procedure Code of Akwa Ibom State and Section 55 of the Evidence Act, 2011. He asserted that exhibits 5-7 were procured by PW1 during investigation and could be tendered by him. He described the evidence of PW1, the Investigating, Police Officer (IPO), as direct evidence of what he did and not hearsay. He cited Ajiboye v. State (1994) 8 NWLR (Pt. 364) 587; Obot v. State (2014) LPELR – 23130) (CA).

Issue two
Learned counsel for the appellant submitted that the burden was on the respondent to prove the offence beyond reasonable doubt. He cited Section 135 of the Evidence Act 2011; State v. Ajie (2000) 3 NSCQR 53/(2000) S.C (Pt.1) 24; Omonga v. State (2000) All FWLR (Pt. 306) 930; Ameh v. State (1978) 67 SC 27. He posited that the lower Court wrongly relied solely on the confessional statement to convict the appeal. He noted the import of extra-judicial statement as explained in

Nasiru v. State (1999) 2 NWLR (Pt. 589) 87; Adelumola v. State (1988) 1 NWLR (Pt. 73). He reasoned that the lower Court did not test the truthfulness of the confession with other pieces of evidence as required by law. He relied on Iko v. State (2001) LPELR – 1480 (SC). He asserted that there was no transparency in obtaining the confession. He referred to Owhoruke v. C.O.P (2015) 15 NWLR (Pt. 1483) 557. He attacked the evidence of PW1 to show that it was weak. He insisted that the decision was unreasonable. He cited Amaechi v. State (2016) LPELR – 40977 (CA).

For the respondent, learned counsel argued that the confession was part of the case of the prosecution. He relied on Adeyemi v. State (2012) 9 ACLER 203. He noted that the lower Court duly conducted trial-within-trial before the admission of the confessional statement. He citedBright v. State (2012) 8 NWLR (Pt. 1302) 295; Ismail v. State (2011) 17 NWLR (Pt. 127) (sic) 601. He stated that the confession was taken to superior police officer which showed transparency in obtaining it. He referred to Oladipupo v. State (2013) 1 NWLR (Pt. 1334) 100; Egboghonome v. State (1993) 7 NWLR (Pt. 366) 383. He

claimed that retracted confession would still be considered by the Court. He cited Ekpo v. State (2008) LPELR – 4370 (CA); Buhari v. State (2015) 5 NWLR (Pt. 1452) 343. He explained the import of evaluation of evidence. He referred to Ogiemwonyi v. State (2016) LPELR – 40292 (CA). He postulated that a voluntary, direct, positive, and unequivocal confession could be used to convict an accused. He citedGaladima v. State (2012) 18 NWLR (Pt. 1333). He maintained that the confession was voluntary to ground conviction of the appellant.

Resolution of the issues
In the interest of orderliness, I will attend to the issues seriatim. To this end, I will kick off with the treatment of issue one. The hub of the issue is simple. It chastises the lower Court’s admission and reliance on exhibits 3-7 in its decision.

Now, exhibits 3 and 4 were the reports of medical practitioner on the death of Owoidoho Monday Matthew and Monday Matthew respectively. They were tendered through PW1 who was not their maker. According to the prescription ofSection 55(1) of the Evidence Act, 2011:
Either party to the proceedings in any criminal case may

produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government pathologist or entomologist or the Accountant-General, or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State, or any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any account specified by the Accountant-General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.
This provision, which is in pari materia with Section 42(1) of the defunct Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004, is comprehension-friendly. Its import is that a production of a medical certificate (report) effectively dispenses with the attendance of its author in Court. The case-law has given its imprimatur to the provision and that such a certificate could be tendered through an investigating Police Officer (IPO), see,

Ehot v. State (1993) 5 SCNJ 65; Edoho v. State (2010) 14 NWLR (Pt. 1214) 651; Adesina v. The People of Lagos State (2018) 8 NWLR (Pt. 1673) 125. It follows that the respondent’s failure or neglect to call the medical practitioner, who conducted the autopsy examination on the corpse of the deceased and authored exhibits 3 and 4, as a witness did not vitiate its admission through PW1, the IPO, and validity. The appellant’s argument on the point, which appears dazzling, is totally spent and misplaced in the wide domain of the adjectival law. I am therefore, derobed of any legal justification to ostracise exhibits 3 and 4 from this appeal in order not to offend the law.

In any event, the heavy weather which the appellant made about the admission of exhibits 3 and 4 is unwarranted in law. Medical evidence, which encompasses medical report, is no longer sine qua non for proof of homicide cases in criminal jurisprudence. It is settled law, that medical evidence is rendered otiose where: death is instantaneous on attack, the cause of death is known or could be inferred from the circumstances of evidence adduced or there is abundant evidence of the

manner of death, see Ogba v. State (1992) 2 SCNJ/(1992) 2 NWLR (Pt. 222) 164; Ubani v. State (2003) 18 NWLR (Pt. 851) 224; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Ben v. State (2006) 16 NWLR (Pt. 1006) 582; Ogbu v. State (2007) 5 NWLR (Pt. 1028) 635; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Afosi v. State (2013) 13 NWLR (Pt. 1371) 329; Maigari v. State (2013) 13 NWLR (Pt. 1384) 425; Galadima v. State (2017) 12 NWLR (Pt. 1580) 339; Muhammad v. State (2017) 14 NWLR (Pt. 1583) 386; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. It will unveil anon, on the footing of this cardinal principle of law, that exhibits 3 and 4 were superfluous/supportive evidence tendered ex abundanti cautela. There were other impregnable evidence which fixed the appellant as one of the participes criminis in the killing of the deceased. The same result was achievable in the absence of exhibits 3 and 4. In the aggregate, the foregoing, with due reverence, exposes the poverty/emptiness of the appellant’s seemingly attractive argument on the point. It cannot fly.

Exhibits 5, 6 and 7 were the photographs and negatives of the burnt Owoidoho Monday Matthew, Monday

Matthew and Q-Link motorcycle respectively. They were received in evidence via PW1. It is trite adjectival law, that the time to object to the admissibility of a document is at the point of tendering it otherwise the party will forfeit his right of objection to it on an appeal, see Alarape v. State (2001) 5 NWLR (Pt. 705) 79/(2001) FWLR (Pt. 41) 1872; Oseni v. State (2012) 5 NWLR (Pt. 1293) 351; Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386; John v. State (2017) 16 NWLR (Pt. 1591) 304; Emeka v. State (2019) 8 NWLR (Pt. 1673) 159.
I have visited the record, the touchstone of the appeal, especially at the residence of the testimony of PW1 wrapped at page 121 thereof. The PW1’s viva voce testimony, which produced exhibits 5-7, is rebellious to ambiguity. The documents were tendered through PW1 without any scintilla of opposition from the appellant’s learned counsel. Put simply, the appellant did not register any objection to the admissibility of those documents. In the eyes of the law, his failure to greet their admission with any contest is that he had

sacrificed his right of objection even before this Court. It is too late in the day for the appellant to invent an objection to the admissibility of those documents in this Court. The doctrine of foreclosure/forfeiture punctures the appellant’s elegant argument on the point.

The second limb of the appellant’s grievance quarrels with the lower Court’s reliance on those documents, exhibits 3-7, in arriving at its decision. The lower Court’s 14-page judgment colonises pages 140-154 of the record: the bible of the appeal. I have given a clinical examination to it with the finery of a toothcomb. Interestingly, it is obedient to clarity. Incidentally, I am unable to find, even with the prying eagle-eye of a Court, where the lower Court relied on exhibits 3-7 in reaching its decision. It rather placed reliance solely on exhibit 2 – the appellant’s confessional statement. On this score, the charge of utilisation of exhibits 3-7 leveled against the decision by the appellant is unsustainable. It is not, in the least, guilty of the spurious allegation as the lower Court never fractured the law.

In the light of this legal anatomy,

the lower Court did not insult the law, in any manner, vis-à-vis exhibits 3-7. I therefore, dishonour the appellant’s counsel’s enticing invitation to crucify the lower Court’s admission of the exhibits 3-7 on the undeserved altar of inadmissibility for want of legal justification. In the end, I have no choice than to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The meat of the issue is obvious. It castigates the lower Court’s conviction of the appellant solely on his confessional statement, exhibit 2. The issue, though the heart of the appeal, is canalised within a narrow compass. The reason is not far-fetched. The lower Court found the appellant guilty of the heinous/foul crimes of murder and arson mainly/solely on the basis of his confessional statement.

Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497. The stubborn question, begging for an answer, is: did the respondent prove the ingredients of the offences in the light of the evidence before the lower Court?

Now, in the twilight of exhibit 2, which monopolises, pages 22-24 of the record, the spinal cord of the appeal, the appellant, unequivocally, stated:
On the Saturday night being 06/06/09 at about 10.30pm, myself, Nsika Matthew and Idongesit Matthew went to Ime Matthew’s church Holy African Apostolic Church and met Monday Matthew sleeping inside the church, we now throw acid all over his body including his son Uwedege Monday Matthew as a result of that two of those dead. Apart from acid we throw their body we didn’t beat them with stick nor matchet. After killing of them myself again went and burnt one Qlink motorcycle being parked inside the church and other valuable properties. We killed Monday Matthew and his son Uwedege Monday Matthew because he killed my mother.

Flowing from this excerpt, extracted from exhibit 2, the provision of

Section 28 of the Evidence Act, 2011 comes in handy. In this wise, I will pluck it out, from where it is ingrained in the Act, ipsissima verba, thus:
A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that the accused committed that crime.

Agugua v. State (2017) 10 NWLR (Pt. 1573) 254.

When that pre-trial statement was admitted as exhibit 2, even though the appellant was its owner, it deserted the defence and metamorphosed into the respondent’s case, seeEgboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456. It stems from the evidential migration, that its contents became part and parcel of the respondent’s case. In the exhibit, the appellant made an undiluted admission of his commission of the alleged offences in conjunction with his fugitive friends.

By a confession, an accused surrenders himself to the law and becomes his own

accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statement, exhibit 2, drowns his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to the offences of murder and arson preferred against him.

The lower Court at page 153, lines 12-16 and 23 and 24, of the record, incisively, declared:
I hold that the confessional statement of the accused person is direct, unequivocal, positive and amounts to an admission of guilt of the offence of murder. Since it was made freely and voluntarily I find that the prosecution has proved beyond reasonable doubt that the accused person unlawfully killed Monday Matthew and Owoidoho Monday Matthew and I find him guilty of murder as charged and convict him…. This confession is direct, positive, unequivocal and amount to an admission of guilt of the offence of arson.

Having regard to this juridical survey, conducted in due consultation with the law, the lower Court’s findings, displayed above, were unassailable

and immaculate. They are in total fidelity to the tenet and spirit of the law. In effect, all the strictures, which the learned appellant’s counsel rained against them, pale into insignificance. It will smell of judicial sacrilege to tinker with findings that are not hostile to the law. As a result, I will not hesitate to resolve the issue two against the appellant and in favour of the respondent.

On the whole, having resolved the two issues against the appellant, the destiny of the appeal is certain. It is bereft of any grain of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 10th July, 2017.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, OBANDE FESTUS OGBUINYA, J.C.A. afforded me the opportunity of reading in draft the judgment just delivered.

I have nothing more to add but to also adopt the final orders made therein as mine. I also dismiss the appeal for lacking in merit.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my learned brother OBANDE F. OGBUINYA, JCA.

I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is devoid of any merit and ought to be dismissed.
I adopt the said judgment as mine and join my brother in dismissing the appeal.

Appearances:

Julius Idiege, Esq. For Appellant(s)

Joseph Akpan, Esq., Assistant Director, Ministry of Justice, Akwa Ibom State, For Respondent(s)