ETIM v. STATE (2020)

ETIM v. STATE

(2020)LCN/14133(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, April 27, 2020

CA/C/86C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

GODWIN ETIM O. APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER THE DISCHARGE OF AN ACCUSED CAN LEAD TO THE DISCHARGE OF ANOTHER CHARGED WITH THE SAME OFFENCE

The position of the law is that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably interwoven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convincing evidence that must automatically affect all the others in the light of the fact that the evidence against all the accused is tied together, like Siamese twins at the umbilical cord with their mother.
See: EBRI V. THE STATE (2004) LPELR – 996 (SC); OKORO V. THE STATE (2012) LPELR -7846 (SC); KASA V. STATE (1994) LPELR – 1671 (SC); IKEMSON V. STATE (1989) 3 NWLR (PT.110) 455.
In UMANI V. THE STATE (1988) 1 NWLR (PT. 70) 274, the trial Judge discharged the 1st, 2nd, 5th, 6th and 7th accused persons on the charge of murder on the ground that the defence of alibi succeeded. He however convicted the Appellant for murder because he rejected his defence of alibi. Although the Court of Appeal dismissed the appeal, the Supreme Court allowed the appeal by a majority. The Court held that the evidence on which the learned trial Judge has based his conclusion on the guilt of the Appellant is the testimony of PW1, PW2 and PW3, testimony which in discharging the five accused persons he has at the very least cast so much doubt. In that wise it is extremely hard to remove any doubt as to the guilt of the Appellant.
In KALU V. THE STATE (1988) 4 NWLR (PT. 90) 503, the Appellant and another person were arraigned before the High Court of Imo State. The evidence led by the prosecution was that the Appellant and the second accused person, in company of other armed persons, broke into the dormitory of the Asaga Boys Secondary School Ohafia and murdered the deceased. During the trial, eight witnesses gave evidence for the prosecution, the most important of which were PW6 and PW7. The witnesses contradicted themselves. The learned trial Judge held that the case against the 2nd accused was not established beyond reasonable doubt. He was therefore discharged and acquitted. Although the appeal of the Appellant to the Court of Appeal like in the case of UMANI V. THE STATE (supra) was dismissed; the Supreme Court allowed the appeal. The Court held that where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial Judge in favour of one of the accused persons, the same doubt should also be resolved in favour of the others. Consequently if one is discharged and acquitted, the other should also be discharged and acquitted. Delivering the leading judgment of the Court, Kawu, J.S.C., said at pages 508 and 510:
“Now, one of the main complaints in this appeal is that the reasons given by the learned trial Judge, as set out above, for doubting the testimony of PW6 in regard to the case against the 2nd accused, apply equally to the case against the appellant and that in the circumstances, the appellant should also have been given the benefit of doubt. I think there is substance in this complaint… It was for the reasons stated above that I reached the conclusion on the 28th day of June, 1988 that the conviction of the appellant cannot stand and accordingly allowed the appeal and set aside the conviction as already stated.”
In ADELE V. THE STATE (supra), Onu, J.S.C., citing UMANI V. THE STATE (supra), said at page 293:
“Indeed, it is now settled that when a trial Judge has totally discredited and rejected the evidence of a witness and regarded it as lacking in probative value and on the basis of that refused to use it as a basis of convicting another accused person, he should decline to use it as basis for convicting another accused person especially when, as in the instant case, the evidence in respect of appellant is inextricably interwoven around the 7th accused who was discharged and acquitted.”
For the purpose of exculpating an Appellant from criminal responsibility, conviction and sentence, there must be no additional evidence incriminating the Appellant. Putting it in another language, the convicting evidence cannot be untied or separated in respect of the Appellant vis-a-vis the co-accused persons. In other words, the evidence joined together like Siamese twins, so much so that all accused persons must either fall or stand together.
Howbeit, I must sound that it is not the law that once an accused person is discharged and acquitted, the co-accused must, as a matter of course or routine be discharged and acquitted like the night following the day and vice versa. It is not so. There is no such automatic position. It depends entirely on the facts of the case before the Court. A Court will only be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused persons is the same and nothing but the same; and not merely in some nexus or proximity. Putting it differently, where the Court finds that no case has been made against an accused person, he can be discharged and acquitted, as in this case. The Court can convict the co-accused on the basis of the exculpatory evidence against him, if any. See: IDIOK V. STATE (2008) LPELR – 1423 (SC). PER ONYEMENAM, J.C.A

WHAT AMOUNTS TO A CONFESSIONAL STATEMENT

By the provision of Section 28 of the Evidence Act, an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime amounts to a confession. See: SIMON V. THE STATE (2017) LPELR- 41988 (SC); OSENI V. THE STATE (2012) LPELR- 7833 (SC); PATRICK IKEMSON & ORS. V. THE STATE (1989) 3 NWLR (PT.110) 455 AT 476.
Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See: PATRICK IKEMSON & 2 ORS V. THE STATE (1989) 3 NWLR (PT.110) 455 AT 476 PARA D; JOSEPH IDOWU V. THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (PT.680), AT 48, NKWUDA EDAMINE V. THE STATE (1996) 3 NWLR (PT.438) 530 AT 537 PARA -E; SAMUEL THEOPHILUS V. THE STATE (1996) 1 NWLR (PT.423) PAGE 139 AT 155 PARA A-B; AWOPEJO V. THE STATE (2002) 3 MJSC 141 AT 151. SEE ALSO: PETER ILIYA AZABADA V. THE STATE (2014) ALL FWLR (PT.751) 1620, PARA B; where the Apex Court, per the learned Onnoghen, JSC (as he then was) declared that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved…Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”
See: DANJUMA V. STATE (2019) LPELR – 47037 (SC). PER ONYEMENAM, J.C.A.

DUTY OF A COURT TO EVALUATE ALL EVIDENCE BEFORE IT

It is trite law that the Court must not be wary in giving the evidence of the accused the consideration it deserves no matter the level of the defence, whether it is full of figments of imagination, fanciful, filled with porous lies or doubtful. See: BOLANLE V. STATE (2005) 7 N.W.L.R. (PT. 925) 431. Evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial Court, which had the opportunity to see and hear the parties and assess the witnesses. The trial Court had the advantage of seeing the witnesses, watching their demeanor and hearing them give evidence. This Court therefore will be cagey to intervene with or reverse findings of fact made by the Court of trial unless such findings are perverse. See: STATE V. AJIE (2000) 11 NWLR (PT.678) 434; IN-TIME CONNECTION LTD. V. ICHIE (2009) LPELR -8772 (CA) PP13 -144.
In criminal trials where the onus of proof is squarely on the Prosecution, it is the foremost duty of the trial Judge to evaluate the evidence of the Prosecution, where and if the Court finds that the Prosecution has proved its case, the Court will now consider the defence of the accused person as adduced and the relevant defence open to him to ascertain whether any reasonable doubt has been or could be raised in the proof of the case of the Prosecution. Where any such doubt is raised the trial Court will put the doubt in the legal account of the accused person and go ahead to discharge and acquit him. PER ONYEMENAM, J.C.A.

WHETHER OR NOT THE COURT ALLOWS CONTRADICTIONS IN EVIDENCE OF WITNESS

In ADONIKE V. STATE (2015) LPELR – 24281 (SC) PP 58- 59 PARA E-A the Apex Court held that:
“It is settled law that material contradiction must go to a material point that is to the root of the charge against the accused person. Therefore, where there are differences in the narration of events by prosecution witnesses, especially as to recounting and recollecting the dates of events, which are mere discrepancies that would not avail the accused person, because some of such discrepancies are expected as being natural.”
Also in IKPA V. STATE (2017) LPLER -42590 (SC) AUGIE JSC held thus:
“The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is pretty well settled. It is not every minor contradiction that matters; for a trial judge to disbelieve a witness, the contradiction in his evidence must be on a material point -KALU V. STATE (1988) 3 NSCC 1. Thus, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the prosecution’s case… a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts; not necessarily when there are minor discrepancies in the details between them… Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective and slant. This does not necessarily mean that the events they are narrating did not take place. It only means most of the time that the event took place… that is why the law says that contradictions, which are not material or substantial, will go to no issue”
It is therefore settled beyond peradventure that the testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses. See: ENAHORO V. QUEEN (1965) NMLR 265; OGUN V. AKINYELU [2004] 18 NWLR (PT. 905) 362, 392; EMIATOR V. STATE [1975] 9-10 SC 112; IKEMSON V. STATE [1989] 3 NWLR (PT 110) 455, 479; AFOLALU V. STATE [2009] 3 NWLR (PT. 1127) 160.
This is so because it would be prodigious to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that ever happens, such accounts should be treated with suspicion, as it is likely that the witnesses were tutored and compared notes. In effect, minor variations in testimonies seem to point to the reality and truth of accounts of the witnesses. See: OKOIZIEBU V. STATE [2003] NWLR (PT. 831) 327;NASARU V. STATE [1999] 6- 9 SC 153;IKEMSON V. STATE (supra). In any event, Courts have even taken the stance that witnesses may not always speak of the same facts or events with equal and regimented accuracy. See: OGUN V. AKINYELU [2004] 18 NWLR (PT. 905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, they must raise doubts as to the guilt of the accused person. See: UKPONG V. STATE (2019) LPELR – 46427 (SC); NWOSISI V. STATE [1976] 6 SC 109; EJIGBADERO V. STATE [1978] 9- 10 SC 81; KALU V. STATE [1988] 4 NWLR (PT. 90) 503; IGBI V. STATE [2000] FWLR (PT 3) 358; [2000] 3 NWLR (PT. 648) 169. PER ONYEMENAM, J.C.A.

DIFFERENCE PROOF BEYOND REASONABLE DOUBT AND PROOF BEYOND A SHADOW OF DOUBT

Exactness and absolute certainty is beyond mere mortal in all spheres of life including in criminal justice system. Proof beyond reasonable doubt therefore does not call for that which is impossible for humans as it is only humans and not immortals that are called upon to give evidence in proof of any given criminal charge. Accordingly, the standard required for proof beyond reasonable doubt is that with such a high degree of probability that no reasonable doubt can be created in the mind of the Court and not proof without an infinitesimal amount of doubt. The Apex Court on this note in BILLE V. STATE (2016) LPELR -40832 (SC) PP 29 PARA F-B, held Per NGWUTA JSC that:
“There is a world of difference between proof beyond reasonable doubt and proof beyond a shadow of doubt. The former is a requirement of law. See Section 135 (1) of the Evidence Act, 2011. See also OBUE V. THE STATE (1976) 2 SC. 141. The latter would require the prosecution to prove all essential ingredients/elements in a case to a mathematical certainty, an impossible task given the variables in human affairs. It would mean that no contested criminal case would ever be proved.”See also: ALUFOHAI V. STATE (2014) LPELR- 24215 (SC). PER ONYEMENAM, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARSON

On proof of the offence of arson, the identifiable ingredients of arson are:
(a) That a dwelling house was actually set ablaze;
(b) The accused person was responsible in doing so and did so intentionally.
See: OKHIRIA V. STATE (2016) 15 N.W.L.R. (PT. 1535) 342. PER ONYEMENAM, J.C.A.

INGREDIENTS OF THE OFFENCE OF KIDNAPPING

On the offence of kidnapping, the essential ingredients of the offence of kidnapping as provided in Section 1(2) of the Akwa Ibom State Internal Security and Enforcement Law, 2009 are that:
i. There was a forceful or fraudulent taking away or detention of a person by another;
ii. Other persons entitled to have access were prevented from discovering the place where the person is held hostage;
iii. The detention of a person was with or without demand for ransom; and
iv. The accused person(s) was the kidnappers or one of the kidnappers. PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Oron Judicial Division delivered on 6th August, 2018 by B. F. Etuk, J., wherein the learned trial Judge convicted the Appellant and two others for the offences of arson and kidnapping and sentenced him to death by hanging. The Appellant was arraigned on 20th November, 2012 along with three others – Lawrence Okon Esin, Godwin Otu Ita and Bassey Ita Ekpenyong before the High Court of Akwa Ibom State, Oron Judicial Division, for the offences of arson and kidnapping, contrary to Section 464 (a) and Section 46 (a) and (b) of the Criminal Code of Akwa Ibom State and Section 1 of the Internal Security and Enforcement Law of Akwa Ibom State, 2009. The Appellant was the 3rd accused person at the trial Court.

The particulars of offence in respect of the first count charge was that Lawrence Okon Esin, Godwin Otu Ita, Godwin Etim Okon and Bassey Ita Ekpenyong and others now at large on the 29th day of July, 2011, at No. 10 Ekerendu Street, Oron, within Oron Judicial Division unlawfully set fire on four flats, property of one

Sarah Ekpenyong Bassey. The particulars of offence in respect of the second count charge was that, Lawrence Okon Esin, Godwin Otu Ita, Godwin Etim Okon and Bassey Ita Ekpenyong and others now at large on the 29th day of July, 2011, at No. 10 Ekerendu Street, Oron, within Oron Judicial Division kidnapped one Abang Ekpenyong Eta. At the trial, the prosecution called two witnesses- Mrs. Sarah Ekpenyong Bassey, the nominal complainant who testified as PW1.The Investigating Police Officer testified as PW2. The Prosecution equally tendered four Exhibits in proof of its case; the Exhibits were (i) Statement of 1st Accused person, Lawrence Okon Esin as Exhibit B; (ii) Statement of 2nd Accused person, Godwin Otu Ita as Exhibit C; (iii) Statement of the 3rd Accused/Appellant as Exhibit D; (iv) Statement of the 4th Accused, Bassey Ita Ekpenyong as Exhibit E.

The PW1 testified that she was in her house with her two sons, Ekpenyong Ekpenyong Eta and Abang Ekpenyong Eta, on 29th day of July 2011, when some indigenes of Eyo Abasi numbering about 70, including the Appellant, invaded her home with weapons demanding that she produced her children or they would kill her.

That when she inquired as to what their grievance was, they informed her that they were on a reprisal attack for the part she and her late husband played in the inter- communal conflict between Idua and Eyo Abasi communities. They alleged that it was my late husband, Barrister E. E. Bassey who wrote a petition against Eyo Abasi people. Still in her testimony, she said the accused persons and the others that came with them started destroying things in her compound wherein she occupied with her tenants and subsequently burnt down her house including the properties of her tenants. She stated that one of her sons, Abang Ekpenyong Eta, who had tried to escape into the bush during the incident, but was caught by the 3rd accused person, (the Appellant) herein and who inflicted him with machete wounds on his body while another of the attackers still at large fired into her said son’s head. She further stated that when she rushed to help her son, the attackers, including the Appellant herein, hit her with rod and rode off on a motorcycle with her son. That she has not seen her son since then. Following a distress call she made to the DPO of the police division, a

team of the Police and some soldiers arrived the scene and arrested the four accused persons while the rest escaped. She continued that the police and the soldiers called men of the Fire Service in Oron Local Government Area but by the time the Fire Service men arrived, fire had already engulfed the entire building. The PW2 testified that he was the IPO detailed to investigate the case of arson and abduction. He arrested the accused persons along with the Appellant at the scene of crime, and took statements from them under caution. Said statements were read over to the accused persons, the Appellant included and they signed as theirs while he countersigned as the recorder. Thereafter, the prosecution closed its case.

On the other hand, the Appellant and his co-accused testified for themselves and called no other witness. In his judgment delivered on 6th August, 2018, the learned trial Judge discharged Bassey Ita Ekpenyong, the 4th accused person on the ground that he had serious doubt if the said Bassey Ita Ekpenyong was present at the scene of crime.

However, the learned trial Judge convicted the Appellant and the other two accused persons –

Lawrence Okon Esin (the 1st accused person) and Godwin Otu Ita (the 2nd accused person) – and sentenced them to death by hanging on the ground that there was abundant evidence linking them with the commission of the two offences for which they were charged and tried before the trial Court.

Dissatisfied with the decision, the Appellant filed his Notice and Grounds of Appeal on 24th August, 2018. The said Notice of Appeal is found at pages 218 to 225 of the records.

The appeal was heard on 29th January, 2020. Mr. Julius Idiege referred to and adopted the Appellant’s brief filed on 26th March, 2019 but deemed by order of 8th April, 2019; and reply brief filed on 19th June, 2019, but consequentially deemed on 29th January, 2020, in urging the Court to allow the appeal. Mr. Akpan adopted and relied on the Respondent’s brief filed on 17th June, 2019 but deemed 29th January, 2020 in urging the Court to dismiss the appeal.

The Appellant’s counsel distilled four issues in the Appellant’s brief, to wit:
1. Whether the learned trial Judge was right to have convicted the appellant on the same set of evidence by the same

witnesses that he relied on to discharge the 4th accused person.
2. Whether the learned trial Judge was right when he held that the extra-judicial statement of the appellant to the police was confessional
3. Whether the learned trial Judge properly evaluated the evidence adduced by the parties before coming to the conclusion that the evidence of PW1 was credible and that it was not shaken under cross-examination.
4. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt as required by law to secure the conviction and sentencing of the appellant.

The Respondent’s counsel adopted the issues raised by the Appellant but summarized same into a lone issue, to wit:
“Whether from the evidence adduced at the trial, the prosecution proved the cases of Arson and Kidnapping against the Appellant beyond all reasonable doubt”.

I shall adopt the issues raised by the Appellants in determining this appeal. However, I will resolve the 3rd and 4th issues together as issue 3.

SUBMISSIONS ON ISSUE 1
“Whether the learned trial Judge was right to have convicted the appellant on the same set of

evidence by the same witnesses that he relied on to discharge the 4th accused person.”

Mr. Idiege submitted that the evidence of the two prosecution witnesses who testified against the 4th accused person that was discharged by the trial Court is interwoven with the evidence adduced against the Appellant. That since the offence for which the 4th accused person was arraigned, tried and discharged is the same offence for which the Appellant and his co-accused were arraigned and tried, that the Appellant also ought to be discharged and acquitted by the learned trial Judge. He argued that if the learned trial Judge found an exculpatory piece of evidence from the prosecution witnesses in favour of the 4th accused person, that same exculpatory piece of evidence ought to have also been extended to the Appellant. The learned counsel referred to: EBRI V. STATE (2004) 11 N.W.L.R. (PT. 885) 589; KALU V. STATE (1988) 4 N.W.L.R. (PT. 90) 503; ADELE V. STATE (1995) 2 N.W.L.R. (PT. 377) 269.

In his reaction, learned counsel for the Respondent submitted that the burden of proof beyond reasonable doubt is on the prosecution notwithstanding, that the law is

settled that an accused person can be convicted on the clear and unimpeachable evidence of a single witness unless it is an offence where corroboration is statutorily required. That ‘proof beyond reasonable doubt’ is not attained by the number of witnesses fielded by the prosecution but depends on the quality of the evidence tendered by the prosecution. He referred to: OKORO V. STATE (1998)14 NWLR (PT.584) 181; AKPA V. STATE (2008) 14 NWLR (PT. 1106) 72; ABOKOKUYANRO V. STATE (2012) 2 NWLR (PT.1285) 530.

Akpan, Esq. reproduced the evidence of PW1 and submitted that the PW1 successfully distinguished the role each of the accused person played on the day of the incident, including the Appellant’s attack on her son and his subsequent abduction which evidence was not contradicted under cross examination. He also submitted that where the evidence, as in the instant case, separates the role of each of the accused persons at the scene of crime, it cannot be said that the evidence is inextricably interwoven. He argued that the evidence of PW1 and PW2 point to the fact that each of the accused persons played a specific part in the execution of

their common intention, and as such are liable for the offences. He urged the Court to discountenance the authorities relied on by the Appellant as they do not apply in this case. He referred to: ALAO V. STATE (2015) LPELR- 24686 (SC); YARO V. STATE (2007) LPELR-3518 (SC) PP 14-15, PARA D-A.

Furthermore, learned counsel argued that the Respondent had proved the offence of arson and kidnapping beyond reasonable doubt against the Appellant through the evidence of PW1 and PW2 and supported by Exhibit D, the extra-judicial statement of the Appellant which was tendered and admitted without objection. He urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE 1
The position of the law is that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably interwoven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convincing evidence that must automatically affect all the others

in the light of the fact that the evidence against all the accused is tied together, like Siamese twins at the umbilical cord with their mother.
See: EBRI V. THE STATE (2004) LPELR – 996 (SC); OKORO V. THE STATE (2012) LPELR -7846 (SC); KASA V. STATE (1994) LPELR – 1671 (SC); IKEMSON V. STATE (1989) 3 NWLR (PT.110) 455.
In UMANI V. THE STATE (1988) 1 NWLR (PT. 70) 274, the trial Judge discharged the 1st, 2nd, 5th, 6th and 7th accused persons on the charge of murder on the ground that the defence of alibi succeeded. He however convicted the Appellant for murder because he rejected his defence of alibi. Although the Court of Appeal dismissed the appeal, the Supreme Court allowed the appeal by a majority. The Court held that the evidence on which the learned trial Judge has based his conclusion on the guilt of the Appellant is the testimony of PW1, PW2 and PW3, testimony which in discharging the five accused persons he has at the very least cast so much doubt. In that wise it is extremely hard to remove any doubt as to the guilt of the Appellant.
In KALU V. THE STATE (1988) 4 NWLR (PT. 90) 503, the Appellant and another person were

arraigned before the High Court of Imo State. The evidence led by the prosecution was that the Appellant and the second accused person, in company of other armed persons, broke into the dormitory of the Asaga Boys Secondary School Ohafia and murdered the deceased. During the trial, eight witnesses gave evidence for the prosecution, the most important of which were PW6 and PW7. The witnesses contradicted themselves. The learned trial Judge held that the case against the 2nd accused was not established beyond reasonable doubt. He was therefore discharged and acquitted. Although the appeal of the Appellant to the Court of Appeal like in the case of UMANI V. THE STATE (supra) was dismissed; the Supreme Court allowed the appeal. The Court held that where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial Judge in favour of one of the accused persons, the same doubt should also be resolved in favour of the others. Consequently if one is discharged and acquitted, the other should also be discharged and acquitted. Delivering the leading judgment of the Court, Kawu, J.S.C., said at pages

508 and 510:
“Now, one of the main complaints in this appeal is that the reasons given by the learned trial Judge, as set out above, for doubting the testimony of PW6 in regard to the case against the 2nd accused, apply equally to the case against the appellant and that in the circumstances, the appellant should also have been given the benefit of doubt. I think there is substance in this complaint… It was for the reasons stated above that I reached the conclusion on the 28th day of June, 1988 that the conviction of the appellant cannot stand and accordingly allowed the appeal and set aside the conviction as already stated.”
In ADELE V. THE STATE (supra), Onu, J.S.C., citing UMANI V. THE STATE (supra), said at page 293:
“Indeed, it is now settled that when a trial Judge has totally discredited and rejected the evidence of a witness and regarded it as lacking in probative value and on the basis of that refused to use it as a basis of convicting another accused person, he should decline to use it as basis for convicting another accused person especially when, as in the instant case, the evidence in respect of appellant is inextricably

interwoven around the 7th accused who was discharged and acquitted.”
For the purpose of exculpating an Appellant from criminal responsibility, conviction and sentence, there must be no additional evidence incriminating the Appellant. Putting it in another language, the convicting evidence cannot be untied or separated in respect of the Appellant vis-a-vis the co-accused persons. In other words, the evidence joined together like Siamese twins, so much so that all accused persons must either fall or stand together.
Howbeit, I must sound that it is not the law that once an accused person is discharged and acquitted, the co-accused must, as a matter of course or routine be discharged and acquitted like the night following the day and vice versa. It is not so. There is no such automatic position. It depends entirely on the facts of the case before the Court. A Court will only be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused persons is the same and nothing but the same; and not merely in some nexus or proximity. Putting it differently, where the Court finds that no case has been made against an

accused person, he can be discharged and acquitted, as in this case. The Court can convict the co-accused on the basis of the exculpatory evidence against him, if any. See: IDIOK V. STATE (2008) LPELR – 1423 (SC).

In the instant appeal, the Appellant as 3rd accused person was arraigned with three others – Lawrence Okon Esin, (1st accused) Godwin Otu Ita (2nd accused) and Bassey Ita Ekpenyong (4th accused) – before the Akwa Ibom State High Court. The particulars of the offence in respect of the first count charge of arson is that:
PARTICULARS OF OFFENCE
“LAWRENCE OKON ESIN, GODWIN OTU ITA, GODWIN ETIM OKON and BASSEY ITA EKPENYONG and others now at large on the 29th day of July, 2011 at No. 10 Ekerendu Street, Oron, within Oron Judicial Division unlawfully set fire on four flats, property of one Sarah Ekpenyong Bassey:”

See Page 2 lines 20 to 23 of the Record of Appeal.

The particulars of offence in respect of the second count charge of kidnapping is that:
PARTICULARS OF OFFENCE
“LAWRENCE OKON ESIN, GODWIN OTU ITA, GODWIN ETIM OKON and BASSEY ITA EKPENYONG and others now at large on the 29th day of July, 2011 at

No. 10 Ekerendu Street, Oron, within Oron Judicial Division kidnapped one Abang Ekpenyong Eta.”
(Page 3 lines 4 to 8 of the Record of Appeal)

The prosecution called two witnesses – Mrs. Sarah Ekpenyong Bassey, who testified as PW1 and CpI. Alex Arerebo, the Investigating Police Officer, (IPO) who testified as PW2. The evidence of the two witnesses was in respect of all the four accused persons. Commenting on the evidence of the witnesses, particularly the evidence of PW1 the learned trial Judge held that:
“There is no dispute that the accused persons were fixed at the scene of crime. That PW1 said that the accused and their co-hoodlums arrived her compound by 6pm. During cross examination she was not challenged that it was already dark and so she could not identify any person at the scene. Her evidence in my view remains unchallenged. The position at law and I think it is trite, that once an accused person is fixed at the scene of crime there will be no basis for identification parade.”
(Page 214 lines 14 to 21 of the Record of Appeal)

The above finding and holding of the learned trial Judge concerning the evidence of PW1

and the accused persons included the 4th accused person whom he later discharged. In fact, in his later finding on the evidence of PW1,the learned trial Judge held specifically that:
“I am satisfied that the evidence of PW1 is credible and I feel safe to act on it.” See: Page 215 lines 17 to 18 of the records.”

It was after the above finding on the evidence of PW1 that the learned trial Judge expressed his doubt and perceived innocence of the 4th accused person. Then again, he proceeded to discharge and acquit the 4th accused person and convicted the Appellant and the other two co-accused persons without showing how the evidence of the prosecution witnesses related to the 4th accused person differently from the Appellant and the other accused persons.
From the records, the evidence of PW1 whom the learned trial Judge had held to be credible and safe to act on concerning the 4th accused person during cross examination is that:
“xxx How many children have you?
Ans. I have five but four are alive.
Xxx What order of birth is the 4th accused?
Ans. He is my second child.
Xxx Did you have any problem with the 4th accused who is

your second son?
Ans. I had no problem with the 4th accused but I know that he had a problem with his father because he refused to go to school.
(Page 107 lines 14 to 22 of the Record)
Still answering questions put to her during cross-examination concerning the 4th accused person whom the learned trial Judge discharged and acquitted, PW1stated that:
“xxx. The 4th accused person is your son. Is that correct?
Ans. He is my son.
xxx. The 4th accused person was not arrested at the scene is that not so?
Ans. I saw him as he was trying to escape. He came along with others, when the police arrived he escaped. I went to the police and from there we went to his house where he was arrested by the police.”
(Page 110 lines 8 to 14 of the Record).

The Appellant’s contention therefore is that if, the learned trial Judge could doubt the evidence of PW1 which he had held to be credible and safe to act on concerning the 4th accused person to the extent that he could discharge and acquit the 4th accused person, and there is no extra evidence of any other witness concerning the role played by the Appellant in respect of the

offences for which he was arraigned, tried and convicted, he submitted that the doubt the learned trial Judge expressed which led to the discharge and acquittal of the 4th accused person ought to have been extended to the Appellant. The argument of the learned counsel for the Appellant stands to reason and in consonance with the Supreme Court decisions referred to above on where two or more persons are charged with the same offence and the evidence led by the prosecution against all of them is interwoven, if one of them is discharged and acquitted, then the other or others must also, be discharged and acquitted. Based on this principle of law, the Appellant’s counsel urged this Court to also discharge the Appellant.

I have set out above the position of the law as well established by the Apex Court. In my humble view, the evidence of the two prosecution witnesses who testified against the 4th accused person that was discharged by the trial Court is interwoven with the evidence adduced against the Appellant. This is because, the prosecution witnesses whose evidence the learned trial Judge on one breathe held credible but again summersaulted and

doubted on the basis of which he discharged the 4th accused person are the same witnesses who testified against the Appellant. Also, the offences for which the 4th accused person was arraigned, tried and discharged is the same offence for which the Appellant and his co-accused were arraigned, tried and convicted by the learned trial Judge. There is an unchallenged evidence of the prosecution that the 4th accused person like the Appellant was among the 70 persons who invaded the house of PW1 on 29th July, 2011, set the house ablaze and kidnapped her son, Abang Ekpenyong Eta. The PW1 under cross examination said she saw the 4th accused when he escaped as the police arrived the scene of crime and that days after they went to his house and arrested him. Accordingly, if the learned trial Judge rightly found an exculpatory piece of evidence from the prosecution witnesses in favour of the 4th accused person, the learned trial Judge ought also, to have extended the same piece of exculpatory evidence to the Appellant and discharge and acquit him.

Upon a calm consideration of the reason for discharging the 4th accused person, I am unable to arrive at the conclusion

of discharging and acquitting the Appellant. The learned trial Judge in his reason stated that:
“One thing disturbs my mind in this case. I have my serious doubt if the 4th accused was present at the scene. He was arrested between 5-8 days after the offences were committed. He might be a prodigal son but I am strongly convinced that he was not present in her mother’s premises.”
(Page 215 lines 19 to 23 of the Record of Appeal)

With due respect to the trial Court, this finding is not borne out of the evidence placed before it. The unchallenged evidence of the Prosecution witnesses particularly the PW1 who happens to be the mother of the 4th accused is that the 4th accused was in the words of the trial Court one of “the hoodlums” who invaded the PW1’s premises on the fateful date, burnt down her building and kidnapped her son. The finding of the trial Court was therefore wrong as no such doubt could have been created based on the evidence on the records. This distinguishes this case from the host of cases I referred to above on effect of interwoven evidence against a number of accused persons charged with the same offence. In

the referred Supreme Court decisions, there was no case where the Apex Court held that the trial Court was wrong in coming to the conclusion that there was evidence exculpating an accused and still went ahead to hold that the same evidence would have also been relied on to exculpate the other accused persons. I have the firm conviction that the Apex Court in its referred decisions did not intend to create an avenue for the discharge of accused persons who should ordinary be convicted. Rather the rationale of the principle laid down by the Supreme Court on inextricable interwoven evidence against many accused persons is to ensure that the lower Courts do not exercise different legal measures on accused persons charged with the same offence brought before them. So where as in this case the learned trial Judge erred in his finding of exculpatory evidence to discharge the 4th accused, this Court cannot base on such wrong finding to discharge and acquit the Appellant. The Supreme Court authorities relied on by the Appellants on this principle of law are therefore not applicable to this case. Accordingly, I hold that in the instant case where I have come to the

conclusion that the trial Court was wrong when it found doubt in evidence of the Prosecution where there was no such doubt, it will work injustice on the society for this Court to hold that the trial Court should have also based on its wrong finding to discharge and acquit the Appellant. I therefore resolve issue 1 in favour of the Respondent.

SUBMISSIONS ON ISSUE 2
“Whether the learned trial Judge was right when he held that the extra-judicial statement of the appellant to the police was confessional”

Learned counsel for the Appellant contended that there was nothing confessional about the extra-judicial statement of the Appellant tendered and admitted as Exhibit “D”. He submitted that for the extra-judicial statement of the Appellant to be considered a “confession” as held by the learned trial Judge, the said statement must contain an admission by the Appellant stating or suggesting that he committed the offences of arson and kidnapping preferred against him in the trial Court. That contrary to the finding and holding of the learned trial Judge, there is nothing in the extra-judicial statement of the Appellant stating or

suggesting that the Appellant confessed to the commission of any of the two crimes for which he was charged, tried and convicted by the trial Court. He referred to: PAGES 15-16 OF THE RECORD OF APPEAL; SECTION 28 OF THE EVIDENCE ACT, 2011; ADEBAYO V. STATE (2014) LPELR-22988 (SC) PP. 4041 PARAS E-C; NKIE V. FRN (2014) LPELR-22877(SC) P.29 PARAS D-F.

Mr. Idiege further argued that the Court has a duty to carry out certain tests in order to determine the voluntariness or otherwise of extra-judicial statement whether retracted or not. That if the trial Court had tested the extra-judicial statement of the Appellant with either the oral testimony of the Appellant during trial or the evidence elicited from him during cross-examination, it would have realized that the said statement does not contain the truth of what is stated therein. He noted that the failure of the Court to evaluate the evidence of the Appellant rendered the finding of the Court perverse as there is no evidence to support the said finding. He cited: NASIRU V. THE STATE (1999) 2 N.W.L.R. (PT. 589) 87; BAYO ADELUMOLA V. THE STATE (1988) 1 N.W.L.R. (PT. 73) 683 @ 686 HELD 17; MINI LODGE LIMITED V. NGEI

(2010) ALL F.W.L.R. (PT. 506) 1806 @ 1834 PARAS D-G.

The Respondent’s counsel reproduced some part of the Appellant’s statement and submitted that the mere inference that the Appellant was part of the mob that invaded the house of PW1 with the common intention of committing Arson and Kidnapping is enough to make his statement confessional to the charge proffered against him. The mere fact that the Appellant’s statement did not disclose a full confession does not make it any less confessional as long as it has been shown that the statement though not direct and positive and short of a full confession, includes an incriminating admission to the charge proffered. The same is enough acknowledgment of the guilt of the accused. He submitted that the Appellant having failed to raise the proper objection at the point when Exhibit D was sought to be tendered, the statement is deemed to have been made voluntarily which does not require further corroboration. The evidence of PW1 and PW2 nevertheless corroborated the content of the statement. ADEBAYO V. STATE (2014) LPELR-22988 PP 40-41; ADEBAYO ADEYEMI V. THE STATE (2012) 9 ACLR P.203 at 219

to 220; ISONG V. STATE (2016) LPELR- 40609 (SC) p 28 PARA D-F.

RESOLUTION OF ISSUE 2
By the provision of Section 28 of the Evidence Act, an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime amounts to a confession. See: SIMON V. THE STATE (2017) LPELR- 41988 (SC); OSENI V. THE STATE (2012) LPELR- 7833 (SC); PATRICK IKEMSON & ORS. V. THE STATE (1989) 3 NWLR (PT.110) 455 AT 476.
Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See: PATRICK IKEMSON & 2 ORS V. THE STATE (1989) 3 NWLR (PT.110) 455 AT 476 PARA D; JOSEPH IDOWU V. THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (PT.680), AT 48, NKWUDA EDAMINE V. THE STATE (1996) 3 NWLR (PT.438) 530 AT 537 PARA

D-E; SAMUEL THEOPHILUS V. THE STATE (1996) 1 NWLR (PT.423) PAGE 139 AT 155 PARA A-B; AWOPEJO V. THE STATE (2002) 3 MJSC 141 AT 151. SEE ALSO: PETER ILIYA AZABADA V. THE STATE (2014) ALL FWLR (PT.751) 1620, PARA B; where the Apex Court, per the learned Onnoghen, JSC (as he then was) declared that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved…Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”
See: DANJUMA V. STATE (2019) LPELR – 47037 (SC).

The question herein is whether Exhibit D qualifies a confession for the purposes of a confessional statement. The Appellant’s extra-judicial

statement to the Police was tendered without any objection and admitted as Exhibit D. Said statement is at page 15 of the records. In the statement, the Appellant stated inter alia thus:
“…I carry born to rule and others we gather at Eyo-Abasi and the Nwosuru tell us that he work that we do in the night at Ekeredu Street there me and others which I did not know their names but if seen can identify. We started to carry three person to drop at the Ekeredu street after that myself and others were standing at the roadside Nwosuru and some of the boy enter the compound and carry the complainant son Aban outside and ask the said boy to sleep at the road and ask us to beat him when he came orders us to started damage the properties on the compound and set fire on the building I did not know what happen he ask us to save our lives and he collected my motorcycle from me we were about to go a motor car came I did not know that they police officer as we were started to shout on them there they arrest me and Lawrence and other run enter bush. I did not know were they carry the complainant son…” (underlining ours for emphasis)
In my view

the evidence highlighted above suggests an inference that the maker committed the crime of Arson. The statement also infers that the Appellant was among the mob who invaded the PW1’s house and whose gang kidnapped the PW1’s son. By inference he admitted his role in the events of the evening of 29th July 2011 at PW1’s house. In line with Section 28 of the Evidence Act 2011, the statement above shows an admission as well as suggests an inference that the maker was part of the mob that invaded the PW1’s house on the 29th of July 2011. Also, going by the authority of ADEBAYO V. STATE (2014) LPELR-22988 PP 40-41; cited at paragraph 4.30 of the Appellant’s brief, “the truth of the main fact charged or some essential part of it”, which was held to be a requirement of a confessional statement, has been met in the extra judicial statement of the Appellant reproduced above. I agree with the Appellant’s counsel that Exhibit D failed to disclose a full confession, however in ADEBAYO V. STATE (supra); it was further held that a confession:
“also includes an incriminating admission made that is not direct and

positive and short of a full confession. See: Section 27(1) of the Evidence Act. Confession has also been held to be a criminal suspect’s oral or written admission of guilt, which often includes details about the crime alleged.”
Thus, going by the authority highlighted above, the mere fact that the Appellant”s statement did not disclose a full confession does not make it any less confessional. As in this case it is apparent that the statement though not direct and positive but short-of a full confession, includes an incriminating admission to the charge proffered. I therefore hold that Exhibit D is enough acknowledgment of the crime of the accused.
The mere inference that the Appellant committed the crime of Arson, and was part of the mob that invaded the house of PW1 with the common intent of committing Arson and Kidnapping as highlighted above and in line with the case of YARO V. STATE (supra), is enough to make his statement confessional to the charge proffered against him. I hold that Exhibit D is the Appellant’s admission against himself. The said Exhibit leaves no reasonable doubt in the mind of the Court or reasonable

persons that the Appellant committed the offence. See: MUSTAPHA MOHAMMED V. STATE (2007) 2 NCCS 574; SALAWU V. STATE (2010) LPELR- 9106 (SC).

I therefore hold that the learned trial Judge was right when he held that Exhibit D was a confessional statement. I resolve issue 2 in favour of the Respondent.

SUBMISSIONS ON ISSUE 3
3. Whether the learned trial Judge properly evaluated the evidence adduced by the parties before coming to the conclusion that the evidence of PW1 was credible and that it was not shaken under cross-examination
4. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt as required by law to secure the conviction and sentencing of the appellant.

On the issue of evaluation of evidence, Mr. Idiege submitted that the trial Court failed to properly assess the totality of the evidence adduced by the prosecution side by side with the evidence adduced by the Appellant as it is required to do, before coming to the conclusion that the evidence of PW1 was credible. He stated that a careful consideration of the evidence of PW1 would have revealed her interest in the case, her lack of integrity and the

self-contradictory nature of her evidence which was also contradicted by the evidence of PW2 as well as the surrounding circumstances of the case. He referred to the evidence of PW1 and PW2 in noting that their evidence were marred by contradictions on material facts thereby rendering same unreliable. He cited authorities in that regard.

On the issue of proof, learned counsel for the Appellant submitted that from the totality of the evidence adduced at trial, the Respondent failed to discharge the evidential burden placed on it to prove the guilt of the Appellant beyond reasonable doubt. He reproduced the ingredients necessary for proof of arson and kidnapping, submitting that the trial Court was wrong when it found and held that there was abundant evidence linking the Appellant with the commission of the offences charged. He relied on: SECTION 1(2) OF THE AKWA IBOM STATE INTERNAL SECURITY AND ENFORCEMENT LAW, 2009; SECTION 138 OF THE EVIDENCE ACT, 2011; THE STATE V. AJIE (2000) 3 NSCQR 53, (2000) 7 S.C. (PT. 1) 24; OKHIRIA V. STATE (2016) 15 N.W.L.R. (PT. 1535) 342 @ 356 PARAS F-G. In conclusion, he urged the Court to allow the appeal, discharge and acquit the Appellant.

On the issue of proof, the Respondent’s counsel submitted that the evidence of one credible witness, if accepted and believed by a trial Court is sufficient to secure a conviction in a criminal trial. More so, the evidence of the victim is the best evidence which needs no corroboration. He added that whether Exhibit D met the legal requirement or not, the evidence of PW1 was sufficient to establish the offences, as the offences needed no corroboratory evidence to be proved. On the issue of contradictions, learned counsel argued that they are minor contradictions which do not go to the root of the case. He relied on: IKPA V. STATE (2017) LPLER -42590 (SC) AUGIE JSC; SHINA OKETAOLEGUN V. THE STATE (2015) LER SUIT NO: SC 334A/2012; NWAEZE V. STATE (1996)2 NWLR (PT.428) 1.

He therefore urged the Court to dismiss the appeal and uphold the conviction of the Appellant.

RESOLUTION OF ISSUE 3
The law is trite and well-established that the credibility of evidence for the purpose of securing conviction of an accused is not ordinarily dependent on the number of witnesses that testified on the point. In other words, the

evidence of one credible witness, if accepted and believed by a trial Court is sufficient to justify conviction.
See: NWAEZE V. STATE (1996) 2 NWLR (PT. 428) 1; OKETAOLEGUN V. THE STATE (2015) LPELR – 24836 (SC); BASSEY V. STATE (2019) LPELR – 46910 (SC). This is to say, if the evidence of a single witness sufficiently proves a case against an accused person and the trial Court accepts the evidence there is no rule or practice dissuading the Court from convicting on the evidence. See: IGBO V. STATE (1975) LPELR – 1447 (SC).

The Appellant herein contended that the learned trial Judge in his judgment merely recited the evidence-in-chief of the Prosecution witnesses as well as the evidence elicited from them during cross-examination without examining the defence put up by the Appellant in his evidence-in-chief as well as evidence elicited during cross-examination for the purpose of ascribing probative value thereto. The Appellant’s counsel submitted that the failure and or neglect of the learned trial Judge to evaluate the evidence of the Appellant led the learned trial Judge to reach a perverse decision.
It is trite

law that the Court must not be wary in giving the evidence of the accused the consideration it deserves no matter the level of the defence, whether it is full of figments of imagination, fanciful, filled with porous lies or doubtful. See: BOLANLE V. STATE (2005) 7 N.W.L.R. (PT. 925) 431. Evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial Court, which had the opportunity to see and hear the parties and assess the witnesses. The trial Court had the advantage of seeing the witnesses, watching their demeanor and hearing them give evidence. This Court therefore will be cagey to intervene with or reverse findings of fact made by the Court of trial unless such findings are perverse. See: STATE V. AJIE (2000) 11 NWLR (PT.678) 434; IN-TIME CONNECTION LTD. V. ICHIE (2009) LPELR -8772 (CA) PP13 -144.
In criminal trials where the onus of proof is squarely on the Prosecution, it is the foremost duty of the trial Judge to evaluate the evidence of the Prosecution, where and if the Court finds that the Prosecution has proved its case, the Court will now consider the defence of the accused person as adduced and the

relevant defence open to him to ascertain whether any reasonable doubt has been or could be raised in the proof of the case of the Prosecution. Where any such doubt is raised the trial Court will put the doubt in the legal account of the accused person and go ahead to discharge and acquit him. In the instant case the trial Court having assessed the witnesses and upon consideration of the demeanor of the witnesses believed the evidence of the Prosecution witnesses particularly the PW1 (the victim) as against the evidence of the Appellant when it held; “I am satisfied that the evidence of PW1 is credible and I feel safe to act on it.” See: Page 215 lines 17 to 18 of the Record of Appeal. Accordingly, the learned trial Judge disregarded the oral evidence of the Appellant especially as he found it was at variance with his extra judicial statement (Exhibit D); and so could not create reasonable doubt in the mind of the Court. The testimony of the PW1 on record is cogent and in accord with reason that because she and her late husband allegedly wrote petition against the Eyo Abasi village they came for a reprisal attack. Also her evidence is consistent with the other

evidence before the trial Court particularly Exhibit D that the Appellant with others invaded her compound, set her house ablaze and kidnapped her son. I do not find the finding of the trial Court perverse. I cannot therefore fault the learned trial Judge for disregarding the oral evidence of the Appellant as it is trite that where an accused person is shown to have made a statement previously, which is inconsistent with the defence given at the trial, a trial Court will be right to conclude that the evidence given at the trial is unreliable, aimed at exculpating the accused from blame. See: EDOKO V. STATE (2015) ALL FWLR (PT.772) 1728. I hold the view that the learned trial Judge rightly evaluated all the evidence before it and believed the evidence of the prosecution witnesses as against that of the Appellant.

On the contention of the Appellant that the evidence of the PW1 contradicted itself and the evidence of the Prosecution was contradictory as a whole, he referred majorly on the Prosecution witnesses statement as to the time the mobs invaded the PW1’s residence. He referred to the records to show that while the PW1 said the mob invaded her

compound by 6 pm, the PW2 said report was made at the station at 7:30pm. Again, that in her evidence-in-chief on the 4th December 2012; PW1 gave evidence that the police and the soldiers called the men of the Fire Service in Oron, meanwhile PW2 nowhere in his evidence-in-chief and or during cross-examination stated that he or any other policeman invited soldiers to the scene or that men of the Fire Service were invited or that they went to the scene. Furthermore, PW2 in his evidence-in-chief on 17th July, 2013; said that owing to the various threats on the life of the PW1, she was kept in their custody for three months, while PW1,throughout her evidence-in-chief as well as during cross-examination never mentioned the fact that she was in the police custody even for a moment. Then again, on the evidence of the PW1 touching the Appellant who was the 3rd accused person before the trial Court. In her evidence-in-chief, PW1 said it was the 3rd accused person (Appellant), who entered the bush and dragged out Abang Ekpenyong Eta and inflicted machete cuts on him and one of the attackers who had not been arrested fired into his head while she rushed to help her son.

See Page 97 lines 31 to page 98 lines 1 to 2 of the records. Still in her evidence she went on to say the 3rd accused person who rode on a motor cycle with the help of 2 other persons who were not before the trial Court took away her son, Abang. See: Page 98 lines 3 to 6 of the records. However, under cross-examination on 5th December, 2012; PW1 said it was Bassey Ita Edohonsi who inflicted mortal wounds and also took away her son. See: Page 100 lines 21 to 23 of the records. This is the x ray of the contradictions the Appellant alleged existed in the evidence of the Prosecution for which he called on this Court to set aside the conviction and sentence of the Appellant.

discrepancies are expected as being natural.”
Also in IKPA V. STATE (2017) LPLER -42590 (SC) AUGIE JSC held thus:
“The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is pretty well settled. It is not every minor contradiction that matters; for a trial judge to disbelieve a witness, the contradiction in his evidence must be on a material point -KALU V. STATE (1988) 3 NSCC 1. Thus, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the prosecution’s case… a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts; not necessarily when there are minor discrepancies in the details between them… Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective and slant. This does not necessarily mean that the events they are narrating did not take place. It only

means most of the time that the event took place… that is why the law says that contradictions, which are not material or substantial, will go to no issue”
It is therefore settled beyond peradventure that the testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses. See: ENAHORO V. QUEEN (1965) NMLR 265; OGUN V. AKINYELU [2004] 18 NWLR (PT. 905) 362, 392; EMIATOR V. STATE [1975] 9-10 SC 112; IKEMSON V. STATE [1989] 3 NWLR (PT 110) 455, 479; AFOLALU V. STATE [2009] 3 NWLR (PT. 1127) 160.
This is so because it would be prodigious to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that ever happens, such accounts should

be treated with suspicion, as it is likely that the witnesses were tutored and compared notes. In effect, minor variations in testimonies seem to point to the reality and truth of accounts of the witnesses. See: OKOIZIEBU V. STATE [2003] NWLR (PT. 831) 327;NASARU V. STATE [1999] 6- 9 SC 153;IKEMSON V. STATE (supra). In any event, Courts have even taken the stance that witnesses may not always speak of the same facts or events with equal and regimented accuracy. See: OGUN V. AKINYELU [2004] 18 NWLR (PT. 905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, they must raise doubts as to the guilt of the accused person. See: UKPONG V. STATE (2019) LPELR – 46427 (SC); NWOSISI V. STATE [1976] 6 SC 109; EJIGBADERO V. STATE [1978] 9- 10 SC 81; KALU V. STATE [1988] 4 NWLR (PT. 90) 503; IGBI V. STATE [2000] FWLR (PT 3) 358; [2000] 3 NWLR (PT. 648) 169.
From the evidence of the Prosecution witnesses and the contradictions raised by the Appellant there from which I highlighted above, the question is; did the alleged contradictions suggest that there was no arson and kidnap of the PW1’s son or was the

Appellant not one of those who came and committed the offences? I will like to answer the questions in the negative as the contradictions as alleged in my view are not so material to the extent that they cast serious doubts on the case presented as a whole by the Prosecution which is that; the Appellant and others invaded the compound of the PW1, set her house on fire and kidnapped her son. The evidence of the PW1 on the whole is that the Appellant and his gang invaded her compound, set her house on fire and kidnapped her son; there is no evidence from her that states the opposite so the mix up on who actually carried the PW1’s son out of the compound does not alter the fact that the Appellant and his group committed the offence, so any seeming contradiction in her evidence or the evidence of the Prosecution witnesses as a whole is a mere discrepancy in the details of the witnesses’ narration. This means the contradictions that exist in the evidence of the Prosecution witnesses in the instant case are not material or substantial and as such go to no issue. I hold that the alleged contradictions in the evidence of the Prosecution herein are mere

discrepancies which do not go to the root of the charge. The contradictions alleged are on issues that would not avail the Appellant of the offences as charged in which case the alleged contradictions cannot sanction the discharge and acquittal of the Appellant. See: UKPONG V. STATE (2019) LPELR- 46427 (SC); IKPA V. STATE (2017) LPELR- 42590 (SC); KALU V. STATE (1988) 3 NSCC 1; AKPAN V. STATE (1991) 3 NWLR (PT. 182) 646 SC, DAGAYYA V. STATE (2006) 7 NWLR (PT. 980) 637 SC AND OCHEMAJE V. STATE (2008) 15 NWLR (PT.109) 57.

Finally, the learned counsel for the Appellant contended that the Prosecution did not proof its case beyond reasonable doubt. On this the learned counsel reargued the issues I had answered above in part resolving this issue. He argued that the evidence adduced by the prosecution witnesses was, contrary to the finding of the learned trial Judge, not credible to sustain the conviction and sentencing of the Appellant which has been answered above. Also that the evidence of the prosecution witnesses was contradictory on material facts and unsafe for the learned trial Judge to have in one breath, relied on to convict the Appellant and in

another breath, doubted same and on the basis of the doubt, discharged and acquitted the 4th accused person. This too had been answered while resolving issue 1. The learned counsel for the Appellant again contended that the Prosecution was not able to prove the ingredients of the offences of arson and kidnap to warrant the Appellant’s conviction.

requirement of law. See Section 135 (1) of the Evidence Act, 2011. See also OBUE V. THE STATE (1976) 2 SC. 141. The latter would require the prosecution to prove all essential ingredients/elements in a case to a mathematical certainty, an impossible task given the variables in human affairs. It would mean that no contested criminal case would ever be proved.”
See also: ALUFOHAI V. STATE (2014) LPELR- 24215 (SC).

The Appellant conceded to the fact that the Prosecution proved that the dwelling house of PW1 was set ablaze, but submitted that the prosecution did not prove that the Appellant was either the person or among the persons that set the house ablaze. The evidence of the Prosecution through the PW1 on this was succinct. The PW1 gave account on how on 29th of July 2011, she and two of her sons were attacked in her home and her house burnt down while her son Abang

Ekpenyong Eta, was assaulted and kidnapped. PW1, having identified all the accused persons, in her evidence on 4th December 2012, stated thus:
“I saw so many people who are indigenes of Eyo Abasi which included the four accused persons come into my compound. The 1st accused person I was able to identify was Lawrence Etim Okon and Bassey Eta Edohonsi. It was Lawrence Etim Okon who rode on a motorcycle into my compound with Bassey Eta Edohonsi sitting on pillion holding a gun. I went to ask the two of them what was their mission into my compound suddenly I saw a crowd of persons numbering about 70 running into my compound. They started shooting into the air and demanding me to produce my children otherwise they would kill me… The people I am talking about or referring to are the four accused persons and others now at large. They started to break things in the house. Ekpenyong Ekpenyong Eta and Abang Ekpenyong Eta came out of the house… Ekpenyong Ekpenyong Eta ran into the neighboring compound his brother by name Abang Ekpenyong Eta ran into the bush- the four accused persons came with petrol in 10 litres jelly cans and some came with

20 litre jerry cans. They poured petrol on the house and set fire to the house. They burnt the house, the properties of my tenants… The 3rd accused persons (appellant herein) entered the bush and dragged out the Abang Ekpenyong Eta and inflicted matchet cuts on him and one of the attackers who had not been arrested fired into his head and I rushed to help my son and some of the persons used rod to hit me on my back and my leg. From there, the 3rd accused person who rode on a motorcycle with the help of 2 other persons who are not before this Court spirited away my child, Abang since 2011 till date. I have not seen my son.”

The learned trial Judge appraised the evidence of the PW1 on how the four accused persons came to the PW1’s house with gallons of petrol which they poured around the house and set same on fire. He noted that the evidence of PW1 was not shaken under cross examination. The learned trial Judge therefore relied heavily on the evidence of PW1 set out above to convict the Appellant. With the strong evidence of PW1 against the Appellant as one of those who set her house on fire, the learned trial Judge was right to hold that

the offence of arson was proved against the Appellant. See: page 212, line 26 to page 213, line 10 of the records.

The Appellant submitted that the evidence of PW1 under cross examination identified Bassey Ita Edohonsi as the person who inflicted wounds on her son and took him away and not the Appellant. I had earlier in this judgment observed that the PW1 in her evidence in chief clearly identified the Appellant as the one that rode a motor cycle into the compound when the mob invaded her house and as the one who with the help of two others carried the PW1’s son away. Whether Bassey Ita

Edohonsi is among those that carried PW1’s son away is an issue for his appeal, but in this appeal what is not in doubt is that the Appellant directly or in furtherance of or with the common intention of the others with whom he invaded the PW1’ s compound kidnapped the PW1’s son. Thus the trial Court was right to convict and sentence the Appellant for the offence of kidnapping on the sole evidence of PW1; and I find no reason to disturb that decision. The fact that the trial Court found the evidence of the PW1 credible and relied solely on it to convict the Appellant is good in law. See: ONAFOWOKAN V. STATE (1987) 7 SCNJ 223.

Now on Exhibit D, I held earlier in this judgment that the same is a confessional statement. The same was not objected to at the time of tendering in evidence until when the Appellant was called upon to state his case in defence, it was then he raised the issue that he was tortured to make Exhibit D. Having not been objected to at the time of tendering, the trial Court was right to have admitted Exhibit D in evidence. See: ISONG V. STATE (2016) LPELR- 40609 (SC) 28. The fact that Exhibit D was tendered at and

admitted by the trial Court without objection went a long way to give accreditation to the prosecution’s case against the Appellant. In ASIMIYU ALARAPE & ORS V. THE STATE, (2001) SC1 AT 13; the Apex Court observed as follows:
“At all events, it ought to be noted that the said statements were tendered without objection from the defence. None of the prosecution witnesses were cross examined as to their involuntariness. It was not 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 question of involuntariness of that statement is tested at the time the statement itself is sought to be tendered in evidence.”
The fact that the Appellant in the instant case failed to object to the tendering of Exhibit D on the ground that it was not voluntarily made until in his defence cannot affect the admissibility of Exhibit D. The trial Court in that circumstance could at best treat Exhibit D as a retracted extra judicial confessional statement of the Appellant. The law indeed remains that retraction of an accused person’s confession does not

by itself render the confession inadmissible and a retracted confession is not to be treated differently from any confession that is otherwise. There is no doubt that an accused person’s denial of his confession made at the earliest opportunity may lend weight to the denial. However, the issue of what probative value to ascribe to the retracted confession remains within the primary jurisdiction of the trial Court. See: ABDULRAHMAN V. THE STATE (2018) LPELR – 3661 (SC); R. V. SAPELE & ANOR (1952) 2 FSC 74 R. V. JOHN AGANGAN ITULE (1961) ALL NLR 462 AND DEMO OSENI V. THE STATE (2012) LPELR. In the instant case, the trial Judge accorded probative value to the retracted Exhibit D in the exercise of its legal duty and I find no legal reason to hold to the contrary.

It is the law that once a confessional statement meets the test of admissibility, it alone without more, is sufficient to ground a conviction for the offence which was admitted by the accused. Also the requirement of proof beyond reasonable doubt in criminal cases is completely and fully satisfied by the prosecution by reason of a properly admitted confessional statement. The trial Court was on

the right legal track therefore when he relied on the credible sole evidence of the PW1 and Exhibit D (confessional statement) in convicting the Appellant for the offences of arson and kidnapping. I therefore resolve issues 3 and 4 in favour of the Respondents.

Having resolved all the four issues in favour of the Respondents, I hold that the appeal is bereft of merits. I therefore dismiss the appeal and affirm the conviction and sentence of the Appellant by the High Court of Akwa Ibom State sitting in Oron, delivered by B. F. Etuk, J. on 6th August, 2018 in charge No. HOR/19C/2012.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading before now the judgment just delivered by learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with manner the issues were considered and resolved. I have nothing more to add. I too dismiss the appeal and abide by the other orders made in the lead judgment.

Appearances:

JULIUS IDIEGEFor Appellant(s)

JOSEPH AKPAN, ASSISTANT DIRECTOR MINISTRY OF JUSTICE, AKWA IBOM STATEFor Respondent(s)