IWAH v. STAT (2020)

IWAH v. STATE

(2020)LCN/14656(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/128C/2014

RATIO

EVIDENCE: PRINCIPLES GOVERNING ADMISSIBILITY OF CONFESSIONAL STATEMENTS

Now Section 29 of the Evidence Act 2011 governs admissibility of confessional statements.
Section 29(2) and (3) in particular provides that;
“(2) If, in any proceeding where the prosecution proposes to give in evidence, a confession made by a defendant, if is represented to the Court that the confession was or may have been obtained-
(a). by oppression of the person who made it; or
(b). in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence,
The Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.”
The Supreme Court in the case of Dawa & Anor Vs The State (1980) LPELR-932(SC) held that where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the judge to determine whether or not the prosecution have established that it was made voluntarily to the extent that the judge is satisfied so that he feels sure about it. Also in the recent case of the State vs. Gambo (2019) ALL FWLR (pt. 973) 415 @ 437, it was emphasized the fact that a trial within trial is usually ordered by the trial Court when an accused alleges that he did not make the statement voluntarily. This is because any statement which the prosecution intends to use as evidence must be free and voluntarily made being regarded as the best evidence on the guilt admitted by himself.

See: Sunday vs. The State (2017) LPELR – 42259. PER BARKA, J.C.A.
CRIMINAL LAW: NATURE OF MURDER

Murder or culpable homicide as is often called, means or denotes the unlawful killing of a human being by another person. It has also been held to mean the act of killing of a person by another person purposely, knowingly, recklessly or negligently. See Paul vs. The State (2019) 12NWLR (pt. 1685) 54 @ 71 per Kekere-Ekun JSC. PER BARKA, J.C.A.

CRIMINAL LAW: REQUIREMENT TO SUCCEED IN A CHARGE OF MURDER

To succeed in a charge of culpable homicide or murder therefore, the prosecution must establish the following ingredients of the offence beyond reasonable doubt.
i. That the death of a human being has actually taken place.
ii. That such death was caused by the accused person.
iii. That the act of the accused that caused the death of the deceased was done with the intention of causing death or that the accused knew or had reason to know or believe that death would be the probable consequence of his act. All the three ingredients must be established by the prosecution in order to ground a conviction. See Oguno vs. The State (2011) 7NWLR (pt. 1246) 314, Okereke vs. the State (2016) LPELR-40012 (SC), Itu vs. The State (2016) 12 NCC 343-344, Akinlolu vs. State (2015) LPELR-23065, Paul vs. The State (2019) (supra) @ 72, State vs. Musa (2020) 2NWLR (pt. 1709) 499 @ 527. PER BARKA, J.C.A.
CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

In an effort at proving the commission of the offence, the prosecution normally employs the following methods’ viz
i. By direct evidence; or
ii. By circumstantial evidence, or
iii. By confessional statement.
See, State vs. Musa (supra) @ 527, Idi vs. The State (2019) 15NWLR (pt. 1696) 448 @ 468. PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHRISTOPHER IWAH APPELANT(S)

And

THE STATE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of Hon. Justice Elias O. Abua of the High Court of Justice Cross River State in Charge No. HD/1C/2011 sitting at Obudu and delivered on the 29th of October, 2012, wherein appellant and one John Obeneye were convicted of conspiracy and murder and sentenced to death by hanging.

The two accused persons were on the 4th of April, 2011 jointly charged on two counts of the charge which reads:
STATEMENT OF OFFENCE
CONSPIRACY contrary to Section 516 of the Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria 2004.

PARTICULARS OF OFFENCE
CHRISTOPHER IWAH, JOHN OBENEYE and others now at large on the 11th day of July, 2009 at Lishikwel village Bendi village, Obanliku Local Government Area in the Obudu Judicial Division did conspire amongst yourselves to commit a felony to wit: murder.

STATEMENT OF OFFENCE
MURDER contrary to Section 319 Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria 2004.

PARTICULARS OF OFFENCE
CHRISTOPHER IWAH, JOHN OBENEYE and others now at large on the 11th day of

July, 2009, at Lishikwel village Bendi village, Obanliku Local Government Area in the Obudu Judicial Division murdered MICHAEL UMORU ADEDE.

STATEMENT OF OFFENCE
ACCESSARY AFTER THE FACT TO MURDER contrary to Section 322 Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria 2004.

PARTICULARS OF OFFENCE
GODWIN UKOR AND ASU CHRISTIAN knowing that DONALD UKOR AND FIDELIS UGBE did on the 11th day of July, 2009, at Lishikwel village Bendi village, Obanliku Local Government Area in the Obudu Judicial Division murdered MICHAEL UMORU ADEDE, did on the 13th day of July, 2009, at Betriko in Boki Local Government Area received, habour, maintain and assisted the said Donald Ukor and Fidelis Ughbe to escape.

When the charge was read to the two accused persons before the lower Court, they all pleaded not guilty.

The prosecution proceeded to call evidence and thereby called four prosecution witnesses namely; Samson Utsu recorded as Pw1, Imbua Augustine recorded as Pw2, ASP Charles Abasi Umoh Pw3 and Cpl Joseph Mbum Pw4. The prosecution thereafter closed its case.

One Joseph Ibli gave evidence for the accused persons and was

recorded as Dw1. John Obeneye, the 2nd accused person and Christopher Iwah the 1st accused person testified in their defence and were recorded as Dw2 and Dw3 respectively.

Written addresses were thereafter ordered, filed and adopted. On the 29th of October, 2012, the lower Court rendered the vexed judgment to the conclusion that:
“From the totality of the evidence adduced in this case, I am of the firm view that the prosecution has proved its case beyond reasonable doubt as to ground the charges made against the accused persons”

Consequently, appellant and his co-accused person John Obeneye were convicted and sentenced to death by hanging.

With their lives at stake, appellant filed a Notice of Appeal on the 01/4/14 predicated on six grounds of Appeal. The extant Notice of Appeal is the Amended Notice of Appeal filed on the 21/6/2016, deemed filed on the 31/10/16 now predicated on seven grounds of appeal.

The appeal having been properly compiled and entered to this Court on the 9/4/2014, appellant filed a brief of argument on the 21/6/2016; settled by Godwin Omoaha of counsel for the appellant. Learned counsel also upon

receiving the respondent’s brief filed a reply brief on the 19/7/19 deemed filed on the 15/9/2020. On the same 15/9/2020 being the date scheduled for the hearing of the appeal, appellant identified the two briefs filed by him, and urge the Court to allow the appeal, set aside the decision of the lower Court convicting and sentencing appellant to death, and to thereby discharge and acquit the appellant.

Opposing the appeal, the state filed a respondent’s brief on the 5/4/19 deemed filed on the 15/9/2020.

On the same 15/9/2020 being the scheduled hearing date, Okoi Ukam, state counsel in the Ministry of Justice, Cross River State adopted the respondent’s brief settled by Gregory I. Okem the Learned Director of Public Prosecution, Cross River State and urged the Court to dismiss the appeal and to affirm the conviction and sentence imposed by the lower Court.

From the appellant’s brief filed, four issues were identified for the resolution of the appeal as follows:
i. Considering that the making and taking of Exhibits C1, C2 and C5, the Appellant’s confessional statements, did not meet the requirements stipulated in

Section 7(2) of the Criminal Procedure Law, Vol.3, Cap C17, Laws of Cross River State of Nigeria, 2004, was the Court below right to have admitted the exhibits in evidence and to have used it to make extensive adverse findings against the Appellant. Confession not taken Before Police Officer Issue (Ground 6).
ii. Was the learned trial Judge right in admitting and relying on Exhibits C1 and C2 in convicting the Appellant of the offence of murder without conducting a trial within trial, the Appellant having timely objected to the admissibility of the said Exhibits on the ground that they were not voluntarily made? “Trial within trial Issue” (Ground 1).
iii. Was the learned trial Judge right in relying on Exhibit C5 as a confessional statement in convicting the Appellant when he had found at the trial within trial that the statement did not amount to a confession? “Wrong Ascription of Value Issue” (Ground 2).
iv. Given the evidence adduced at the trial, was the learned trial Judge right in holding that the prosecution proved its case beyond reasonable doubt as required by law? Proof Beyond Reasonable Doubt Issue (Grounds 3, 4, 5 and 6).

The respondents on their part crafted three issues for the resolution of the appeal as follows:
1. Whether the learned trial Judge was not right in relying on Exhibits C1, C2 and C5 in convicting the Appellant? (Grounds 1 and 2).
2. Whether the failure of the police in meeting the requirement in Section 7(2) of the Criminal Procedure Law, Vol. 3, Cap. C17, Laws of Cross River State of Nigeria in the making and taking of Exhibits C1, C2 and C6 invalidated the entire trial in the lower Court? (Ground 6).
3. Whether the Respondent did not prove its case beyond reasonable doubt? (Grounds 3, 4, 5).

A solemn but dispassionate examination of the two set of issues to me shows that appellant’s issues 2 and 3 can be conveniently considered along with the respondent’s issue 2. While appellants issue one and respondents issue one, as well as the appellant’s issue 4 and the respondent’s issue 3 are similar to each other. I however find the respondent’s issues clearer and to the point, and thereby elect to be guided by those issues formulated by the respondent counsel.

Issue one.
Whether the

learned trial Judge was right or not relying on exhibits C1, C2 and C5 in convicting the Appellant.

This issue though not raised before the lower Court, is being raised for the first time with the leave of Court. It is in response to the respondent’s issues 1 – 3 as can be seen from the respondent’s brief. It was submitted for the appellant that exhibits C1, C2 and C5, heavily relied upon by the lower Court, being the alleged confessional statements of the appellant failed to meet the requirements of Section 7 (2) of the Criminal Procedure Law Vol. 3 Cap. C17, Laws of Cross River State of Nigeria 2004, being that the alleged confessional statements were made without ensuring that there were video recordings of the said statements as required by Section 7(2) of the Criminal Procedure Law vol.3, when it admitted and relied on the said statements as confessional and convicted the appellant. He argued that where a statute prescribes a procedure or mode of performing an act, any failure neglect or refusal to comply renders the act done a nullity. The case of Chief Sunday Evong vs. Obono, Obono & Associates (2012) NWLR (pt. 1296) 388 @ 404 was

relied upon. He submits therefore that the trial Court was in grave error when it admitted and relied on the said statements as confessional and convicted the appellant.

It was further contended with regards to issue two, that the trial Court was not right convicting the appellant of murder without conducting a trial within trial, the appellant having objected to the tendering of the exhibits on the grounds that they were not voluntarily made. Still further, it was the contention of the learned counsel for the appellant that the learned trial Court could not be right relying on exhibit C5, having found at the trial within trial that the statement did not amount to a confessional statement, and lastly on the issue whether the learned trial Judge was right or wrong having held that prosecution proved its case beyond reasonable doubt as required by law.

Submitting on wrong ascription of value arising from ground 2 of the grounds of appeal, learned counsel argued that exhibit 5 tendered by the Pw4 was promptly objected to, on the basis of which the Court ordered for a trial within trial. He submits that the trial Court which had earlier ruled that the

document was not confessional in nature, somersaulted in his judgment to hold that the statement was indeed confessional and relied on same in convicting the appellant. He complains that the faux paux by the learned trial judge occasioned a grievous miscarriage of justice.

Also making submissions with regards to grounds 3 – 6 under the issue reasonable doubt, learned counsel challenged the finding of the trial Court at page 116 of the record, which is to the effect that the prosecution established the guilt of the accused beyond reasonable doubt. He submits that upon a calm evaluation of the evidence led by the prosecution at the trial, the prosecution can be said to have failed in proving the offences of Conspiracy and Murder allegedly committed by the appellant. He still harped on the issue of exhibit 5 being treated as a confessional statement, and argued that assuming the lower Court was right holding out exhibit 5 as being a confessional statement, the lower Court can be said to have shifted the burden to the appellant proving that the statement was involuntarily obtained. He alluded to the holding of the lower Court on the issue, and relying

on Section 29(2) of the Evidence Act 2011, as well as a host of cases on the issue to submit that the lower Court erred by holding that the prosecution is required to prove the voluntariliness of a confessional statement by prima facie evidence, thus lowering the standard of proof and shifting the burden to the appellant to prove that the statement was obtained involuntarily.

Submitting on the offence of conspiracy labeled against the appellant, learned counsel alluded to the finding of the lower Court on the issue, and further drew the Court’s attention to the definition of conspiracy through case law, and submitted that the lower Court improperly evaluated the evidence on conspiracy. Also alluding to the evidence of the Dw1, and Dw2, as well as that of the appellant, counsel stated that the evidence herein showed that appellant stumbled on the fight between Donald Ukor and the deceased, and tried to stop the deceased from inflicting machete cuts on Donald, but instead got a cut on his left wrist and left to treat himself at Dantext chemist. He then posited that the evidence rendered remained unchallenged and uncontradicted, and posited the view

that the lower Court failed in its responsibility of properly evaluating the evidence thus his perverse finding on conspiracy and thereby urged the Court to set it aside.

Submitting on the defence of self-defense, counsel still alluded to the evidence of the Dw1, Dw2 and Dw3, and argued that the evidence that the deceased was armed with a knife, with which he attacked the appellant not being challenged, contradicted or rebuffed, constituted proof that deceased did infact have a knife with which he attacked the appellant. Relying on case law established, it was argued for the appellant that in all trials of culpable homicide, it is the duty of the trial Court to consider a defense no matter how shallow, improbable or stupid. He submits that the failure of the trial Court to examine the defense of self-defense, arising from the uncontroverted and unchallenged evidence that deceased was armed with a knife with which he injured the appellant was an abdication of the vital duty of the Court of trial.

Learned counsel then proceeded to submit on the ingredients of the offence of murder as stipulated by Section 316(1) of the Criminal Code. Relying on a long

line of decisions as to what constitutes the ingredients of murder, it was argued that all the ingredients, must co-exist in order to ground a conviction. He argued that in the case at hand, the lower Court heavily relied on the evidence of the Pw1 and his extra-judicial statement to the police, which are laden with a lot of contradictions. Analyzing the evidence of the Pw1, and his statement to the police, counsel enumerated what he termed material divergence, lamenting that there exists inconsistencies, thus qualifying for the inconsistency rule enunciated in the case of R. vs. Golder (1960) 3 ER 457 @ 459. Still on the issue, it was argued that the evidence of the Pw1 contradicted the evidence of the other prosecution witnesses. He recounted areas in the evidence rendered, submitting that the prosecution did not adduce credible evidence connecting the appellant with the death of the deceased. Still on exhibit C5, counsel relying extensively on the case of Idowu vs. The State (2000) 7SC (pt. 11) 50 @ 62-63, stated that the lower Court observed in breach the legal principle that there should be evidence however slight outside the confession showing that it is

true. He maintained that there are massive doubts in the prosecution’s case which ought to have been resolved in favor of the appellant, and further contending that there was no evidence indicating that the prosecution has proved the ingredients of the offence of murder beyond doubt.

In conclusion, learned counsel prayed the Court to hold that prosecution failed to prove the case of conspiracy and murder labelled against the appellant and thereby allow the appeal, set aside the decision of the trial Court, and discharge and acquit the appellant.

The learned DPP responding on behalf of the State, categorized his argument under three issues. Firstly on whether the learned trial judge was not right in relying on Exhibits C1, C2 and C5 in convicting the appellant, submitted that the conviction of the appellant was not solely based on his confessional statement alone but also based on the oral evidence adduced by the prosecution witnesses. He referred to the narration of the Pw1, and the report of the post mortem to contend that all the ingredients necessary to ground a charge of murder was established. On the issue of the appellants confessional

statement, counsel agrees with the principle that it be tested by examining the statement in the light of other evidence in determining questions posed therein, contending that there is sufficient evidence outside Exhibits C1, C2 to corroborate it. On whether the learned trial judge was right relying on exhibit C5 as a confessional statement in convicting the appellant, having found that the statement does not amount to a confession, it was argued that even though exhibit C5 did not admit all the ingredients of the offence with which appellant was charged with, there were other facts relevant to the case at hand which led the trial judge to place reliance on the exhibit.

On the issue, whether the failure in meeting the requirement in Section 7(2) of the Criminal Procedure Law, Vol. 3 Cap C17, Laws of Cross River State of Nigeria in the taking of exhibits C1, C2 and C5 invalidated the entire trial in the lower Court, it was argued that matters of evidence being matters under the exclusive legislative list, no other legislative body has the body to legislate thereon. He drew the Court’s attention to the supremacy of the Constitution over any other

enactment, contending that anything done in contravention of the constitution amounts to a void act. He urged the Court to hold that non-compliance with the provisions of the state law does not invalidate the statements made and thereby resolve the issue against the appellant.

Lastly on the issue, whether the respondent did not prove its case beyond doubt, the learned DPP submitting on the offence of conspiracy stated that the essential ingredient of the offence lies in the association to do an unlawful thing contrary to and or forbidden by law. He submits that it is open to the judge to infer conspiracy from the facts before it, and referred to the evidence of the Pw1 at pages 7 and 8 of the record, which remained unshaken to submit that the prosecution proved the offence of conspiracy against the appellant beyond reasonable doubt.

On the second offence of murder alleged against the appellant, learned counsel referred to the ingredients of the offence enumerated in a host of cases including the case of Okereke vs. The State (2016) LPELR-40012 (SC), contending that from the totality of the evidence adduced there is no doubt whatsoever that Umoru

Michael Adede is dead. On whether accused caused the death of the deceased, counsel referred to the evidence of the Pw1, and submits that the question as to who caused the death of the deceased was settled by the witness. On whether it was the act of the appellant that caused the death and whether it was intentionally done, counsel referred to exhibit seven the medical report contending that there is no doubt that the deceased died from the blunt trauma to his head from the blow by the appellant, more so as there was no intervening circumstance between the act of the appellant and the death of the deceased.

On the issue of self-defense agitated upon by the appellant, it was submitted that appellant never raised the issue of self defense, and same cannot be raised except with the leave of Court.

Assuming, counsel argues, that the defense was raised, the conditions stipulated in the cases of Jeremiah vs. The State (2012) 14 NWLR (pt. 1320) 248, Omoregie vs. The State (2008) 18 NWLR (pt. 1119) 464 amongst others were not established. He referred to the evidence adduced by the Pw1, concluding that the fact that the issue was not considered did not occasion

any miscarriage of justice. He urged the Court to also consider the issue of self defence relying on Suleiman Danta Annabi vs. The State (2008) LPELR-495 (SC), and to thereby hold that the defense of self-defense is not available to the appellant.

The Learned DPP, finally called upon the Court to dismiss the appeal and to affirm the conviction of the lower Court.

Replying on points of law, it was argued that the contention by the respondents that Section 7(2) of the CPL and the Evidence Act are in conflict with respect to the admissibility of confessional statements, referred to the provisions of the two laws contending that respondents argument do not avail him. He referred to the cases of Agbanimu vs. FRN (2018) LPELR-43924 (CA) Awelle vs. People of Lagos State (2016) LPELR-41395(CA), Zhiya vs. The people of Lagos State (2016) LPELR-40562 (CA) to maintain that a mandatory procedure of doing things was not complied with in the recording of the appellant’s statements.

All said and done, the basic complaint herein is whether the lower Court was right in coming to the conclusion that prosecution proved the allegation of conspiracy to murder

and murder proffered against the appellant. The instant appeal as can be seen from the record is a fall out from the decision of the lower Court in respect of a charge of conspiracy and murder brought against the appellant and one John Obeneye. The accused person before the lower Court having pleaded not guilty to the two count charge read to his understanding. Premised on his plea of not guilty, the prosecution proceeded to call evidence in proof of its case, and in the process of which tendered exhibits C1, C2 and C5.

Now ground six of the appellants amended notice of appeal, complained that; the learned trial Judge erred in law when he admitted in evidence the extra judicial statements of the appellant to the police (exhibits C1, C2 and C5) as confessional statement without any video evidence thereof and relied on same in his judgment to convict the appellant for the offences of conspiracy and murder. In particular it was the argument of learned counsel that Section 7(2) of the Criminal Procedure Law, Laws of Cross River State was not adhered to when exhibits C1, C2 and C5 were being taken. Learned counsel relied on the decisions of this Court, Lagos

Division in the cases of Zhiya vs. The people of Lagos State (supra), Agbanimu vs. FRN (supra) and Awelle vs. People of Lagos State (supra) per Abubakar JCA, while interpreting similar provisions to argue that the provisions being mandatory in nature, stipulating a procedure or mode of performing an act any failure, refusal or neglect to abide there with renders anything done a nullity. I do not with respect agree with the learned counsel. In examining a similar proviso in the case of AVM Olutayo Oguntoyinbo vs. FRN (2018) LPELR-45218 (CA), per Owoade JCA, to which I concurred, we held the view that the non-compliance with the procedural provisions of Section 7(2) of the ACJA, which is in pari material with Section 7(2) of the Cross River State Law though desirable, the fact that it has not been complied with is of no consequence on the premise as rightly stated in the case afore mentioned:
“The Evidence Act being a specific Act on evidence including trials within trials and admissibility takes precedence over the ACJA, or in our own case, the Criminal Procedure Law in matters of admissibility of evidence”
This Court in the recent

decision of Nneoyi Itam Enang vs. The State (unreported) Appeal No. CA/C/231c/2018 delivered on the 18th day of October, 2019 per Shuaibu JCA, specifically attending to a question quite similar to the one under consideration, found comfort in applying the decision of Owoade JCA, where he said that:
“I have painstakingly examined the decisions of this Court in Joseph Zhiya vs. The People of Lagos State (2016) LPELR-40562, Charles vs. FRN (2018) 13NWLR (pt. 1635) 50 and Nnajiofor vs. FRN (2019) 2NWLR (pt. 1655) 157 with regards to failure to record confessional statement in the presence of the accused legal practitioner… in any event the above decisions did not as well take cognizance of the fact that the Evidence Act is listed as item 23 of the exclusive legislative list of the Constitution as amended. Also the Evidence Act being a specific Act on evidence including admissibility takes precedence over the ACJA in matters of admissibility”.
In the context of the case at hand, my humble view is that the Evidence Act covers the field with respect to the area of admissibility, and any other procedural legislation

otherwise in conformity of the same, of no moment.

The next issue seeks to question the admissibility of exhibits C1 and C2, tendered without a trial within trial inspite of the fact that appellant complained that the statements were not voluntarily made.

It was then argued for the appellant that when the prosecution sought to tender the (2) statements of the appellant, through Pw3 A.S.P. Charles Abasi Umoh, the 1st Accused now appellant objected to the admissibility of the two statement, on the ground that the alleged confessional statements were not voluntarily made by the accused person, and learned counsel thereby sought that a trial within trial be conducted to ascertain the voluntariness of the statements and this, the learned trial judge declined to do proceeding to admit the two statements in evidence, and in the process invalidating exhibits C1 and C2.

The learned DPP on record did not join issues on the issue; I have therefore in the circumstance carefully examined the evidence of the Pw3 leading to the admission of exhibits C1 and C2. The appellant’s counsel seems to be right having asserted that even though the accused person

raised the point that the two statements were not voluntarily made, still proceeded to rule that;
’’I have heard the objection of the learned counsel of the accused persons to the admissibility of the statements allegedly made by the 1st accused person to the police. He says they were not made voluntarily and being confessional in nature, should not be admitted but a trail within trial be conducted…
I am really at a loss to situate the objection taken here as it is bare with no particulars as to what allegation or allegations the defence is making in attacking the said statements of the 1st accused person…
We are not told whether he was induced or threatened or beaten, tortured, nothing whatsoever has been put in to ground the objection. The prosecution I am certain is not to grope in the dark for the allegation as to forage for evidence to disprove same. If the defence has not particularized its allegations, but merely said the statement was not obtained voluntarily I am afraid I do not know what I shall call on the state to disprove… I shall therefore decline in the invitation extended to me to conduct a trial

within trial now, over these two statements as my jurisdiction to do so has not been properly invoked.
Statements of the 1st accused person of 24th and 29th July 2009 made extra-judicially to the Nigeria Police are therefore hereby admitted as such and I would have them marked respectively as exhibit C1-2.”
Now Section 29 of the Evidence Act 2011 governs admissibility of confessional statements.
Section 29(2) and (3) in particular provides that;
“(2) If, in any proceeding where the prosecution proposes to give in evidence, a confession made by a defendant, if is represented to the Court that the confession was or may have been obtained-
(a). by oppression of the person who made it; or
(b). in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence,
The Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the

provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.”
The Supreme Court in the case of Dawa & Anor Vs The State (1980) LPELR-932(SC) held that where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the judge to determine whether or not the prosecution have established that it was made voluntarily to the extent that the judge is satisfied so that he feels sure about it. Also in the recent case of the State vs. Gambo (2019) ALL FWLR (pt. 973) 415 @ 437, it was emphasized the fact that a trial within trial is usually ordered by the trial Court when an accused alleges that he did not make the statement voluntarily. This is because any statement which the prosecution intends to use as evidence must be free and voluntarily made being regarded as the best evidence on the guilt admitted by himself.

See: Sunday vs. The State (2017) LPELR – 42259.
In such a situation the duty rests squarely on the prosecution to prove that the statement was indeed made free and voluntary. The prosecution leads evidence to show that the statement was made voluntarily, while the accused person adduces evidence to the contrary. In the determination of the question therefore the credibility of witnesses and their demeanor comes into play. It is only where the Court upon the conduct of a trial within trial rules one way or the other that the issue is laid to rest. See The State vs. Gambo (supra) @ 438.
A trial within trial may not be necessary, where the issue being disputed is the correctness of the statement, or where the accused person denies making the statement. The importance of admitting in evidence only confessional statements adjudged to be voluntary cannot be over emphasized, for as stated by Karibi-Whyte JSC in Igago vs. The State (1999) 14 NWLR (pt. 637) 1, the Court before admitting the evidence should be satisfied that the statement was really made voluntarily and was not induced by any promise or threat or by actual violence.
Looking at the records before

the Court, it is evident from the ruling of the lower Court that the trial Judge evaded that duty imposed on him in determining whether in fact the statements were voluntarily made or not, and this failure in determining the voluntary nature of the statements vitiated exhibits C1 and C2. For as held in Adisa vs. The State (2014) LPELR – 24221(SC), per Muntaka-Coomassie JSC;
“I agree with Mr. Agbebi for the appellant that the failure of the Court below to conduct a trial within trial to determine the voluntariness of the statement before the admission in evidence of the said statement as exhibit O was wrong, and vitiated the statement which is hereby expunged from the record. See Eke vs. The State (2010) 37 WRN 85 at 107 and Bright vs. The State (2012) 8NWLR. (pt. 1302) 297 at 318. See also COP vs. Ude (2011) 12 NWLR (Pt 1260) 189 at 219.”
It was also held contrary to the position taken by the trial Judge, that where a statement is being tendered in evidence and the accused person denies its voluntariness, the trial Court is duty bound to hold a trial within trial. See Ojegele vs. The State (1988) 1 NWLR (Pt 71) 414 at 428, Obidiozo vs. The State

(1987) 4 NWLR (pt 67) 748. It is my humble but firm view therefore, that the trial Court fell into a grave error when it declined to hold a trial within trial in the instant case in determining the voluntariness of exhibits C1 and C2. The consequence is that, the two statements, exhibits C1 and C2 so admitted are hereby expunged from evidence.

Appellant also complained that exhibit C5 though admitted after a trial within trial, the Court somersaulted at the judgment stage after ruling that the statement was not a confession in itself. Contending that the trial judge cannot approbate and reprobate, it was thus submitted that the Court having accorded the statement the value of a voluntary statement occasioned a miscarriage of justice. In other words, learned counsel is not at ease to the weight ascribed to exhibit C5. I intend to attend to the issue later in the judgment. I must however state right at the outset that I do not agree with the learned counsel, in his contention that the learned trial Judge shifted the burden of proving the voluntariness of exhibit C5 on the accused, when the Court stated that once the prosecution shows prima facie

that the statement was obtained regularly, it behooves the accused who asserts the contrary to show otherwise. This contention by the learned counsel was considered by this Court and the Apex Court, to the conclusion that such a procedure is proper. The apex Court relying on its earlier decision in Osuagwu vs. The State (2013) ALL FWLR (pt. 672) 1605, recognizes the practice of the prosecution calling evidence in proof of their assertion that the statement was voluntarily made, while the accused person who asserted the contrary proving their assertion. This Court also in the case of Oguntoyinbo vs. FRN (supra) per Owoade JCA, elaborated the point thus:
“It cannot be said as the learned senior counsel for the appellant seems to suggest that the learned trial judge had thereby shifted the burden of proof of the voluntariness of the confession to the appellant. This is not so. As in many instances of proof, the ultimate burden of proving that a confessional statement is criminal or civil shift from one party to the other. The decided authorities have variously demonstrated that a person who asserts existence of facts must prove same. See Chairman EFCC vs. Little Child

(2016) 3NWLR (pt. 1498) 72, Duru vs. FRN (2013) 6NWLR (pt. 1351) 441, Al Mustapha vs. The State (2013) 17 NWLR (pt. 1383) 350”.
I agreed with the decision and thereby adopt the decision in respect to the present case.

I would now like to proceed and to consider whether the prosecution proved the count of murder alleged against the appellant beyond doubt as required by the law.

I take note from the record that the charge against the appellant before the lower Court was that of murder contrary to Section 322 of the Criminal Code Law Cap C16 Vol. 3, Laws of Cross River State of Nigeria 2004. The allegation was that appellant on the 11th of July, 2009 at Lishikwei village in Obanliku Local Government Area, in the Obudu Judicial Division murdered on Michael Umoru Adede. The appellant pleaded not guilty to the charge read against him.

1685) 54 @ 71 per Kekere-Ekun JSC.

Thus in the parlance of the instant case, the allegation is that appellant unlawfully killed the deceased, and having denied the allegation, and by virtue of Section 135 (1) of the Evidence Act 2011 as amended, which provides that whoever alleges the commission of a crime against any person, has the onerous duty of proving the same beyond reasonable doubt, imposed that duty on the prosecution to so prove the allegation beyond reasonable doubt; the term reasonable doubt being taken to mean no more than establishing the ingredients of the alleged offence(s). The cases of Akpan vs. The State (1990) & NWLR (pt. 160) 101, Adamu vs. AG Bendel State (1986) 2NWLR (pt. 22) 284, Paul vs. The State (supra) @ 71-72.
The requirement of the law imposing the duty of proving the allegation beyond doubt becomes necessary in view of the constitutional provision of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, to the effect that every person charged with the commission of a crime shall be presumed innocent until proven guilty. This burden does not shift except in special cases imposed by

the law.

To succeed in a charge of culpable homicide or murder therefore, the prosecution must establish the following ingredients of the offence beyond reasonable doubt.
i. That the death of a human being has actually taken place.
ii. That such death was caused by the accused person.
iii. That the act of the accused that caused the death of the deceased was done with the intention of causing death or that the accused knew or had reason to know or believe that death would be the probable consequence of his act. All the three ingredients must be established by the prosecution in order to ground a conviction. See Oguno vs. The State (2011) 7NWLR (pt. 1246) 314, Okereke vs. the State (2016) LPELR-40012 (SC), Itu vs. The State (2016) 12 NCC 343-344, Akinlolu vs. State (2015) LPELR-23065, Paul vs. The State (2019) (supra) @ 72, State vs. Musa (2020) 2NWLR (pt. 1709) 499 @ 527.
In an effort at proving the commission of the offence, the prosecution normally employs the following methods’ viz
i. By direct evidence; or
ii. By circumstantial evidence, or
iii. By confessional statement.
See, State vs. Musa (supra) @ 527, Idi vs. The State

(2019) 15NWLR (pt. 1696) 448 @ 468.

In the case before the Court, the fact that one Umoru Michael Adede is deceased is not subject to dispute. The fact of the said Umoru Michael Adede being deceased was established from the evidence of the Pw1, Samson Utsu, Pw2 Imbua Augustine, Pw4 pl Joseph Mbum, and exhibit C7, the medical report. I find with the lower Court that this ingredient of the offence had been established as required by law.

With regards to the 2nd ingredient, whether accused person now appellant caused the death of the deceased, the lower Court in its judgment, from pages 111 of the record in analyzing the evidence before it relied on the contents of exhibits C1, C2, C5 and the evidence of the Pw1 and 2, as well as exhibit C7 to hold that it was the appellant amongst others who caused the death of the deceased.

The learned counsel for the appellant submitted extensively, that there were material divergences in the evidence of the Pw1, which the trial Court failed to consider. Learned counsel enumerated the perceived material divergence’s to include the following:
i. As regards the brawl that occurred at

akorishi on 10th July, 2009, Pw1 in his statement said that he “stood up and went to tapped (sic) her (Theresa) to follow mw. In his evidence in Court, he said he wanted to touch her (Theresa).
ii. In his evidence Pw1 said “… I called her, as I wanted to touch her, 1st accused (appellant) held me by my shirt collar and broke a bottle to injure me” in his statement he said “one of the boys whose name I do not know held me at the neck
iii. In his statement, Pw1 said the appellant “carried a bottle and threatened to kill my friend Ekpe AKA De Blast. In his evidence he said appellant “ broke a bottle to injure me”
iv. In his statement, Pw1 said one “Ibiagi joined and fought us” at lishikwei village. In his evidence he said it was the “appellant who came with a blow and blow Umoru.
v. In his evidence, Pw1 said “They hit me a (sic) stick on my chest and blood gushed out” however this piece of evidence was conspicuously missing from his statement to the police made a few days after the incident-when both the incident and the injury were still fresh in his memory.

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In his evidence, Pw1 said he and the deceased “ran and got to the road” but in his statement he said “I ran into one compound and escaped into the bush while my friend late Umoru towards the main road”.
vii. In his statement, Pw1 said he and the deceased went to Lishikwei to drink but in his evidence he said” on Saturday 11th, Umoru told me that one of his friends who was from accused person’s village Lishikwei, he wanted to go and see him before he leaves back for Ogoja”.

Premised on the above, learned counsel wants the Court to apply the decision of R. vs. Golder (1960) 3ALL ER 457 @ 459, adopted in numerous other cases by our Court and to apply the inconsistency rule by discountenancing the evidence and the statement of the Pw1 before the lower Court and the police station. The learned DPP on the issue, drew the Court’s attention to the evidence of the Pw1, and submits that the issue as to who killed the deceased was firmly settled.

This issue got the attention of the lower Court, and was considered from pages 114 – 115, to the conclusion that the Pw1 never contradicted himself nor

did he contradict the evidence of any other prosecution witness for that matter. The lower Court cushioned his finding with the decision of the apex Court per Tabai JSC in Ochemaje vs. The State (2008) 15NWLR (pt. 1109) 57 @ 79-80, to the effect that contradictions which are not material or substantial will go to no issue.

Nnamani JSC in Umani vs. The State (1988) 1NWLR (pt. 700) 274, held that where a witness makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which a Court can act upon. Now the evidence of the Pw1 can be seen from pages 7 – 13. At page 9 of the record, learned counsel for the appellant sought to tender in evidence the witnesses statement to the police, but later withdrawn, when the defense objected to its admissibility. It seems curious to me therefore how learned counsel was able to make comparisons with a document he voluntarily withdrew from evidence and thereby not before the Court. The said statement before the police not having been properly placed before the Court, nor was same put to the witness during his testimony,

it will be presumptuous for this Court to hold that the enumerated area of discord pointed out by the learned counsel emanated from the said document. In any case it is the law that contradiction and inconsistency in evidence adduced can only be on issue on material issues and not on minor or inconsequential contradiction. I have also examined the evidence rendered by the prosecution, most particularly that of the Pw1, vis a vis the testimonies of the other prosecution witnesses. I agree with the lower Court that the alleged contradictions and inconsistencies were not material contradictions and by the authority of Ochemaje vs. The State (supra), discountenance the same.

Evaluation of evidence has always been the province of a trial Court. This is so because it is in the best position to assess the credibility of the witnesses having physically seen them and watched their demenour. This onerous duty of evaluation by a trial Court extends to the consideration of the totality of the evidence adduced on an issue, and to determine whether the totality of the evidence adduced supported a particular finding. See Eyiboh vs. Abia (2012) 16 NWLR at page 51.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant case, the lower Court believed the evidence of the Pw1 as against that of the accused person and his witnesses. He was fortified in believing the evidence of the Pw1, who though grilled by cross-examination, remained resolute that it was the accused appellant and others that beat and killed the deceased. The reasoning and conclusion of the trial Court on the issue cannot be faulted.

Let me say that I am not oblivious of the fact that in reaching that decision, the lower Court also relied on inadmissible evidence to wit exhibits C1, and C2 as well as exhibit C5. However, even without the support of the aforementioned documents, the evidence of the Pw1 stands solid pointing to the fact that appellant and his co accused killed the deceased person and I so hold.

Lastly was death intended by the accused person(s)?

The adage is that a man intends the natural consequence of his action. Intention is a state of the mind in which a person seeks to accomplish a given result through a course of action. It is a mental attitude which can seldom be proved by direct evidence, but from the circumstances from which it may be inferred. See

Paul vs. The State (supra) @ 79. In the instant case, Appellant is said to have used a stick with which he hit the deceased, culminating to his death. He cannot in the circumstance absolve himself from the inference that he indeed intended the natural consequence of his action. This issue is hereby resolved against the appellant.

Conspiracy on the other hand, being the other count of the charge against the appellant, has been rightly defined to mean the meeting of two or more minds to carry out an unlawful act in an unlawful means, or a lawful act in an unlawful means. The gist of the offence is the meeting of the mind of the conspirators, and since the offence is not capable of direct proof, it is usually sufficient where the circumstances for drawing the inference or presuming the inference are established. See Daboh vs. State (1977) All NLR 146.

The learned counsel for the appellant heavily relied on the evidence of the Dw1 and Dw2, and disagreed with the holding of the lower Court imputing an agreement between the accused persons. I have earlier related the fact that the lower Court being a Court of trial, believed the evidence of the prosecution, in

particular the evidence of the Pw1 as against that of the defence. Having also analysed the evidence before the Court, I hold the view that the conclusion by the trial Court on the issue is well founded and therefore hold that the offence of conspiracy was similarly proved against the appellant.

Finally did the appellant act in self defense as contended by learned counsel? I wholly agree with the position of the law in that in a criminal trial, any defense raised by the defense must be considered however slight. Nwuzoke vs. State (1998) 3NWLR (pt. 72) 529, Onuoha vs. State (1988) 3NWLR (pt. 83) 460 Oforlete vs. The State (2000) 12NWLR (pt. 681) 415. It is also the statement of the law that a Court is also enjoined from the evidence offered to consider any defense that arose therein.

The defense of self-defense is open only to an accused person who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous bodily harm. See Uwagboe vs. The State (2008) 12 NWLR (pt. 1102) 621. Not only did the appellant not raise the defense before the lower Court, but the totality of the evidence adduced did

not indicate that he was in any way a victim of any unprovoked attack. By his own testimony, appellant stated that he went there to separate a fight and when he got wounded, he ran to a clinic for treatment. The defense therefore is not available to him. In any case, appellant did not admit that he killed the deceased in self defense, therefore the defence does not even arise.

Having therefore resolved that there was ample evidence in support of the charge against the appellant, I fail to be convinced to interfere with the judgment of the lower Court convicting the appellant of murder and conspiracy. Consequently, I see no merit in the appeal and it is hereby dismissed by me. The judgment of the lower Court delivered on the 29th of October 2012, convicting the appellant of murder and sentencing him to death by hanging is hereby affirmed.

Appeal dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Hamma Akawu Barka, JCA I agree with the reasoning and conclusion and I also dismiss the appeal

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment

just delivered by my learned brother, Hamma A. Barka, JCA.

The reasons and conclusion reached in dismissing the appeal are in accord with mine. I adopt them as mine and accordingly dismiss the unmeritorious appeal. The judgment of the lower Court is hereby affirmed.

Appearances:

Chinwe Godwin Omoaka Esq. For Appellant(s)

Okoi Ukam Esq. (MOJ), Cross River State For Respondent(s)