SOLOMON AKPAN VS THE STATE
(1992) LCN/2513(SC)
In the Supreme Court of Nigeria
Friday, July 10, 1992
Case Number: SC.225/1989
RATIO
EVIDENCE – TAINTED WITNESS: WHO CAN BE CALLED A TAINTED WITNESS
“This court has considered this matter on several occasions and warned against the tendency to create special category of “tainted witnesses” vide Garba Mailayi & Ors. v. The State (1968) 1 All NLR 116 at 123. In Ishola v. The State (1978) 9/10 S.C. 81 at 100, it was held that this category must be confined to a witness “who is either an accomplice or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve. Also vide Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 and Adetola and Ors. v. The State (1992) 4 NWLR (Pt.235) 267 (273).”PER OMO, JSC.
EVIDENCE – CAUSE OF DEATH :WHAT WILL BE REQUIRED OF THE PROSECUTOR IN PROVING THE CAUSE OF DEATH IN A MURDER CASE
“As I said in Adetola and Ors. v. The State (supra) “In a case of homicide it is incumbent on the prosecution to prove cause of death, and it can do so either by direct evidence or circumstantial evidence that creates no room for doubt or speculation vide R. v. Oledinma (1940) 6 WACA 202: Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.17) 418 (426); Gabriel v. The State (1989) 5 NWLR (Pt.122) 457.”PER OMO, JSC.
APPEAL – BRIEF OF ARGUMENT:THE ATTITUDE OF THE COURT TOWARDS INELEGANTLY DRAFTED BRIEF
“…Where even the brief as a whole can be described as faulty, the attitude of this court to such a brief has been stated by Oputa, J.S.C. in Philip Obiora v. Paul Osele (1989) 1 NWLR, (Pt. 97) 279 300 as follows:- “A bad, faulty and or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective brief as no brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence.” PER OMO, JSC.
EVIDENCE- ADMISSIBILITY OF CONFESSIONAL STATMENT: WHETHER A CONFESSIONAL STATMENT BECOMES INADMISSIBLE MERELY BECAUSE IT WAS RETRACTED BY THE ACCUSED
“It is well settled that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by its maker. See Shittu v. State (1970) 1 All NLR 228; Queen v. Itule (1961) 1 All NLR 462; (1961) 2 SCNLR 183; Adamu v. A.G. Bendel State (1986) 2 NWLR (Pt.22) 284; Aremu v. State (1991) 7 NWLR (Pt.201) 1; Ejinima v. State (1991) 6 NWLR (Pt.200) 627. In this instant case the fact that appellant retracted in his evidence in Chief, the statement in “Exhibits D & E”, will not affect their admissibility. They remain admissible and binding.” PER KARIBI-WHYTE , JSC.
JUSTICES:
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
UCHE OMO Justice of The Supreme Court of Nigeria
EMMANUEL OBIOMA OGWUEGBU Justice of The Supreme Court of Nigeria
Between
SOLOMON THOMAS AKPAN Appellant(s)
AND
THE STATE Respondent(s)
U. OMO, J.S.C. (Delivering the Leading Judgment): The appellant here was charged in the High Court of Cross-River State with the murder of one Akpan Peter Udombang, an offence contrary to Section 319 (1) of the Criminal Code. After a trial in which the prosecution called ten witnesses and the appellant only testified in his defence, the learned trial Judge in a reserved judgment found the appellant guilty of murder as charged and sentenced him accordingly.
One appeal to the Court of Appeal, against his conviction and sentence, counsel on his behalf canvassed in his brief the validity of the conviction which he alleged was based on retracted statements of the appellant which were wrongly regarded as confessions, the evidence of tainted witnesses, and failure to prove the cause of death of the alleged victim. Briefs were duly filed by the parties and fully adopted without further expatiation by counsel for them in oral argument. In a majority judgment delivered on 7th March, 1989, the Court of Appeal held the appeal to be lacking in merit, dismissed same and affirmed the conviction and sentence of the trial High Court.
This appeal is against that decision of the Court of Appeal. Three issues were set out by the appellant for determination in his brief, as follows:-
“(i) Whether the Court of Appeal was right to have received argument presented before it by the Respondent in the Court of Appeal when such argument ran totally contrary to the issues formulated by the said Respondent for the determination of the court.
(ii) Was it proper for the Court of Appeal to have held that Exhibits D and E on which the trial court relied heavily for the conviction of the Appellant qualified as confessional statements while whatever P.W.2 reportedly heard from the deceased was a ‘Dying Declaration’ or ‘Res Gestae’
(iii) Was the Court of Appeal right to have affirmed the decision of the trial court when the case against the appellant was not proved according to law”
The respondent in its brief advanced the following three issues for determination:-
(i) Whether the issues in the Respondent’s Brief of Argument attracting adverse comments by the Honourable Justices of the Court of Appeal and reformulated by them rendered the Brief defective and thereby occasioned a miscarriage of justice.
(ii) Whether the Court of Appeal was right in affirming the trial Judge’s findings of the extra-judicial statements of the appellant.
(iii) Whether the Court of Appeal was right in upholding the findings of the learned trial Judge rejecting the defences of the appellant.
The first issues formulated by both sides address the same subject-matter and will be considered first. The complaint of the appellant is very clearly set out in paragraph 5.02 of his brief as follows:-
“The Court of Appeal seriously criticised the way and manner the said issues were set out since it gave the impression that the Respondent was concurring to the attack levelled on the high points in the judgment by the appellant in that appeal. The implication of the Respondent’s adoption of the issues for Determination as formulated by the appellant in that appeal was even brought out more succinctly in the minority judgment of Hon. Justice Macaulay at page I58 of the Records. There, the learned Justice of Appeal (like in the lead judgment) felt that the Respondent having agreed to be bound by the issues raised by the appellant virtually agreed and accepted all the shortcomings complained of in the judgment as argued by the appellant. It is the humble submission of the Appellant herein, that the Respondent in that Court should not have been allowed to present argument running counter to the import of the issues formulated by him. Any argument in the Respondent’s Brief of Argument not being in consonance with the issues formulated should have been struck out by the Court of Appeal.”
After expatiating further on this complaint by citing and considering some authorities on non-compliance with the rules relating to the filing of briefs (Order 6 Rule 3), making submissions on the effect of such non-compliance, the wrong formulation of issues and the consequences of a faulty brief, the appellant further complained in paragraph 5.05 as follows:-
“What was even more embarrassing was that the Court of Appeal in its lead judgment, having detected the defects in the issues formulated by the Respondent, went ahead, seriatim to formulate what should have been the correct issue in respect of each paragraph thereof. Without, His Lordship who wrote the lead judgment doing so, the Respondent’s Brief of Argument would have been most unintelligible and would have made no sense. It therefore, follows that His Lordship was only able to get the sense out of the brief by his correction of the issues as formulated without which it would have been otherwise. By rendering this assistance to the Respondent, as it were, there emerged a case of mistrial and a breach of the rule affair hearing.” (Italics mine)
The complaint here may be summarised briefly thus: that after a caustic criticism of the issues for determination set out by the respondent before it, which gave the impression that it agreed to be a resolution of the issues set out by the appellant in his favour, the Court of Appeal should have struck out respondent’s issues for determination, and refused to hear any arguments presented thereon. Instead of so doing the court below (per Uwaijo, J.C.A,) assisted the respondent by correcting and reformulating those issues in such a way as to make them intelligible, which action resulted in a mistrial and a breach of the rule of fair hearing.
There is no doubt that the respondents counsel was very wrong to have simplistically reproduced as respondent’s issues for determination the very same issues (word for word) formulated by the appellant. If counsel had bothered to read the issues with a modicum of intelligence he would have realised that if the thrust of the issues set out by the appellant may be described as set out in the negative (attacking-the findings/decision of the trial Judge) his own formulation should have been framed in the positive (supporting the very same findings/decision). My impression is that respondent’s counsel was mentally lazy when reading the appellants issues for determination; and decided to adopt them wholesale because the complaint addressed in those issues are the very same complaints which, in his view (and correctly so) the court below should consider in arriving at a decision on the appeal before it. For this simplistic and lazy attitude and consequently wrong formulation of respondent’s issues, counsel was appropriately criticised by the court below, which then proceeded to consider the proper issues before it. That should be the end of the matter but for the complaint now raised by the appellant.
One argument adduced in support of the complaint is that having found that the issues formulated by respondent were not “proper”, the court below should have struck them out, and then prevented the respondent from being heard on these issues on the ground that its brief is defective. What is involved here is not-a failure to formulate issues for determination which means there is no brief as prescribed by order 6 Rule 3 of the Court of Appeal Rules, but the formulation of wrong or defective issues arising in the appeal in an otherwise proper brief. Where even the brief as a whole can be described as faulty, the attitude of this court to such a brief has been stated by Oputa, J.S.C. in Philip Obiora v. Paul Osele (1989) 1 NWLR, (Pt. 97) 279 300 as follows:-
“A bad, faulty and or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective Brief as no brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence”
In this case it is only the issues set out that are alleged to be faulty and not the brief as such-. But are all the issues set out by the respondent “faulty” as appellant’s counsel is seeking to make out To decide this, it is necessary to reproduce here the issues for determination as set out in respondent’s brief. They are:
“1. Whether the learned trial Judge was right in basing his conviction of the appellant on Exhibits D and E which the police regarded as confessional statement when the appellant was not taken before a superior police officer as is required by the Judges, Rules.
(2) Whether the learned trial Judge was right when in basing conviction of the appellant on Exhibits D and E when both statements were inconsistent with the appellant’s testimony before the court.
(3) Whether the learned trial Judge was right when he based his conclusion of the guilt of the appellant on the evidence of tainted witnesses who had their own purpose to serve.
(4) Whether the learned trial Judge was right in convicting appellant for murder when the cause of death of the deceased had not been proved by the prosecution.”
A close look at these issues will show that whilst issues 1 and 2 could have been reformulated as indicated by the learned Justice of Appeal (Uwaifo. J.C.A.) in his judgment (see pages 134 to 135 of the record of proceedings), they are as set out equally appropriate to the case of the respondent as they are applicable to the case of the appellant. They are therefore NOT faulty. They also do not fall foul of the criticism that they suggest an acceptance of the appellant’s complaints in them by the respondent. Issues 3 and 4 are the faulty ones vis-a-vis the respondent. They complain that the evidence of witnesses called by the respondent are tainted and assert that the cause of death of the deceased has not been proved by the prosecution (respondent). I repeat the question: should these two have been struck out My firm answer is No, for two reasons. The first is that the argument in the brief in support of these issues show that the respondent is against and not in favour of the appellant’ submissions on them. It is therefore the form as opposed to the content substance) of the issues that are defective, and in its quest to do substantial justice this Court looks more favourably on the substance as opposed to the form on such matters.
The court below was therefore right not to have taken upon itself i.e. suo motu, to strike out the “faulty” issues, because there was no application by the appellant from the time the brief was filed up to the time of argument of the appeal, inviting the court to strike out appellant’s issues for determination on the ground that they are defective. But even if there was such an application, I take the view that the court below would be right to refuse same on the grounds indicated i.e. the need to do substantial justice. Secondly, it is trite that a “Court of Law does nothing in vain.
Since the issues for determination of the respondents are the same as those for the appellant, striking out the former will mean that the same issues will still be before the court for consideration since the appellant’s issues are not faulty. Once the appellant’s issues are not struck out, the court is bound to hear the appellant’s on these issues, and in exercise of its discretion can hear the respondents in oral argument on those grounds vide Order 6 Rule 9 (d) of the Court of Appeal (Amendment) Rules 1984.
The second argument is that the respondents formulation of issues means that it agrees with the complaints of the appellant. This is very superficial. Again, a look at the content of the arguments adduced in support of the issues shows the contrary. No one was therefore deceived, and the parties prosecuted the appeal in the basis of a clear understanding of the respective arguments canvassed. Appellant’s complaint is therefore belated and lacking in merit.
The third argument and the least in order of merit, is that the “re-formulation” of the respondent’s issues for determination by the court below (majority) was an assistance which led to a miscarriage of justice (mistrial and breach of the rule of fair hearing). There really was no re-formulation (i.e. amendment) exercise for the purpose of a consideration/determination of the arguments adduced, undertaken by the court below (per Uwaifo. J.C.A.). What the learned Justice of Appeal did was to “demonstrate” to the respondent’s counsel, how he would better have framed his issues, so as to make him realise his mistakes. He said as much when before embarking on the exercise he said ‘”Let me demonstrate what the respondent’s counsel failed to realise”. The court below did not thereafter proceed to determine the appeal on the bias of any re-formulated issues, because no such issues were in fact finally set out. The answer to the first issue raised in this appeal by the appellant is a qualified YES.
The second issue for determination as set out by the parties addresses the same subject-matters; to wit the propriety of the admission of
(a) Exhibits A and as confessional statements, and
(b) the evidence of P.W.2 (stating what he heard) as a “dying declaration” and “res gestae”.
I will consider these two aspects separately. The first submission on the first aspect here is that these two statements of the appellant are not “confessions” because it has not been established that he made them. Whilst the recorder of the statements and P.W.9- Sgt. Emmanuel Ali, said they were interpreted to him from Ibibio into English (in which he recorded), P.W 10 – P.C. Okon Asuquo, testified on oath in contradiction that he interpreted from Efik into English to enable P.W 9 record the statements in English. Furthermore, the appellant is on record as testifying in Ibibio which is said to be his native and only language. Because of these contradictions it is urged that it cannot be true that the appellant thumb-impressed the statement (Exhibit D) as true. Appellant it is further submitted was therefore right to have challenged the correctness of the statement, in his oral evidence in court. His denial that he never said in his statement that he inflicted matchet cuts on the deceased; his evidence under cross-examination that he objected to some portions of the statement as read by the police and that it was never interpreted to him before he thumb-printed same; should therefore be taken as correct. Finally, that such statement cannot be considered in any sense as voluntary, having been imposed on the appellant by force. In answer, respondent has submitted that the two statements are voluntary confessions. On the language of translation, respondent has further submitted that once the appellant understands Ibibio, he also understands Efik because there is no difference between the two dialects. Ex facie, this submission cannot be accepted as correct. There is nothing on record that says so. The circumstances of the recording of the statement and a closer examination of the documents may however show that this submission is correct, and/or that it is irrelevant for a decision as to whether either or both statements are confessional. The first point in answer to appellant’s submissions on this issue is that the voluntary nature of the statements cannot now be open to any question because (a) they were not challenged at the correct time when this sub-issue should have been canvassed i.e. when the statements were sought to be tendered vide Okaroh v. State (1988) 3 NWLR. (Pt 81) 214.
If they were made under duress or otherwise involuntary, objection must then be raised to their admission. (b) both exhibits were specifically adopted by the appellant as part of his defence. The appellant in his examination-in-chief, inter alia, stated thus
“I am adopting Exhibits D and E as part of my defence in this case.
Some of the contents of Exhibit E were not what I said”
Under cross-examination, he repeated
“Except these portions of Exhibits D and E which I did not make,
I adopt Exhibits D and E as part of my defence”
He never said that he did not make the whole of those statements. What is more, Exhibit E was tendered in evidence by defence counsel in the course of cross-examination of a prosecution witness. In view of these facts it is no longer even open to the appellant to say he did not understand whatever language was spoken to him in translation, be it Ibibio or Efik, A reading of Exhibit E also shows that what he denied saying is less than five percent of the whole statement. Appellant has further submitted that Exhibits D and E do not pass the other test of a confession, which is “to ascertain-as much as possible its truth or otherwise.” This test must seek any other “evidence be it slight, of circumstances which made it probable that the confession was true” vide Kanu and Ors. v. The King (1952) 14 WACA 30; Paul Onochie and 7 ors. v. The Republic (1966) NMLR 307. It is surprising to read the submission that neither the High Court nor the Court of Appeal made any effort to conduct this test. Both courts cited the cases of Godwin Ikpasa v. Attorney-General of Bendel State (1981) 9 Sc. 7 and R v. Sykes 8 CAR. 233. In the latter case the test is stated thus
“…………………………… confession can always be tested as examined, first by the police and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true Is it corroborated Are the statements made in it, of fact, so far as we can test them, true Was the prisoner a man who had the opportunity of committing the murder Is his confession possible Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us
The trial court found corroborating evidence in the testimony of P.W 2, who he said “gave me the impression that he was a truthful witness.” He also relied on the evidence of other prosecution witnesses as to matchet cuts found on the deceased, which evidence is consistent with the statement credited to the accused in Exhibit D; and if I may add, are inconsistent with appellants’ evidence given in his defence of accidental “chisel” wounds. The appellant also admitted encountering the deceased who was riding on a motor-cycle that day; that they struggled (or fought) and in the process some injury drawing blood was inflicted on the deceased. These and many other pieces of evidence satisfy the test in R v. Sykes. They corroborate Exhibits D and E and show beyond any doubt that he had the opportunity of committing the murder. They show that the confessions must be true.
I now come to the second aspect of Issue 2, i.e. the propriety of the admission of part of the evidence of P.W. 2 as “a dying declaration” and/or fanning part of the “res gestae”. Once the evidence of P.W 2 is believed then there is no doubt that what he heard the deceased exclaim: to wit.
“Father of my mother. Akpan Adiata Oba Ikpa is killing me” constitutes a dying declaration by the deceased, and is also part of the res gestae and admissible in evidence. What the appellant has done in paragraphs 5.15, 5.16, 5.17 and 5.18 of his brief, is to attempt to discredit that evidence. In doing this he has set out various portions of it and slanted same to try to show that the testimony cannot possibly be true. I do not intend to follow him on that fruitless exercise. It is enough for me to say that I am not persuaded by that exercise to disturb the concurrent findings of the two courts below believing the evidence of P.W2 as true, as his efforts do not constitute exceptional circumstances to justify my so doing vide Duyile v. Ogunbanjo & sons Ltd.(1988)7 NWLR (pt.72) 601; Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584 at 598 para. A. The relevant evidence of P.W 2 therefore constitutes both a dying declaration and part of the res gestae vide Sunday Akpan v. The State (1967) NMLR 185 The answer to the second issue as set out is therefore in the affirmative.
Under the third issue which is broadly stated, averring that the case against the appellant was not proved in law, the appellant has in his brief dealt with a motley of sub-issues. His first submission is to re-state that Exhibits D & E were wrongly held to be confessional statements and part of the evidence of P.W 2 also wrongly held to constitute a dying declaration and part of the res gestae. These have been considered earlier. Appellant proceeded to attack the swearing of the mbiam juju which he said was shown to have been based on a false allegation of armed robbery (that never was), and constituted a deliberate plan to implicate the appellant. It is indeed true that some of the witnesses had testified to being unaware that thieves had been visiting the town (and so to that extent the allegation may have been dubious), but the appellant did not succeed in his argument to show how this allegedly false allegation was a deliberate plan to implicate the appellant. Respondent’s counsel has countered, and I agree with, him, that however, false the story may be, the appellant by his own account and in compliance with the dictates of custom, had agreed to swear to the mbiam juju, and had gone to get money to enable him to pay to do so, before the tragic event took place. Appellant has further submitted that he is entitled to the defence of self-defence on the ground that the villagers were chasing him to lynch him and that his life was in great danger. The evil motive of the chase was in itself sufficient provocation. The learned trial Judge considered this defence on the basis of his findings on the evidence led and held that it has “no legs to stand on” and has “collapsed”. Respondents counsel has submitted that the concept of a mob attack is entirely false. Not only the villagers, but also the police, were interested only in arresting and questioning the appellant. As revealed by the evidence, a policeman was in fact at the back of the motorcycle riden by one of the prosecution witnesses, so as to effect a quick arrest. What is more at the point when the appellant wielded his matchet on the deceased, all he got from him were slaps to his cheek. I agree with the learned trial Judge that the evidence led, as believed by him, did not make available to the appellant the defence of self-defence. The mob-lynching story is obviously a non-starter. In any event, when the deceased met the appellant it was a one-to-one affair between them. There was no reasonable apprehension of death or grievous harm to justify inflicting matchet cuts in “self-defence”. His being chased offered no provocation but, even if it did, the retaliation was unwarranted and disproportionate to the provocation alleged offered. Appellant has again repeated his submission that the prosecution witnesses were tainted witnesses, and so their evidence was wrongly relied on. This submission was made in the court below where that court considered it in some detail and came to the conclusion that the prosecution witnesses could not be described as tainted witnesses. This court has considered this matter on several occasions and warned against the tendency to create special category of “tainted witnesses” vide Garba Mailayi & Ors. v. The State (1968) 1 All NLR 116 at 123. In Ishola v. The State (1978) 9/10 S.C. 81 at 100. it was held that this category must be confined to a witness “who is either an accomplice or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve” (Note: Italics mine to replace sub-quotations).
Also vide Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 and Adetola and Ors. v. The State (1992) 4 NWLR (Pt.235) 267 (273). The prosecution witnesses were clearly not accomplices, or can it be said they had their own purpose to serve by testifying the way they did. The only purpose they appear to have is that of seeing that the facts of the events are given and justice done. The appellant has alleged that because the deceased died in P.W.2’s parlour it was in his interest to clear himself of any suspicion that would be cast on him. To do this, it is impliedly suggested, he gave false evidence against the appellant. Apart from this suggestion being contrary to the findings of the two courts below, it seems at best a very farfetched proposition, which I find incapable of belief. P.W.8 is said to have another interest of his own to serve i.e. to testify against the appellant so as “to exculpate himself from any entanglements in the offence the appellant was facing”, because appellant had mentioned him as the person who asked him to kill the deceased. If he had hired appellant to kill the deceased, why would he be the very one to raise a false alarm about the visit to his house of armed robbers at night, a false story designed it has been suggested by the appellant in his brief solely for the purpose of implicating the applicant in the murder of the deceased Furthermore, he denied hiring “the deceased to kill the accused and or vice-versa” and was one of those who testified that money was paid for the swearing of the Mbiam juju on the fateful day, a piece of evidence supporting the testimony of the appellant. There is therefore no substance in this submission. Finally, the appellant dealt with the non production of the medical report issued in this case, so as to believe appellant’s story that all that appellant inflicted on the deceased is a chisel wound. Here again, this sub-issue was canvassed in the two courts below, which found against the appellant. Regrettable as it is that medical evidence and/or medical report was not tendered by the prosecution. It was here not a pre-requisite for establishing the cause of death. As I said in Adetola and Ors. v. The State (supra)
“In a case of homicide it is incumbent on the prosecution to prove cause of death, and it can do so either by direct evidence or circumstantial evidence that creates no room for doubt or speculation vide R. v. Oledinma (1940) 6 WACA 202: Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.17) 418 (426); Gabriel v. The State (1989) 5 NWLR (Pt.122) 457”
In that case, as in this, there is ample direct evidence of the nature of wounds inflicted, on the believed evidence, by the appellant, which ended with collapse and death of the deceased in the house (sitting room) of P.W.2. As to the submission that the learned trial Judge should have visited the locus in quo so as to ascertain whether P.W.2 was able to hear and see what he testified to, there is no ground of appeal covering this submission, which therefore cannot be entertained. Suffice it to say in addition, that neither party invited the court to conduct such a visit. That disposes of the third issue, the answer to which is therefore that the case against the appellant was proved according to law.
All the issues canvassed having been decided against the appellant, this appeal must be and is hereby dismissed. The judgment of the court below is also hereby affirmed.
A. G. KARIBI-WHYTE, J.S.C.: On the 7th March, 1989, the Enugu Division of the Court of Appeal dismissed the appeal of the appellants against his conviction for murder. This is an appeal against that judgment.
On the 26th September, 1983 Nkop J sitting at Uyo of the then Cross Rivers State High Court and now Akwa Ibom State, convicted appellant on a charge of murder contrary to section 316 and punishable under section 319 of the Criminal Code, and sentenced him to death. The relevant facts of the case are that on the 3rd November, 1980, one Sunday Mbang, who is P.W.8 in the prosecution of the charge against the accused, summoned his fellow villagers of Odot No.1 in Nsit Atai Local Government of Akwa Ibom State, in the traditional fashion that he had been attacked the previous night by armed robbers. All the villagers, including the village head Chief Asuquo Udo (P.W.4) responded and assembled at the village square to be briefed. The villagers were not satisfied with the story of P.W.8. They doubted him. However P.W.8 insisted that he would want all the villagers to take the known “Mbiam” Oath to clear themselves of any suspicion of accusation of either being armed robbers or collaborators. Everyone agreed. Appellant and one Sunday Okon Essien did not. Sunday Okon Essien subsequently on second thought agreed and took the oath. Appellant remained obstinate and did not swear to the oath. His excuse made on evidence at his trial was that he did not have the N5 payable before taking the oath; and that he then left the villagers at the village square and went to tap palm wine for delivery to his customers.
The villagers reported appellant to the Police as a suspect who refused to take the “Mbiam” oath. Following this report, a Police Officer P.W.6 and the deceased went in search of the appellant. Although appellant was not found in his house. His wife and son were taken to the village square probably as hostages. It was when they were all at the village square that appellant was spotted at a distance. Immediately on seeing the appellant, the deceased and the Police Officer P.W.6 all on their motor cycles following different directions, gave chase to apprehend the appellant. The villagers followed on foot.
About 10 minutes into the pursuit, by P.W.6 and the deceased, P.W.1 said he heard a distress alarm. They all ran towards the scene of the alarm. P.W.1 said that he saw the corpse of the deceased lying on the floor of Robert Akpan’s sitting room. Robert Akpan testified as P.W.2. Robert Akpan on seeing the deceased rushed into his sitting room raised alarm that appellant had killed Akpan Peter, the deceased. The Police rushed towards the direction of the alarm. The police saw P.W.2 and asked him about the whereabout of the deceased. P.W.2 replied that deceased was in his house. P.W.6 rushed to the house of P.W.2 and saw the deceased lying face downwards and dead on the floor of the parlour of P.W.2 in a pool of his own blood.
There were several matchet wounds all over the body of the deceased. The left hand of the deceased was almost severed from the rest of the body. The cut on the head extended to the jaw. P.W.5 testified that he saw the two fingers of a human being most probably of the deceased, lying on the ground at the scene. The body of the deceased was taken to Ituk Mbang General Hospital, where a post mortem examination was conducted by Dr. E.N. Akpan, who also issued the medical report.
The P.W.6 on finding the body of the deceased blew his whistle and the rest of the villagers came to the scene. He then went to bring Police reinforcement. A search was organised for the appellant, but neither himself nor the matcher he used was found. Appellant was at large till he was found at Okoba Market and handed over to the Police on the 23rd December, 1980. Appellant was taken to and held in custody at the Uyo Police Station.
At the Uyo Police Station, appellant made two statements which were tendered in evidence as Exhibits “D” and “E”. At his trial, he denied certain portions of Exhibits ‘D’ and ‘E”. At his trial, the Prosecution did not call Dr. E.N. Akpan who conducted the post mortem examination and issued the report. They also did not call as a witness PC Odu Tokon, who recorded Exhibit ‘E’. Appellant gave evidence on oath on his own behalf. He did not call any witness. Appellant was found guilty as charged, convicted and sentenced to death. As I have already indicated, his appeal to the Court of Appeal was dismissed.
At the High Court, the learned trial Judge believed the evidence of P.W.2, Robert Akpan, into whose house the deceased ran following the matchet cuts and where he died. He also held that what P.W.2 heard the deceased say about appellant in the circumstances when he was dying amounted to a dying declaration. It was held that the combined effect of dying declaration and the evidence of PW.2 confirmed the truth of the allegation that the deceased met his death at the hands of appellant.
The learned trial Judge also held that appellant made Exhibits D and E and that they were confessional statements. His retraction of portions of them did not affect their admissibility. The learned trial Judge believed the account of P.Ws.1, 2, 3, 4, 5 and 6 as to the nature of the injuries inflicted on the deceased. The defences of provocation and self-defence raised were rejected.
The Court of Appeal affirmed the finding and conclusion of the learned trial Judge.
Appellant has on his notice of appeal dated 10th October, 1990, filed five grounds in this Court. These grounds of appeal relate to complaints against
(1) inadmissibility of the evidence adduced by the prosecution witnesses at the trial
(2) consideration of the confessions and dying declaration or res-gestae
(3) inadequate consideration of the defences of provocation and self-defence
(4) Proof of the cause of death
(5) Consideration of arguments contrary to the issues for determination formulated.
Learned counsel to the appellant has formulated three issues for determination in this appeal. Respondent’s counsel had adopted the same issues. They are as follows:-
“(i) whether the Court of Appeal was right to have received argument presented before it by the Respondent in the Court of Appeal when such argument ran totally contrary to the issues formulated by the said Respondent for the determination of the Court.
(ii) was it proper for the Court of Appeal to have held that Exhibits D and E on which the trial court relied heavily for the conviction of the appellant qualified as confessional statement while whatever P.W.2 reportedly heard from the deceased was a ‘Dying Declaration’ or ‘Res Gestae’
(iii) was the Court of Appeal right to have affirmed the decision of the trial court when the case against the appellant was not proved according to law”
I shall briefly dispose off the first issue which in my opinion need not delay us in the consideration of this appeal. Mr. Okonkwo, learned counsel to the appellant’s submission is that since the formulation of the issues for determination by the respondent is contrary to submissions of counsel to the respondent, the Court of Appeal should not have allowed counsel to present arguments inconsistent with the issues formulated.
The argument of the respondent should have been struck out. The kernel of the submission is that where an appellant or respondent formulates issues for determination which raise no issues in view of the grounds of complaint that can be canvassed on appeal and has not complied with the rules of court governing filing of briefs, such brief should be struck out. – See Onifade v. Alhaji Olayiwola (1990) 7 NWLR (Pt.161) 130; (1990) 11 SCNJ.10 at p.22 Ori-ni-Owo & Anor. v. African Development Corp. (1991) 2 NWLR (Pt.171) 38. Concisely stated and in other words arguments in an appeal to be acceptable in support of the issues must be consistent with the issues so formulated. Learned counsel is therefore contending that the Respondent could not be said to have presented any argument in the circumstances of this appeal in the court below.
In his reply Mr. Akpan for the respondent submitted that the issue is the distinction between filing a bad and faulty brief and filing no brief at all. This, he argued, is the case of filing a bad and faulty brief. Learned counsel argued that it was not a mistrial, as submitted by appellant’s counsel for the Court to correct a faulty brief. The Court has a duty to comment on a faulty brief and thereafter to correct the formulation of the issues therein Ekpan & anor. v. Uyo & ors. (1986) 3 NWLR, (Pt.26) 63.
Mr. Akpan cited to us several cases in which this Court severely criticized the inadequacies in the briefs filed, but nevertheless went ahead to formulate the correct issues consistent with the grounds of appeal, and to determine the appeal on these issues. The cases relied upon are Niger Construction Co. of Nigeria Ltd. v. A.G. Kaduna State (1987) 2 NWLR (Pt.57) 381. Ketu v. Onikoro (1984) 10 S.C 265.
It seems to me Mr. Akpan is stricto sensu, not answering the submission of Mr. Okonkwo. Apart from the recognition that the brief of argument filed by respondents may be faulty, which is conceded, in this case Mr. Okonkwo’s grouse with the Court below is that it has received submissions not based on the issues for determination formulated in respondent’s brief. Accordingly no submission was before the Court – See Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130. It is not as Mr. Akpan contends that the inadequacies in a faulty brief could be properly corrected and the submissions on the issues formulated as corrected, accepted.
I do not consider it unusual. It is indeed common place, for respondent’s counsel to adopt the issues for determination as formulated by counsel to the appellant. Since the issues for determination arise from the grounds of appeal filed by the appellant and the alleged complaint is the error challenged, it is more likely that the issues for determination will be the same. But the respondent who will be seeking to support the judgment will be arguing the converse of the appellants case. Uwaifo. J.C.A. was quite right in his criticism of the learned counsel to respondent for considering the grounds of appeal as his issues for determination. The ground of appeal is clearly not the issue for determination. An issue may be contained in one ground of appeal or traverse a number of grounds, depending on the nature of the issue – See Bakare v. A.G. of the Federation (1990) 5 NWLR,(Pt. 152) 516.
I find it a little difficult to appreciate why Mr. Okonkwo thinks that the court cannot suo motu correct a wrongly formulated issue for determination. It seems to me that learned counsel would wish the error remain uncorrected, so that the opponent will take advantage of such error to the prejudice of the respondent. It seems to me here that the misconception stems from the fact that the issue which has to be formulated by the respondent from the grounds of appeal filed if based on the judgment appealed against, cannot be substantially different from what will be formulated by the appellant.
It is of fundamental importance in the administration of justice that the court should not allow its judicial role as an impartial and unbiased arbiter to be diverted to by the ineptitude of counsel. The Court has as its primary role the doing of justice between the parties before it. Judges are acknowledged repositories of the law. They owe it as their sublime duty to the parties and in the observance of their judicial oath to do justice to the parties before them. A Judge should therefore not sit unconcerned, watching where the ignorance, inadvertence or forgetfulness of counsel is likely to result in injustice. He is under obligation to correct the error leading to such injustice if this will not result in injustice to the opponent.
As Mr. Okonkwo rightly pointed out, the court was able to get the sense out of the brief by the correction of the issues as formulated. This is quite legitimate and a correct exercise of the judicial function. No injustice has resulted from this exercise. I find no merit in this criticism.
Appellant can only succeed on the force of the submission on the issues raised in his brief of argument. Such argument of the appellant is not strengthened by the fact that the respondent had filed a defective brief or no brief at all. The appeal is determined entirely on the issues raised in the grounds of appeal filed by the appellant. Accordingly even if the argument of the respondent went to none of the issues raised, the Court will still determine the appeal on the argument on the issues raised by the appellant. The irrelevance of the argument of counsel to the respondent will not strengthen or reinforce the weakness of the case of the appellant.
The second issue contains the questions of validity of consideration of appellant’s voluntary confession, and the dying declaration of the deceased as a factor in the determination of the cause of his death. These are two distinct issues governed by different principles and considerations which in my opinion ought to have been separated.
Mr. Okonkwo submitted that it was wrong for the learned trial Judge and the Court below to treat “Exhibits D and E” as confessional and the statement credited to the deceased by “P. W.2” as a dying declaration. In his submission appellant’s conviction was founded on the combination of these two factors. Learned counsel submitted that “Exhibits D and E” infringed all the accepted rules for the recording of the statements of accused persons. The statements were not recorded in the Ibibio language in which it was allegedly made. The statement was recorded by P.W.9 in English Language but through an interpreter (who spoke Efik) from English into Ibibio and vice versa. The P.W.10 who was the interpreter said he interpreted in Efik language. Learned counsel has submitted that this was not the language in which the statement was made. The Efik version he submitted was not recorded.
After making of “Exhibits D and E” regarded as confessional, appellant was not taken to a superior police officer for verification. Learned counsel citing and relying on section 27(2) of the Evidence Act submitted that “Exhibits D and E, could not be regarded as confessions. Learned counsel submitted that appellant challenged the correctness of “Exhibits D and E” and that they were not read over to him. A statement foisted on the appellant cannot be regarded as voluntary. It was further submitted relying on Onochie & Ors. v. Republic (1966) NMLR 307 that the statements were not tested with other evidence outside them to ascertain their truth or otherwise. Learned counsel submitted that the statements were tainted with serious defects which made them not qualify as confessional.
It is important to observe that appellant did not deny making any statement to P.W. 10. He also was not contesting that he did make the statement voluntarily. The contention of learned counsel of the appellant before us is with respect to the language in which the statement was recorded, and that the statement was not read over to appellant in the language in which it was made. It is therefore not an issue that the statements “Exhibits D and E” were made voluntarily, where the question of the accuracy of the statement made and not the making thereof is the issue, the statement so made is admissible.
It is desirable that a statement should be recorded in the language it was made, it is not ipso facto inadmissible merely because this practice was not followed – See Udo v. The Queen (1964) 1 All NLR 21. Appellant’s case is not that he did not understand the language in which the statements were recorded. There was evidence that he made his statement in Ibibio. The statement was interpreted to him in Efik language which he perfectly understood. At least he did not at any stage protest that he did not understand what was communicated to him.
A careful examination of Exhibits D and E disclose that they conform with the essential ingredients of confessional statement as enunciated in the decided cases. A confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. – See Yesufu v. State (1976) 6 S.C. 167; Obasi v. State (1965) NMLR. 129.
In Exhibit D, appellant admitted he had a scuffle with the deceased. He also said that the deceased was unarmed. Appellant stated that he cut the deceased with his matchet on the back. In “Exhibit E”, he stated he cut the deceased three times with his matchet on the head, shoulder and back.
These voluntary statements made by the appellant are consistent with the injuries sustained by the deceased which resulted in his death. These are admissions by the appellant suggesting that he committed the crime. Mr. Okonkwo has argued before us that the statements were not tested with other facts outside to ascertain their veracity and therefore do not satisfy the accepted criteria. I do not think this criticism is justified.
In considering the confession the learned trial Judge took into consideration all the circumstances of the case; the evidence of “P.W.2” the injury to the deceased which is consistent with the confession and the dying declaration of the deceased. In considering the confession the learned trial referred to Bakuri v. The State (1968) NMLR 163 and said:
“The posture of the brutality in the instant case is almost on all fours with that in the Bakuri case. Soon after the encounter with the accused, the deceased only had to run for a distance of sixty metres before he collapsed and gave up the ghost in the parlour of the P.W.11. This was a man who before the encounter was lively enough to ride on his motorcycle and pursue the accused, and could even run some other errands for the village in connection with this incident that very day.”
Before coming to this conclusion, the learned trial Judge had held, at p. 69.
“I believe the evidence of the P.W.11 and I believe that the statement was made by the deceased and I admit it as a dying declaration therefore the combined effect of the evidence of P. W.11 and the dying declaration from the mouth of the deceased himself, leaves one in no doubt whatsoever as to the truth of that portion of Exhibit D in which the accused said he inflicted the matchet cuts on the deceased. That statement is definitely true and I rule that the portion of the statement and some other portion equally retracted by the accused were made by him.”
It is well settled that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by its maker. – See Shittu v. State (1970) 1 All NLR 228; Queen v. Itule (1961) 1All NLR 462; (1961) 2 SCNLR 183; Adamu v. A.G. Bendel State (1986) 2 NWLR (Pt.22) 284; Aremu v. State (1991) 7 NWLR (Pt.201) 1; Ejinima v. State (1991) 6 NWLR (Pt.200) 627. In this instant case the fact that appellant retracted in his evidence in Chief, the statement in “Exhibits D & E”, will not affect their admissibility. They remain admissible and binding. It is an old established principle of our law as applied in our courts that an accused person can be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved – See Ntaha v. State (1972) 4 S.C. 1, Akpan v. State (1990) 7 NWLR (Pt.160) 101.
The confession of the appellant was proved. The learned trial Judge was right to have admitted “Exhibits D and E”. The Court of Appeal was also right to affirm the learned trial Judge on the issue when it said; at p. 148.
“The learned trial Judge quite rightly, in my view, considered the statement along with other evidence available and believed from the surrounding circumstances that the appellant made them.”
I agree with both courts below.
Mr. Okonkwo has criticised the evidence of P.W.2 as unreliable, and along with it the dying declaration credited to the deceased. It was accordingly submitted that the issue of dying declaration and res gestae cannot be founded on his testimony. The statement accepted as “dying declaration” was credited to the deceased shouting.
“Father of my mother Akpan Adiaba Obo Ikpa is killing me.”
There was evidence before the trial Judge that Akpan Adiaba Obo Ikpa, is another name for which appellant was known.
Learned counsel doubted whether “P.W.2” was in a position to hear the statement he claimed to have heard, because he claimed to have been in his house with his children when he heard the shout. No child was called to corroborate with him. Learned counsel also raised points such as the language in which the dying declaration was expressed, the possibility of the declaration being heard by P.W.2 from the position where the deceased was attacked. It was submitted P.W.2 was not an eye witness to the matcher attacks on the deceased. Finally, he criticised the meaning of the expression in the dying declaration and that at 35 years of age, appellant could not possibly be the father of the mother of the deceased. Much of the issues here doubted, such as whether P.W.2 could have heard the declaration from where he was and the language in which it was made are issues of fact, peculiarly within the knowledge of the trial Judge. P.W.2 was believed by the trial Judge and learned counsel has given no reasons why the finding should be regarded as perverse or indeed preposterous.
The meaning of the declaration was explained by learned counsel to the respondent in his brief. The fact that the dying declaration referred to the other known names of appellant is not in dispute. It is therefore not in dispute that it refers to appellant. The expression “Father of my mother” is a figure of speech which describes the relationship between appellant and the deceased. It is not a description of a natural physical and biological relationship. As respondents counsel puts it, it connotes a marital relationship of in-laws. Probably deceased’s wife comes from the family of the appellant. There is no merit in any of these criticisms.
Mr. Okonkwo submitted that the dying declaration cannot be part of the res-gestae; in convicting the appellant.
It is well established in our law of evidence that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die, is admissible as a dying declaration – Section 33(A) Evidence Act. See Akinfe v. State (1988) 3 NWLR (Pt.83) 729, Okokor v. State (1967) NMLR, 189, R. v. Ogbuewu (1949) 12 WACA 483. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties – See Ikono v. State (1973) 5 S.C. 231. There is no evidence that P.W.2 did not correctly state the actual words of the deceased in the dying declaration.
In this instant case, there was no doubt on the established facts that the deceased was in apprehension of imminent death, and died as a result of the injuries sustained from the savage attack within minutes of the declaration. It is distinguishable from R. V. Ogbuewu, (supra) where the deceased died three days later from the injuries but was not in fear of imminent death.
It seems to me hardly arguable in this case that the events which led to the dying declaration of the deceased, declaration itself are part of the res gestae which culminated in the death of the deceased – See Bassa Vorgho v. The State (1972) 1 All NLR (Pt.2) 1. They form part of the one transaction and explain the circumstance of the death of the deceased. It is not mere hearsay but admissible hearsay for the purposes of establishing the fact in issue – See Orshion Kuse v. The State (1969) NMLR 153, Garha & Anor v. R. (1959) 4 FSC 162; (1959) SCNLR 402. The purpose of the declaration is to prove the circumstances of death of the deceased. It is not a mere expression of opinion on the killer’s motive. To this extent it is hardly disputable that the declaration proved is part of the res gestae.
There is no doubt in my mind that the learned trial Judge was right to hold and the Court of Appeal in affirming that “Exhibits D and E” are confessional statements of the appellant of the killing of the deceased, and the evidence of P. W.2 crediting the statement of the deceased as his dying declaration. I also so hold.
The third and last issue is whether the Court of Appeal was right in affirming the decision of the trial Judge that the charge against the appellant was proved according to law.
Having held as I have done above, all the ingredients of the murder with which appellant was charged under section 316 and punishable under 319(1) of the Criminal Code has been proved against him.
There is evidence of the death of the deceased. There is also evidence that the death was as a result of the unlawful and intentional act of the appellant. In the circumstance medical evidence of cause of death is not essential See S.316 Criminal Code, The State v. Oka (1975) 9-11 S.C. J 7.
In the trial court, the learned Judge considered the defences of provocation and self-defence on behalf of the appellant and rejected them as not available.
Mr. Okonkwo has submitted to us in his brief of argument that the defence of self-defence and provocation are available to the appellant. On the defence of self-defence, he submitted that appellant alleged that the entire members of the village were searching for him. They were all carrying guns, cudgels and infact shouting into the bush. He also alleged that they set his house ablaze. Counsel submitted that these were all acts of provocation and support the defence of self defence which the Courts below ignored.
Now, it is obvious from the finding of the trial Judge that no one set ablaze the house of the appellant. Besides there was evidence that those pursuing appellant were not armed. Further, in his statement “Exhibit D” appellant said that the deceased attacked him with his fist and kicked him with his leg. He never alleged that the deceased was carrying any offensive weapons.
Where then lies the provocation What were the acts of insult or assault which were offered by the villagers as a whole or the deceased in particular which necessitated the reaction of the appellant to deal matchet cuts on him Obviously the concerted act of pursuing the appellant cannot be regarded as provocation – See Stephen v. State (1986) 5 NWLR (Pt.46) 978; Ukwunnenyi v. State (1989) 4 NWLR (Pt.114) 131. Indeed the attitude of the appellant in refusing to swear to the Mbian oath lay him bare to justifiable suspicion.
There is no evidence that appellant was attacked by the deceased with an offensive weapon sufficient to excite in him an apprehension of imminent death to justify his using appropriate defensive measures to protect himself – See R. v. Onyeamaizu (1958) NRNLR 93. On his own evidence even if it was believed, which was not, the defence was out of all proportion to the danger which he faced. The defence of self-defence cannot in the circumstance be available to him – See Ajunwa v. State (1988) 4 NWLR (Pt.89) 380; Nwede v. State (1985) 3 NWLR (Pt.l3) 444.
Learned counsel regarded P.W.2 as a tainted witness, whose evidence should be regarded as unreliable. This cannot on the authorities be a correct conclusion. P.W. 2 cannot justifiably be regarded as being involved in the commission of the offence and therefore could not have been an accomplice. See Omisade & Ors. v. R. (1964) 1 NMLR 67. He therefore had no interest of his own to serve in the prosecution of the appellant. The allegation by appellant after so many months that P.W.2 hired him to kill the deceased was not believed by the learned trial Judge. That evidence by itself reinforced the statement in Exhibits D & E that they were voluntary and that appellant committed the offence.
Learned counsel to the appellant had relied on several irrelevant and inconsequential factors to argue against the finding of guilt. In his submission he referred to the fact that there was no evidence of any further matcher cut on the deceased, after P.W.2 had raised alarm. He also referred to the fact that there was no eye witness of the attack by the appellant on the deceased. The essential factors of the death of the deceased, resulting from the unlawful intentional act of the appellant, in the absence of provocation or justifiable self defence and the confession of the appellant was severely ignored. There is no merit in all the issues argued in this appeal. I have read the judgment of my learned brother Uche Omo J.S.C., in this appeal. I agree entirely with his opinion very fully expressed therein. I accordingly dismiss the appeal. I affirm the conviction of the appellant.
S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother. Uche Omo, J.S.C. which has just been delivered. I agree entirely with his reasoning and his conclusion that this appeal lacks merit and should be dismissed. For the reasons stated in the said judgment, I too will dismiss the appeal and affirm the conviction of the appellant and the sentence of death on passed on him.
P. NNAEMEKA-AGU, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Omo, J.S.C. He has dealt fully and admirably with all the intricate issues raised in the appeal. I agree entirely with him and adopt his reasoning and conclusions therein as my own. I need only add a few short comments of my own.
Learned counsel for the appellant criticised the handling of the formulation of issues by the counsel for the appellant in the court below. He submitted that if the formulation was wrong it was not right for the court to have either reformulated the issues or considered the appeal on the defective issues.
In my view, this submission completely lost sight of both the purpose of a brief and the duty of this Court in an appeal before it. Briefs have been designed to help this Court and the Court of Appeal to expedite the disposal of appeals. Although the practice of brief writing has been with us for some fifteen years, we come across poorly written briefs practically every day. Much as counsel have no excuse for producing poor briefs now, the fact that they have done so will not discharge this Court from its duty of doing substantial justice to the parties who appear before it. As the West African Court of Appeal, quoting Thesiger, L.J. in Collins v. Vestry of Paddington (1880) 5 Q.B.D. 308, p.381, in A.Y. Ojikutu v. Francis E. Odeh (1954) 14 WACA 640 said at page 641:
“Blunders must take place from time to time, and it is unjust to hold that because a blunder………..has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
If that was the attitude of the court during the hey days of technicality in the court, how much more now that this Court has in several cases declared its intention to do substantial justice The fact that this is an appeal in a murder case makes the position more compelling. If the Court of Appeal had struck out the issues and refused to receive arguments on them, as suggested by counsel that would have been tantamount to upholding technicality at the expense of substantial justice. This is far from the proper role of the court.
I should also point out that it is not the law that if a confessional statement has not been read over and confirmed before a Superior Police Officer, it will Ipso facto cease to be confessional or be tendered inadmissible, as the argument of learned counsel for the appellant postulates. As I pointed out in Chungwom Kim v. The State (I992) 4 NWLR (Pt.233) at p.17 although this practice has been commended in many cases (see: e.g. R.v. Omerewure Sapale (1957) 2 F.S.C. 24; (1957) SCNLR 307 and Nwangbo Aba Nwigboke & Ors. v. R. (I 959) 4 F.S.C.101, 26; 1959) SCNLR 248), it is not the requirement of any law in force in Nigeria. A statement proved to be voluntary cannot become inadmissible simply because it has not been confirmed before a Superior Police Officer. Such a confirmation simply makes proof of its voluntariness easier.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Omo, J.S.C., I agree that the appeal has no substance, It ought to be, and is hereby, dismissed.
E. O. OGWUEGBU, J.S.C.: I have read in draft the judgment just read by my learned brother, Omo, J.S.C. and I agree with his reasons and conclusion. I dismiss the appeal and affirm the judgment of the court below.
Appeal dismissed.
Appearances
Johnny C. Okonkwo, Esq For Appellant
AND
- B. Akpan, Esq – Director of Public Prosecutions, Ministry of Justice, Akwa Ibom State For Respondent
