AKPAN v. STATE (2021)

AKPAN v. STATE

(2021)LCN/15047(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/404C/2018

RATIO

DUTY OF THE PROSECUTION TO ESTABLISH A CAUSAL LINK BETWEEN THE DEATH RESULTING FROM THE ACT OF A PERSON IN A MURDER TRIAL

In every case where it is alleged that death has resulted from the act of a person, the causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence. See OFORLETE v. STATE (2000) 12 NWLR (Pt. 631) 415 SC; OCHE v. STATE (2007) 5 NWLR (Pt. 1027) 214 CA. Put in another way, in a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is the possibility that the deceased died from other causes than the act of the accused, the prosecution has not established the case against the accused. See AUDU v. STATE (2003) 7 NWLR (Pt. 820) 516; UGURU v. STATE (2002) 9 NWLR (Pt. 771) 90 SC; R. v. OWE (1961) 2 SCNLR 354; R. v. NWOKOCHA (1949) 12 WACA 453. PER MOJEED ADEKUNLE OWOADE, J.C.A.

CONDITIONS FOR THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

A confession to be admitted as such must be direct, positive and unequivocal, even if it was later retracted by the accused during trial. See OZAKI v. THE STATE (1996) 3 SCNJ 12. In AFOLABI v. COP (1961) ALL NLR 654, the accused was the storekeeper to a company in Ibadan when a shortage was discovered in his store and was brought to his notice by the manager of the company. He confessed to the manager that he had taken some of the items from the store and sold them to assist in defraying some of his election expenses but did not indicate how many he sold. The Court held that as the alleged confession was neither direct nor positive as to the items contained in the charges, it was not admissible. See also PATRICK NJOVENS & ORS. v. THE STATE (1973) 5 SC 71. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

IDARA SUNDAY AKPAN APPELANT(S)

And

THE STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Akwa Ibom Sate of Nigeria, sitting at Itu Judicial Division in Suit No. HIT/18C/2015 delivered by Hon. Justice Edem Akpan on the 7th day of November, 2016.

The Appellant, Idara Sunday Akpan was charged along with one Effiong Sunday Akpan on a two count charge of conspiracy and murder while a third accused Ubon Sunday Akpan was charged with the offence of Assault occasioning harm.

At the end of the trial, the learned trial judge acquitted the 2nd and the 3rd accused persons on the charges against them but convicted the Appellant for the offences of conspiracy and murder as charged.

At pages 116-117 of the record of appeal, just before the conclusion of his judgment in the case, the learned trial judge held as follows:
I am satisfied by the evidence of the prosecution witnesses that the 1st accused person, who visited the house of the PW1 to attack the deceased in company of others caused the death of the deceased. The 1st accused person has equally admitted the offence in his

statement to the police, which is Exhibit “1” in the proceeding of the case. Though the 1st accused person attempted, but unsuccessfully, to put up the defence of alibi, it is already established by evidence of surrounding circumstances that the 1st accused person in company of his gang of killers is directly responsible for the death of the deceased….

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal in this Court on 7/4/2017.
Appellant’s brief of argument which was filed on 5/12/2018 was deemed filed on 7/5/2020. It is settled by Chief Victor Iyanam.
Respondent’s brief of Argument was filed on 4/6/2020. It is settled by Joseph Umoren, Esq. DPP Akwa Ibom State.

Learned counsel for the Appellant nominated two (2) issues for determination of the appeal. They are:
1. Whether the failure of the Prosecution to tender or rely on a Medical Report and the testimony of a Medical Examiner was not fatal to its case in the circumstance. (Ground 2).
2. Whether the learned trial judge was not in error in assuming that the purported Statement of the

Appellant/Accused person to the Police was a confessional statement and whether the assumption as aforesaid did not occasion a miscarriage of justice. (Grounds 1,3 & 5).

Learned counsel for the Respondent similarly nominated two (2) issues for determination of the appeal. They are:
a. Whether or not the trial Court was right in the circumstance of this case to infer the cause of death of the deceased in the absence of a medical report or testimony of a medical examiner (Ground 2).
b. Whether the learned trial judge was right in convicting the Appellant/Accused on the basis of his confessional statement (Grounds 1, 3 & 5).

On Issue No. 1, learned counsel for the Appellant submitted that from the evidence, the deceased was assaulted, if any, on the 11th August, 2014. He died on the 10th October, 2014 and was buried on the same day without an Autopsy Examination or Report. That under cross examination as recorded on page 91 of the record, PW1 narrated thus:
My son was walking with his two legs while the other person and I were supporting him to the Palace. But he was still bleeding very profusely. The person that supported my son

to the palace is by name Udo Adighida. My son told the Village Head the exact story that led to the attack; he narrated the story very accurately to the Village Head. The incident took place on the 11th August 2014, while my son died on the 10th October, 2014. The Police had visited the scene for the 1st time in October, 2014.

Appellant’s counsel submitted further that the Police IPO (PW3) in his evidence on pages 97-99 of the record said:
On 31st May, 2015, the 1st Accused person was arrested to the station and I charged and recorded his statement in English Language and interpreted in Ibibio Language to him and he signed as being correct. At the end of the investigation, the Accused person was charged for murder. What I discovered from the statement of 1st Accused person was that he took about 5 boys in his tricycle to the house and premises of PW1, where late Ini Friday Gregory was beaten up with sticks and he sustained injuries on his hand and shoulder and he died after 5 months….

PW3, said counsel, went further under cross examination:
I had not discovered or recovered anything at the scene of crime when I visited there.

But my investigation had revealed Iniobong Friday Gregory had actually died. And the deceased had also been buried. And I had visited the grave shown to me by PW1…. I had neither seen the corpse of the deceased nor the picture of the corpse…
No post mortem examination had been conducted on the corpse of the deceased. I had been told by the PW1 that the deceased had gone to the hospital on his own…

Learned counsel for the Appellant submitted that the so-called investigation by PW3, IPO consisted only in taking statements of the Appellant on page 24 of the record but particularly at page 27 would reveal:
…He (deceased) died because of the goat he collected and ate without allowing any senior person in the family to be there during the marriage of his sister Nwa Friday Gregory.

He submitted that this piece of evidence was obviously not investigated by the Police. If the Police had investigated this piece of evidence, however ridiculous it may seem, the doubt created by the unresolved question of what the real truth about what killed the deceased would most certainly have been laid to rest.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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A few questions, said counsel continue to haunt the prosecution of this case in the Court below and ought to eventually, in all good conscience lead to the acquittal of the Appellant in this Court. They are:
a. How and where did the deceased eventually die, given that he did not die instantly after the purported assault but after an unverifiable period of about 3-5 months?
b. The nature of the assault described as being beaten with sticks; the size and nature of sticks involved, whether could be ignored in arriving at a decision without an autopsy report?
c. The nature of injuries, if any, and whether consistent with injuries caused by sticks;
d. Whether the cause of death was natural;
e. Whether PW1 had something to hide in hurriedly burying the deceased without Police clearance or Warrant to bury.
f. Whether it was not important to know the condition of the corpse given the assertion by the Appellant, in his statement that the deceased died from poisoning?

Appellant’s counsel reasoned that we ought to hold the prosecution to some higher standard especially where the sentence of death was in contemplation.

He submitted that the cause of death is a question of fact to be established by medical evidence and where for instance there is no eye witness to the act of killing, medical evidence of the cause of death would be vital for the case of the prosecution. He referred to the cases of THE STATE v. NATHANIEL OKPALA (2012) 6 NSCR 11 per Ngwuta JSC; OCHIBA v. THE STATE (2010) LPELR – 9002 (CA); EGHAREVBA v. THE STATE (2016) LPELR – 40029 (SC); GALADIMA v. THE STATE (2017) LPELR – 41909 (SC); AKPAN v. THE STATE (1994) LPELR 382 (SC).

He submitted that in the present appeal, where it is evident that the Court below had no medical report to rely upon inspite of the fact that the deceased died months after the alleged assault, it is bewildering to imagine a judgment sentencing the Appellant to death, without clear medical reasons linking the Appellant with the death of the deceased.

Appellant’s counsel further asked:
How did the deceased finally die? Was the manner of death consistent with the original injuries, if any? The original injuries, if any: How did he survive those injuries in the preceding months? Could those injuries have

healed and he then died of something totally unrelated? In order to secure conviction, was it too much burden for the State to exhume the body and do a thorough autopsy to resolve the issues?

He concluded on Issue No. 1 that it is beyond dispute that, as despicable and condemnable as the offence of murder is, it would remain just as dreadful and appalling for the state to kill an innocent accused person on doubtful, suspicious and legally untenable grounds. He urged us to resolve the issue in favour of the Appellant.

On Issue No. 1, learned counsel for the Respondent referred to the evidence of PW1, (the mother of the deceased) at pages 90-91 of the record of appeal. First, that:
…. the 1st accused person brought blood drinking group who came with guns, machete, and offensive weapons to cut my son into pieces and killed him. When they cut my son with the machete, I took him to the village head’s palace while the assailants had escaped….

Secondly, at page 91 of the records that:
….. my son was stabbed and battered in such a way that he could not stand on his own …. The people stabbed my son from the

head and several part of the body and he bled very profusely … the hospital could not stop the bleeding, so the nurses advised me to take him away ….. my son died …

Respondent’s counsel submitted that there is no evidence before the Court to show that the deceased recovered from the maiming or the attack by the Appellant. The circumstances surrounding the attack of the deceased by the Appellant is enough to show the guilt of the Appellant for the murder of the deceased.

Counsel reproduced the provision of Section 323 of the Criminal Code, Cap. 38. Vol. 2 Laws of Akwa Ibom State of Nigeria, 2000 and submitted that it is obvious that the Appellant did not only intend to cause grievous harm or endanger the life of the deceased but indeed caused the grievous harm as admitted in Exhibit 1.

He added that if not death, what more could be left of someone who was assaulted by the Appellant and his mobilized 5 men with lethal weapons, sticks, machete and iron plank to a point that the deceased bled such that he was rejected at the hospital due to excessive bleeding and could not walk.

He referred to the cases of

ABBAS MUHAMMAD v. THE STATE (2017) LPELR – 42098 (SC); ALI v. STATE (2015) LPELR – 24711; BEN v. STATE (2006) 16 NWLR (Pt. 1006) 582 to say that where cause of death is obvious, it is not a vital component of proof, to have medical evidence to establish it.

He also referred to the provision of Section 321 (1) of the Criminal Code Cap. 38 that a person is only not deemed to have killed another “if the death of that other person does not take place within a year and a day of the cause of death”.

Learned counsel for the Respondent referred to legion of cases to demonstrate that the Court does not need medical point of view to infer the cause of death and or that though desirable, where medical evidence is lacking, the Court is perfectly entitled to infer the cause of death from the circumstances. The cases referred to are UYO v. AG, BENDEL STATE (1986) LPELR – 3452 (SC); R. v. EFFANGA (1969) 1 ALL NLR 339; OGBA v. STATE (1992) LPELR – 2273 (SC); AIGUOREGHIAN & ANOR v. THE STATE 17 NSQR 442 @ 487; ANYASODOR v. STATE (2018) LPELR – 43720 (SC).

He added that it is only where the deceased died a year and a day

after the attack by the accused that there can be said to be a break in the chain of causation. He referred to OCHI v. STATE (2018) LPELR – 45064 CA.

Learned counsel for the Respondent concluded Issue No. 1 by saying that it was left for the Appellant to prove the allegation made in his confessional statement that the deceased died by “eating a goat….”. He referred to the provision of Section 131 (1) of the Evidence Act 2011 and said there was no evidence of break in causation as to the cause of death of the deceased.

Appellant’s Issue No. 1 throws up the factual context or the real possibilities of the trite position of the law that though medical evidence is desirable in ascertaining the cause of death, it is not a sine qua non.
By way of example, the decision of the Supreme Court per Onu JSC, (of blessed memory) in the case of ANYASODOR v. STATE (2018) LPELR – 43720 (SC) restated the general principle of law that where medical evidence is lacking, the Court would still be perfectly entitled to infer cause of death from the circumstances. In that case, Onu JSC, gave a vivid and appropriate description of

when cause of death could be inferred “….. where a man is struck with a lethal weapon, he falls down there and dies, it does not require medical evidence to say that the cause of death is the wounds inflicted with the lethal weapon…An eye witness who sees the attack can give such evidence, the Court can infer the cause of death (pp. 44-45).”
The situation in the instant case is quite different from the above example, the deceased here was attacked on 11th August, 2014 but died on 10th October 2014. He (deceased) here did not die on the spot or even few hours or few days thereafter. The need for medical evidence to speak to the cause of death in the instant case is not just for an expert opinion to confirm the cause of death, but perhaps more importantly is to remove doubt that in the process of nursing the wound or treatment, there is no novus actus interveniens.
There are two reasons for this. The first, as a matter of criminal law, the law of Homicide, is to be sure that it was the act of the accused person that solely and eventually caused the death of the deceased. In a trial for murder, the act of the accused person must

be proved to have caused the death of the deceased.
The second reason, is as a matter of evidence, since the prosecution to succeed must prove its case beyond reasonable doubt, doubts of any kind must indeed be eliminated to assure the judex that prosecution’s case succeeds.
Clearly, the facts and circumstances of this case necessitates an Autopsy report and medical evidence to ascertain that the deceased died of the same assault that was inflicted on him by the Appellant and his cohorts on 11th August, 2014.
Apart from the case of ANYASODOR v. STATE (supra), another case cited by the learned counsel for the Respondent which again is not necessarily in his favour is the decision of the Supreme Court in UYO v. A.G. BENDEL STATE (1986) LPELR – 3452 (SC). In that case, the Court stated three principles to guide in inferring the cause of death thus:
1. The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened.
2. To establish a charge of murder or manslaughter, it must be proved that not merely that the act of the accused could have

caused the death of the deceased but that it did.
3. The important consideration for determining responsibility is whether the death of the deceased was caused by the injuries he sustained through the act of the accused and not whether from the medical point of view of death was caused by such injuries. R. v. EFANGA (1969) 1 ALL NLR 339…..
The third head above reiterates the trite principle that medical evidence is desirable but not a condition precedent to establishing the cause of death. However, applying the first head to the instant case which is the proximate cause of death – the causa sua in this case? The answer to that question will necessarily create a doubt as to the real cause of death of the deceased and ultimately whether the Appellant can bear legal responsibility for the death of the deceased. Here, I used the word “legal responsibility” deliberately to be distinguished from “moral responsibility” or perhaps suspicion as to the cause of death in this case.
The decision on Appellant’s Issue No. 1 boils down to the fact that the inability to ascertain the cause of death of the deceased

casts a doubt in the case of the prosecution.
In every case where it is alleged that death has resulted from the act of a person, the causal link between the death and the act must be established and proved beyond reasonable doubt.
The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence. See OFORLETE v. STATE (2000) 12 NWLR (Pt. 631) 415 SC; OCHE v. STATE (2007) 5 NWLR (Pt. 1027) 214 CA.
Put in another way, in a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased but that it actually did. If there is the possibility that the deceased died from other causes than the act of the accused, the prosecution has not established the case against the accused. See AUDU v. STATE (2003)

7 NWLR (Pt. 820) 516; UGURU v. STATE (2002) 9 NWLR (Pt. 771) 90 SC; R. v. OWE (1961) 2 SCNLR 354; R. v. NWOKOCHA (1949) 12 WACA 453.
In the instant case, the failure of the prosecution to tender medical report to ascertain the cause of death was fatal to its case in the circumstance.
Issue No. 1 is resolved in favour of the Appellant.

On Issue No. 2, learned counsel for the Appellant noted that the judgment of the learned trial judge was anchored almost exclusively on the Appellant’s confessional statement. This he said is profusely reflected on pages 115, 116 and 117 of the record where the learned trial judge made the following remarks:

First, at page 115 of the record that:
…. At most, the evidence of the 1st accused person can be properly described as a belated defence of alibi. This is so because the 1st accused person in his extra-judicial statement made to the Police on the 31st May, 2015 which was admitted in evidence as Exhibit 1, the 1st accused person admitted the offence…. (Page 115 line 28).

That, again on page 116 of the records, the learned trial judge said:

….. if there is any element of truth in his story, the 1st accused could have told the Police in Exhibit 1 that was admitted without objection.

Finally, but critically said counsel, the trial judge at page 116 said thus:
….. the 1st accused person has equally admitted the offence in his statement to the Police, which is Exhibit 1 in the proceeding of the case ….

Learned counsel for the Appellant submitted that the basis for the conclusions reached by His Lordship do not exist and are at best supportive of the Appellant’s appeal.
He reproduced the statement of the appellant on page 27 of the record and wondered how the Appellant’s admission and his denial of killing the deceased amount to a confessional statement in a charge of murder.

Clearly, said counsel, the learned trial judge proceeded on the basis of an erroneous notion of confession and relied on the principles governing a confessional statement. This, he said, was a clear misapprehension of the facts and the relevant law. The result, said counsel, is a miscarriage of justice and a perverse judgment.

Appellant’s counsel while urging us to interfere by setting

aside the judgment of the trial Court submitted that the learned trial judge ought to have adopted a procedure espoused in several cases especially in the case of TAKIDA v. STATE (1969) 1 ALL NLR 270 @ 273-274 that:
No Court is bound to speculate on what possible defences can be open to a person accused before it but where in a trial for homicide, the evidence suggests a line of defence, it is the duty of the Court to consider and deal with that defence whether or not the accused or his counsel expressly raised that defence by the legal terminology ascribed to it by lawyers.

He submitted that the case of TAKIDA v. STATE (supra) was later followed by the Supreme Court per Oguntade JSC, in ABUBAKAR DAN SHALLA v. THE STATE (2008) 10 NSCR 282 @ 303.

He concluded on Issue No. 2 referring to Rhodes – Vivour JSC, in the case of OWHORUKE v. COP (2015) LPELR – 24820 (SC) @ pp. 22-23 that in the interest of justice, the Courts can no longer afford to overlook the atrocities committed in the process of obtaining confessions from suspects.
He urged us to resolve the issue in favour of the Appellant.

Learned counsel for the Respondent

reproduced the provision of Section 28 of the Evidence Act and stated that a confessional statement is not only so because an accused person has admitted an offence but that the statement is also confessional when it makes suggestions which the Court can infer the commission of the offence.

Respondent’s counsel reasoned that Appellant’s Exhibit 1 suggested the commission of murder in line with the definition under Section 323 (1) (b) (c) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000.
He submitted rather ironically relying on the case of AJAYI v. STATE (2014) NWLR (Pt. 1426) page 1 that there is no stronger evidence that an accused person’s direct, positive and unequivocal confessional statement on which alone an accused can be convicted.

The Appellant’s confessional statement Exhibit 1 is reproduced as follows:
When we met him, I asked him to return the N10,000 I gave him or he give me back the motorcycle. When he refused, I started beating and we fought. The people and went there with removed stick from my tricycle and beat him as well while others were using hand and inflicted blows on

Ini Friday Gregory. The said Ini Friday Gregory was wound (sic) on his hand and shoulder. After beating him and inflicting injuries on him, I took the boys and went away. After 5 months, the said Ini Friday Gregory died. He did not die because of the beating we beat him. He died because of the goat he collected and ate without allowing any senior person in the family to be there during the marriage of his sister, Nwa Friday Gregory.

Appellant’s Exhibit 1 does not qualify as a confessional statement for the offence of murder. Exhibit 1 is not an admission to the offence of murder. It does not also suggest the inference that the Appellant committed the offence of murder by the expressions used in Section 28 of the Evidence Act, 2011.
My above observation explains why the learned trial judge in his judgment kept on using the phrase “accused confessed to the offence” not being able to specifically say that the “accused confessed to the offence of murder”.
The truth as acknowledged in the brief of Argument of the learned counsel for the Respondent is that a confession must be direct, positive and unequivocal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Exhibit 1 does not possess any of the attributes of being direct, positive or unequivocal to be acted upon as a confessional statement to the offence of murder. There is no admission or suggestion of the Appellant having killed the deceased in Exhibit 1.
A confession to be admitted as such must be direct, positive and unequivocal, even if it was later retracted by the accused during trial. See OZAKI v. THE STATE (1996) 3 SCNJ 12. In AFOLABI v. COP (1961) ALL NLR 654, the accused was the storekeeper to a company in Ibadan when a shortage was discovered in his store and was brought to his notice by the manager of the company. He confessed to the manager that he had taken some of the items from the store and sold them to assist in defraying some of his election expenses but did not indicate how many he sold.
The Court held that as the alleged confession was neither direct nor positive as to the items contained in the charges, it was not admissible. See also PATRICK NJOVENS & ORS. v. THE STATE (1973) 5 SC 71.
In the instant case, Appellant’s Exhibit 1 is not direct, positive and unequivocal as to be admitted as a confessional statement

for the offence of murder.
Issue No. 2 is also resolved in favour of the Appellant.

Having resolved the two issues in this appeal in favour of the Appellant, the appeal of the Appellant in relation to the offence of murder is meritorious and it is allowed. However, by a combination of the provisions of Section 15 of the Court of Appeal Act, Cap. C36 LFN 2004, and Section 178 of the Criminal Procedure Law Cap. 39 Laws of Akwa Ibom State of Nigeria, and having found from the evidence as proved on record that the Appellant is guilty of the lesser offence of Assault occasioning harm, I hereby convict the Appellant of the lesser offence of Assault occasioning harm under the provision of Section 364 of the Criminal Code Cap. 38 Laws of Akwa Ibom State of Nigeria.

The Appellant Idara Sunday Akpan is hereby sentenced to imprisonment for three (3) years under Section 364 of the Criminal Code Cap. 38 Laws of Akwa Ibom State. The sentence takes effect from 7th November, 2016, being the date of conviction of the Appellant in the Court below.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just

delivered by my learned brother, Mojeed Adekunle Owoade, JCA.

The Appellant as rightly pointed out by my learned brother did not confess to committing the offence of murder. There was other evidence to establish the offence of murder. The appeal against his conviction for murder is allowed by me. I also convict the Appellant for the lesser offence of assault occasioning harm contrary to Section 364 of the Criminal Cade Cap 38, Laws of Akwa Ibom State.
I abide by all other Orders in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Mojeed A. Owoade, JCA, and I agree with his reasoning and conclusion thereof. My lord has eloquently and decisively resolved all the issues canvassed in this appeal.
I too allow the appeal and abide by the order convicting the appellant for the lesser offence of assault occasioning harm.

Appearances:

CHIEF VICTOR IYANAM, ESQ. For Appellant(s)

JOSEPH UMOREN, Director, Public Prosecution (DPP) For the Respondent Ministry of Justice, Akwa Ibom State For Respondent(s)