ASUQUO v. STATE
(2020)LCN/14350(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Monday, June 29, 2020
CA/C/460C/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Between
OKON EFFIONG ASUQUO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A FREE AND VOLUNTARY CONFESSION OF GUILT MADE BY AN ACCUSED PERSON CAN WARRANT HIS CONVICTION
The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See Effiong vs. State, Uluebeka vs. State (2000) 4 SC (part 1) 203, Idowu vs. State (2000) 7 SC (pt. 11) 50, Alarape vs. The State (2001) 14 WRN 1 SC, Akpan vs. State (1992) 6 NWLR (pt. 248) 439 SC Silas Ikpo vs. The State (1996) NILR 59 SC. PER OWOADE, J.C.A.
WHETHER OR NOT THE FACT THAT AN ACCUSED PERSON RETRACTED HIS CONFESSIONAL STATEMENT MEANS THAT THE COURT CAN NOT ACT ON IT
That the fact that an accused person retracted his confessional statement does not mean that the Court cannot act on it. That it is however desirable that there is some evidence outside the retracted confession before a finding of guilt based on it.
He referred on this to the cases of Ubierho vs. State (2005) 1 NCC 146 at 160, Shande vs. State (2005) 22 NSCQR (pt. 2) 756, Agboola vs. State (2013) 54 2 NSCQR 1162. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court, Calabar Judicial Division, presided over by His Lordship Hon. Justice F. Nnang Isoni in charge No. HC/44C/2014 delivered on the 15th day of March, 2016.
The Appellant Okon Effiong Asuquo alias Eteka Wonder stood trial on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Law, Cap. C16 Vol. 3, Laws of Cross River State of Nigeria, 2004.
The Appellant and others at large were accused of killing one Denis Robert Nnah on or about the 25th May, 2013 at Ikot Offiong Mbai, Akpabuyo Judicial Division.
The Appellant pleaded not guilty to the charge on 27th October, 205.
In proof of its case, the prosecution called two witnesses namely Cpl James Akam (PW1) and Daniel Dennis (PW2).
The prosecution tendered three (3) Exhibits. Exhibit 1 is the statement of the Appellant made on 22nd July, 2016. Exhibit 2 is the photograph of the corpse of the deceased Exhibit 3 is the post mortem report on cause of death.
The Appellant testified for himself in his
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defence and did not call any witness. At the trial, the Appellant resiled from his confessional statement which was admitted as Exhibit 1.
He stated in his defence in Court that he had a fight with the PW2 on the date in issue over sanitation in his mother’s compound where the PW2 lived with his uncle the deceased.
That in the cause of the fight, the PW2 picked up an iron rod to hit him, he instead hit the deceased his uncle who had come out to separate the fight thus leading to his death.
The PW2 in his evidence admitted that there was a fight between him and the Appellant and he left for the police station to report. On his return, he saw his uncle the deceased on the ground. He was told the Appellant stabbed him with a pair of scissors. He took him to the hospital but he died before they could see a doctor. On these facts, the learned trial judge found that the Appellant’s confessional statement Exhibit 1 was corroborated by Exhibit 3, the post mortem Report on the deceased wherein the cause of death is recorded as “penetrating chest injury.” Also, that the conduct of the Appellant after the commission of the crime
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must be taken into account, because he ran to Calabar from the village to escape arrest and prosecution. Furthermore, that while the Appellant in his evidence admitted giving the police the personal details contained in Exhibit 1, he denied the parts that relate to the crime. In convicting the Appellant as charged for the offence of murder, the learned trial judge held first at page 82 of records that “— Exhibit 1 is a confessional statement known to law more so as same was admitted without objection —“ And concluded at page 84 of the records as follows:
In Exhibit 1 his statement to the Police, the accused stated thus:
“I and Nsa were consulted to go and threatened (sic) the deceased so that he can pay the money, I was armed with one scissor (sic) on getting there he was sitting outside. I used the scissor and threatened him and when he wanted to defend himself, I stabbed and he fell down and I ran away. Nsa Nsa did not tell me or Nsa Nsa to kill the deceased. I was the person who stabbed the deceased to death.”
From the foregoing, the act of the accused was not only intentional but premeditated in the sense that
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that he armed himself with a scissors (sic) to go and threaten the deceased and went on to stab the deceased when the deceased tried to defend himself knowing full well that the scissors stab can result in grievous bodily harm or death.
Also the accused person did not just stab the deceased in any other part of his body but on his chest which points to the fact that the act of the accused was intentional with full knowledge that grievous harm of death was the probable consequence.
I therefore hold that the accused person stabbed the deceased on the chest with scissors with the intention of killing him and his action was premeditated. The prosecution has proved this ingredient of murder beyond reasonable doubt.
In the light of the foregoing, I find and hold that from the prosecution has proved (sic) the charge of murder against the accused beyond reasonable doubt. I therefore find the accused person Okon Effiong
Asuquo Alias Eteka wonder guilty as charged and convict him accordingly.
Dissatisfied with the judgment, the Appellant filed Notice of Appeal on 24th October, 2017.
Learned counsel for the Appellant filed Appellant’s
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Brief of Argument dated 15th January, 2018 on 17th January, 2018. It is settled by G. A. Umoh Esq.,
Respondent’s Brief of Argument was filed on 13th April, 2018 but deemed filed on 30th September, 2019.
It is settled by Gregory I. Okem DPP Cross River State.
Learned Counsel for the Appellant nominated two (2) issues for the determination of the appeal.
They are:
1. Whether the prosecution had proved the charge of murder against the accused beyond reasonable doubt, and that it was the act of the accused that killed the deceased.
2. Whether the trial Court had, in line with a plethora of Supreme Court decisions, tested the resiled confessional statement to satisfy itself that it was capable of grounding conviction for the offence of murder against the accused person.
Learned counsel for the Respondent, in essence adopted the two issues nominated by the Appellant’s counsel.
On issue 1, learned counsel for the Appellant submitted that the prosecution failed to establish and prove beyond reasonable doubt the guilt of the Appellant in this case having not proved one of the ingredients of the offence of murder, to
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wit, that the death of the deceased was caused by the act of the accused.
He referred to the cases of Ojo vs. FRN (2008) 11 NWLR (pt. 1099) 468 at 521, NNAJIOFOR VS. PEOPLE OF LAGOS STATE (2015) LPELR 24666, AKPAN VS. THE STATE (2004) LPELR 22741, FABIYI VS. THE STATE (2013) LPELR 21180.
For the proposition that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. He submitted that it is incumbent on the prosecution to establish not only that the act of the accused person caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. Learned counsel for the Appellant submitted further that in a criminal case where it is incumbent on the prosecution to prove its case beyond reasonable doubt, all surrounding circumstances and the credible unchallenged evidence before the Court must be perused carefully. And that where the Court entertains even the slightest of doubt, such doubt should be resolved in favour of the accused person.
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He added that if the Court proceeds to convict the accused upon the failure of the prosecution to establish the guilt of the accused beyond reasonable doubt, the Appellate Court shall quash such conviction and discharge and acquit the accused.
Learned Counsel for the Appellant placed reliance for the above on the cases of Oforlete vs. The State (2000) 12 NWLR (pt. 681) 415, Isiaka vs. The State (2010) LPELR – 11864, Alamu vs. The State (2009) 10 NWLR (pt. 148) 31 at 46, Ndukwe vs. The State (2009) 37 NSCQR 425 at 459, Ochemaje vs. The State (2008) 36 NSCQR (pt. 2) 826 at 881.
He submitted that none of the prosecution witnesses i.e. PW1 and PW2, actually witnessed the alleged stabbing of the deceased by the Appellant with a pair of Scissors from which the deceased is alleged to have died.
Learned counsel for the Appellant reiterated the three ingredients of the offence of murder through the cases of Ochiba vs. The State (2011) 17 NWLR (pt. 1277) 663, Umar vs. The State (2014) vol. 238 LRCN at 147, Obade vs. The State (1991) 6 NWLR (pt.198) 433, Monday Nwaeze vs. The State (1996) 4 NWLR (pt.443) 375, Solomon Adekunle vs. The State (2006)
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14 NWLR (pt. 1000) 717.
He emphasized that the three ingredients of murder –
a) That the deceased died
b) That the death of the person so identified was caused by the accused standing trial
c) That the death or grievous bodily harm was the probable consequence of the act, must co-exist and where one of them is absent or tainted with some doubt, the prosecution cannot be said to have proved the charge beyond reasonable doubt.
He submitted that the evidence adduced by the prosecution as to the actual cause of the death of the deceased having not been witnessed by any person is not legal evidence upon which the Court may act; it is inadmissible hearsay under Section 38 of the Evidence Act 2011 (as amended).
It follows therefore, said counsel, that throughout the whole gamut of the prosecution’s case, the prosecution has failed to establish with certainty that the cause of death of the deceased is positively attributable to the act or omission of the Appellant. Failure to do that leaves reasonable doubt as to what actually killed the deceased and where there is such doubt the case is always decided in favour of the accused.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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He referred to the case of Edoho vs. State (2004) 5 NWLR (pt. 865) 17 at 43 and urged us to discharge and acquit the Appellant.
On issue 1, Learned Counsel for the Respondent submitted that the prosecution had proved the charge of murder beyond reasonable doubt and that it was the act of the Appellant that killed the deceased.
He reiterated the ingredients of the offence of murder and referred to the case of Ayedun vs. The State (2014) 10 NCC 527 at 555 – 556 to say that the burden on the prosecution to prove the charge of murder is discharged in any of these means: – by direct evidence, by the confession of the accused person and by circumstantial evidence.
He submitted that the prosecution relied on the Appellant’s confessional statement which was admitted without objection to prove that the act of the Appellant caused the death of the deceased. He referred to the cases of Oluwa Femi Alo vs. The State (2016) 12 NCC 44 at 80 and Durwode vs. State (2000) 4 NSCQR 33 and reminded us that an accused person can be convicted solely on his confession if it is voluntarily made and the Court is satisfied with its truth.
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He submitted that the Appellant’s confessional statement Exhibit 1 was corroborated by Exhibit 3 the post mortem report which showed that the deceased died from stab wounds that inflicted penetrating chest injury on him.
He urged us to resolve issue 1 in favour of the Respondent.
In deciding issue 1, learned counsel for the Appellant was not on sound footing in his insistence that there was no eye witness from the prosecution witnesses to provide a link between the death of the deceased and the act of the Appellant. This is because, it is not only by direct or eye witness that the prosecution can discharge its burden to prove the act of the accused caused the death of the deceased in a charge of murder. In the instant case, the prosecution proved that the act of the Appellant caused the death of the deceased through the Appellant’s confessional statement Exhibit 1 which was admitted without objection and which unequivocally points to the fact the Appellant stabbed the deceased to death with a pair of scissor.
The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant
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his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See Effiong vs. State, Uluebeka vs. State (2000) 4 SC (part 1) 203, Idowu vs. State (2000) 7 SC (pt. 11) 50, Alarape vs. The State (2001) 14 WRN 1 SC, Akpan vs. State (1992) 6 NWLR (pt. 248) 439 SC Silas Ikpo vs. The State (1996) NILR 59 SC.
In the instant case, to be sure that the trial Court was satisfied of the truth of the Appellant’s confession the evidence of PW1 on page 56 of the record of proceedings read in part thus:
“Court: PW1 is showing the statement of the accused person written by Insp. Alphonsus Eko in my presence.
PW1: This is the statement of the accused person.
Mrs. Sarah Tate:
We apply to tender the statement of the accused person as an Exhibit.
Court: Any objection?
J. O. Umeh Esq.,
We have no objection.
Court: “statement of the accused person Okon Effiong Asuquo dated 22nd July, 2013 is tendered admitted and marked as Exhibit 1 —–“
Clearly, the confession of an accused person to the commission of a crime plays a major part in the determination of
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his guilt and a Court of law is entitled to convict on the confession if as it is in the instant case, it comes to the conclusion that the confession is voluntary.
This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus.
See Okeke vs. State (2003) 15 NWLR (pt. 842) 25 SC.
Issue 1 is resolved against the Appellant.
On issue 2, Learned Counsel for the Appellant referred to the cases of Okoh vs. State (2014) 8 NWLR (pt.1410) 205, Uluebeka vs. The State (2000) 7 NWLR (pt. 665) 404 and Fed. Republic of Nigeria vs Borishade (2015) 5 NWLR (pt. 1451), P. 159 to say that it is desirable that before a conviction can be properly based on a resiled confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true.
The implication, said counsel is that where is no such corroborative evidence; the case is bound to fail.
He submitted that in the instant case, there is nothing outside the resiled confessional statement to show or prove that the Appellant stabbed the
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deceased to death with a pair of scissor. For instance, that Exhibit 3 which could have served as one of the ingredients in a case of murder can best be described as documentary hearsay as it was not tendered by the maker (the pathologist).
He submitted that the evidence of PW1 as far as the case is concerned is admissible only on what he gathered in the process of investigation, if it is hearsay, it is inadmissible for proving the truth of the exhibits tendered.
He added that the law is settled that express or implied assertions of any person other than the witness who is testifying, and assertions in documents produced to the Court when no witness is testifying are hearsay hence inadmissible as evidence of that which is asserted.
He referred to the cases of Chitex Ind. Ltd. vs O. B. I. (Nig.) Ltd. (2005) 14 NWLR (pt. 945) at 399, Utteh vs. The State (1992) 2 SCNJ (pt.1) 183, Onya vs. Ogbuji (2011) ALL FWLR (pt. 556) 493, F.R.N. vs. Saraki (2017) LPELR 43392 (CA), Ijioffor vs. The State (2001) 4 SCNJ 230, Ojo vs. Gharoro (2006) ALL FWLR (pt. 316) 197 at 212, Subramaniam vs. Public Prosecutor (1956) 1 WLR 955 at 969.
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He concluded that the definition of hearsay evidence as elucidated in the above cited cases makes non-sense of Exhibit 3, in this case, as the maker was not called to testify and is therefore inadmissible.
He urged us to resolve issue No. 2 in favour of the Appellant.
On issue No. 2, Learned Counsel for the Respondent submitted that where an extra judicial statement of an accused has been proved to be voluntary, positive and unequivocal and amounts to an admission of guilt, such a confession will suffice to ground a conviction regardless of the fact that the maker resiled from it at the trial. That the fact that an accused person retracted his confessional statement does not mean that the Court cannot act on it. That it is however desirable that there is some evidence outside the retracted confession before a finding of guilt based on it.
He referred on this to the cases of Ubierho vs. State (2005) 1 NCC 146 at 160, Shande vs. State (2005) 22 NSCQR (pt. 2) 756, Agboola vs. State (2013) 54 2 NSCQR 1162.
He submitted that in the instant case, the Appellant’s confessional statement Exhibit 1 was corroborated by the post mortem report (Exhibit 3) which
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confirmed that the deceased was stabbed.
He submitted that the contention of the Appellant that the Exhibit 3 is hearsay and legally inadmissible is misconceived.
That an unchallenged post mortem report is sufficient evidence in criminal cases once it it proven to be produced and signed by a relevant Government officer. It only becomes necessary for the Court to summon the maker to give evidence if it is challenged and the justice of the case requires. He referred to the provision of Section 55 of the Evidence Act 2011 and distinguished the case of G. Chitex Ind. Ltd. vs. O. B. I. (pt. 945) 399 cited by the Appellant’s Counsel as not applicable to the facts of the case. He argued the crux of the decision of the Supreme Court in the G. Chitex Ind. Ltd. case (Supra) is that where a document is challenged and impugned as unauthentic, the maker must be called otherwise probative value will not be attached to it.
He concluded that the trial Court was right to have relied on the retracted confessional statement to convict the Appellant. He urged us to resolve issue No. 2 in favour of the Respondent.
First, I adopt my decision on issue
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No. 1 as applicable to issue No. 2. This is because as I stated earlier, a free and voluntary confession to crime is sufficient to convict an accused person even for the most heinous of crimes provided the trial Court is satisfied of the truth of the statement.
See Saliu vs. State (2014)… Adeyemi vs. State (2014) 13 NWLR (pt. 1423) 132 SC, Ogedengbe vs. State (2014) 12 NWLR (pt.1421) 338 S.C., Ikumonihan vs. State (2014) 2 NWLR (pt. 1392) 564 C. A., Nkie vs. F. R. N. (2014) 13 NWLR (pt. 1426) 1 S.C.
In the specific determination of issue No. 2 the parties to this appeal are agreed on the legal position of the desirability of corroborating a retracted confessional statement with some form of independent evidence. The grouse of the learned counsel for the Appellant seems to be that Exhibit 3, the post mortem report relied on to corroborate the Appellant’s confessional statement was not tendered by the maker, the pathologist but tendered by the PW1 and therefore according to Appellant’s counsel Exhibit 3 is inadmissible documentary hearsay and therefore not capable of corroborating Exhibit 1, the Appellant’s confessional statement.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Suffice to say, contrary to the opinion expressed by the learned counsel for the Appellant that Exhibit 3 is not documentary hearsay evidence. This is because, Section 55 of the Evidence Act 2011 creates yet another exception to the hearsay rule as stipulated in Sections 37 and 38 of the Evidence Act 2011. The section side titled as “certificates of specified Government Officers to be sufficient evidence in all criminal cases” reads in part as follows:
1) Either party to the proceeding 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, any Pathologist or Entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant 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
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certificate may be taken as sufficient evidence of the facts stated in it.
2) Notwithstanding subsection (1) of this section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of facts stated in it.
3) Notwithstanding subsection (1) and (2) of this section, the Court shall have the power, on the applicable of either party or of its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the Court if it is of the option that, either for the purpose of cross-examination or for any other reason, the interest of justice so requires.
I agree with the learned trial judge and the learned counsel for the Respondent in that the Appellant’s confessional statement: Exhibit 1 was indeed corroborated amongst other things by Exhibit 3, the post mortem report which was rightly admitted in evidence though tendered by PW1.
Issue 2 is therefore also resolved against the Appellant.
Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is
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according dismissed.
The judgment, conviction and sentence of the Cross River State High Court, Calabar Judicial Division presided over by Hon. Justice F. Nnang Isori in Charge No. HC/44C/2014 delivered on 15th March, 2016 are hereby affirmed.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, M.A. Owoade JCA, in the lead judgment just delivered and I too dismiss the Appeal for lacking in merit.
HAMMA AKAWU BARKA, J.C.A.: I had the rare privilege of reading the judgment of my Learned brother MOJEED ADEKUNLE OWOADE, JCA in draft before now.
I agree with the reasoning and the conclusion to the inevitable conclusion that the appeal is bereft of any merit. It is hereby dismissed by me. The judgment of F. Nnang Isoni, J., of the Cross River State High Court in Charge No, HC/44C/2014 delivered on the 15th of March, 2016, is hereby affirmed.
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Appearances:
A. Umoh Esq. For Appellant(s)
Gregory I. Okem Esq. For Respondent(s)
