SEGUN AKINLOLU v. THE STATE (2013)

SEGUN AKINLOLU v. THE STATE

(2013)LCN/6240(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2013

CA/C/100C/2012

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

SEGUN AKINLOLU Appellant(s)

AND

THE STATE Respondent(s)

RATIO

ESSENTIAL ELEMENTS TO PROVE THE OFFENCE OF MURDER

The learned counsel are right that the essential elements that must be established in order to prove the offence of murder and secure a conviction before a court of law, have been set out in several judicial authorities of the Supreme Court. For instance in the very recent case of Bright v State (2012) 1 – 2 MJSC, 35 at 61 the apex court had restated the essential elements that must be proved by the prosecution, beyond reasonable, for a charge of murder. This is what it said:-
“In a charge of murder, the prosecution is required by law to prove the following:-
(a) That the death of a human being actually occurred;
(b) That such death was caused by the accused;
(c) That the accused person’s act resulting in the death of the human being was done with the intention of causing death or grievous bodily harm;
(d) That the accused know that death would be a probable, not just likely, consequence of his act. See The State vs. Danjuma (1996) 8 NWLR (Pt.469) 660 at 668; Kada vs. The State (1991) 22 NSCC (Pt.11) 592 at 598.”
See also Akinfe vs. State (1988) 3 NWLR (Pt.85) 729; Akpan vs. State (1994) 9 NWLR (Pt.368) 347; Idemudia vs. State (2001) FWLR (Pt.55) 549 at 564; Okon vs. State (1988) 12 SCNJ, 191. PER TUR, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

DEFINITION OF A TAINTED WITNESS

Again in Ishola vs. The State (1978) NSCC 499 at 509 the Supreme Court said of who is a “tainted witness” as follows:
“We cannot close the issue under consideration in the first question posed in the first paragraph of this judgment without considering the other submission of Chief Sowemimo that P.W(18) must be regarded as a “tainted witness”. As we observed in Garba Mailayi & Usman Sokoto vs. The State (1968) 1 All NLR 116 at 123:
“Recently there has been a tendency among criminal lawyers to create a category of “tainted witness”… we however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties. . . “
We think it is proper to confine this category of witness (i.e. “tainted”) to one 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.” Viewed in this way there is less likelihood to bringing unnecessary confusion into this area of evidence; and this is the only logical way of looking at the observations of the courts, on this subject in most of the cases cited to us which include (1) Prater 1960 44 C.A.R. 83 at 86; (2) Frederick Valentine Russell (1965) 52 C.A.R. 147 at 150 and (3) Idahosa & Anors vs. The Queen (1965) NMLR 85 at 87-88. We see nothing in the evidence of P.W.(18) upon which he could possibly be regarded as having some purpose of his own to serve, whether in regard to (a) the charge of conspiracy in respect of which the appellant was discharged and acquitted by the Court of Appeal or the charge or murder. There was, therefore, in our view no substance in the arguments adduced in support of ground (1).” PER TUR, J.C.A.

WHETHER OR NOT THE BEST POSSIBLE WAY OF ESTABLISHING THE CAUSE OF DEATH IS BY MEDICAL EVIDENCE

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The prosecution arraigned the following persons before the High Court of Justice, Oron, in Oron Judicial Division, Akwa Ibom State as follows:
”STATEMENT OF OFFENCE:
Murder contrary to Section 319(1) of the Criminal Code Cap. 31 Vol. II Laws of Cross River State as applicable in Akwa Ibom State of Nigeria.
PARTICULARS OF OFFENCE:
Samuel Ogungbajie, Segun Akinlolu, and Andrew Ayedatiwor, on the 25th day of September, 1993 at Akpa Ikang Fishing settlement in Mbo Local Government Area of Oron Judicial Division, murdered Okon Uyeh of Udesi Akai Ati, from Mbo Local Government Area.”
The Appellant was the 2nd accused and the particulars of the alleged offence were that on the 25th of September, 1993 at Akpa Ikang Fishing settlement in Mbo Local Government of Oron Judicial Division, murdered one Okon Uyeh of Udesi Akai Ali village.
The State called two (2) witnesses in proof of the charge. The Appellant testified in self defence as PW1. After hearing final addresses from the learned counsel for the parties, the High Court, in the judgment delivered on the 27th October, 2009, convicted the Appellant for the offence charged. The Appellant was sentenced to death. This appeal is against that decision. The notice of appeal was filed on 4th October, 2010 pursuant to the extension of time to appeal granted by the court on that day, and contains six grounds. In line with the requirements of Order 18, Rules 2 and 4 of the Court of Appeal Rules, 2011, learned counsel for the parties to the appeal filed briefs of argument as follows: Appellant’s brief was filed on the 19th December, 2013 and the Respondent’s brief was filed on the 23rd January, 2013. Mr. Sonny O. Wogu, Esq., counsel who settled the Appellant’s brief distilled a single issue for decision in the appeal at page 11 of the brief. It is thus:-
Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.”
The same issue, couched in slightly different form, was formulated by Mr. C. J. Udoh, Deputy Director, Public Prosecution, Ministry Of Justice, Akwa Ibom State, at paragraph 3 of the unpaged Respondent’s brief which in all, is of three (3) pages.
The learned counsel for the Appellant, cited inter alia, the cases of Uguru vs. State (2002) 9 NWLR (Pt.443) at 106 and Gira vs. State (1996) 4 NWLR (Pt.443) 375. What the prosecution had to prove beyond reasonable doubt, namely:
(i) The death of the deceased;
(ii) The act or omission of the accused that caused the death; and
(iii) That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.”
According to learned counsel, there was no evidence before the High Court to prove any of the above essential elements of the charge against the Appellant. But the conviction by that court was founded on the following fundamental errors:-
“(i) Erroneous reliance on the purported confessional statement of the Appellant.
“(ii) Reliance on the confessional statement of a co-accused.
(iii) Overlooking the absence of proof of an essential element of the offence of murder.
(iv) Reliance on the evidence of a tainted and unreliable witness. ”
Learned counsel to the appellant submitted that by Section 29 of the Evidence Act, 2011, a confession is only admissible where it was voluntarily made but the High Court contrary to this position, admitted the Appellant’s statement as a confession in spite of the credible and unchallenged evidence of oppression. It was the contention of counsel that the High Court had sought to pick and choose which part of the statement to accept, again contrary to the law. Counsel contended that the law is that the statement of an accused person must be taken as a whole, relying in the case of R. vs. Itule (1961) NSCC, 221 at 224. That a party who tendered a document in court cannot disassociate himself from a portion of the document and claim the other part, citing Attorney-General, Enugu State vs. Avop Plc (1995) 6 NWLR (Pt.399) 90 at 120. Learned counsel referred to page 129 of the record of appeal where the High Court is said to have erroneously dissected the Appellant’s statement in order to rely on parts favourable to the Respondent. The statement was said by counsel to have been wrongly admitted also.
The next submission by counsel is that the High Court erred in law to have used the confessional statement of a co-accused to verify, authenticate and/or ascribe weight to the purported confessional statement of the Appellant. Counsel referred to page 125 of the record of the appeal. It was Counsel’s submission that the law is that an accused’s confessional statement as to his participation in a crime is not confession for his accomplices and cited the cases of R vs. Aganni (1936) 3 WACA, 3 and Mbang vs. State (2009) 18 NWLR (Pt.1172) 140 at 159 where Onnoghen, JSC said:-
“An accused making a confessional statement as to his participation in a crime is not confessing for his accomplices. A man’s confession is only evidence against him and not against his accomplices and it is a misdirection which may lead to the quashing of the conviction to omit to warn a jury or assessor of this fact.”
Counsel argued that in the Appellants’ case, the High Court’s decision as to whether or not to rely on the Appellant’s statement to convict was influenced by the comparison of the statement with that of the 2nd accused, contrary to the law, citing Ozaki v State (1990) 1 NWLR (Pt.124) 92 at 113.
Learned counsel argued that the entire evidence of the Respondent before the High Court woefully failed to establish the death of Okon Uyeh, which was an essential element of the charge against the Appellant. Reference was made to Section 319 of the Criminal Code and the case of Damina vs. State (1995) 8 NWLR (Pt. 415) 573 at 537. Counsel submitted that there was no evidence to establish that the body examined by a doctor who was not called as a witness, was that of the deceased. Also that the person who identified the deceased to the doctor was not called as a witness at the trial. Counsel pointed out that PW1, who was the Investigating Police Officer (IPO) and who did not know the deceased, had testified at page 41 of the record of appeal that the corpse of the deceased was found about two (2) weeks after the alleged crime was committed. He submitted that there was no evidence that the decomposed remains, on which post mortem was carried out was duly identified as that of the person allegedly murdered by the Appellant since no member of the unidentified search party that recovered the body was called to give evidence on the conditions of the body and that it was that of the deceased. According to counsel, from the evidence before the High Court, there was a mix up as to who the deceased in question was as Pw1 had referred to him as the driver of the speed boat. It was argued that the High Court had stated that the cause of death was not established when it – at page 128 of the record of appeal that:-
“In the instant case, it would appear that the cause of death may not have been established. I note however that PW2 did not say in his evidence that the deceased died of stab wounds.”
It was the case of counsel that PW2 said nothing about witnessing the death of the deceased and did not see the corpse as he was only informed of its recovery while on admission in hospital. In further argument, counsel said neither the Appellant nor the co-accused confessed to murder in their alleged confessional statements on which the High Court placed so much reliance and he urged us, on the authority of Alabi v State (1973) 7 NWLR (307) 511, to hold that the evidence before the High Court did not establish an essential elements of the offence the Appellant was charged with and that the prosecution had failed to prove it beyond reasonable doubt.
Learned counsel further submitted that the High Court relied on evidence of PW2, who is a tainted witness without the necessary caution and corroboration. He cited Ishola vs. State (1978) NSCC 499 at 509 and Ifejirika vs. State (1999) 3 NWLR (Pt.593) 59 at 77, that a tainted witness is a witness who though not an accomplice, may have a purpose of his own to serve. It was contended that the evidence of such a witness is required to be treated with considerable caution by trial courts which should be wary in relying on it without some corroboration. The case of Agbanyi vs. State (1995) 1 NWLR (Pt.361) 1 was cited on the submission. It was contended that Pw2 had a case to answer as he was the 1st suspect in the case of the missing boat and engine and so had his own interest to serve. That in the circumstances of the case, the High Court should have rejected the evidence of PW2 as it contained inconsistencies, relying on Sowemimo vs. State (2004) 11 NWLR (Pt.885) 515 at 532. Counsel maintained that apart from the tainted evidence of PW2, no one saw the Appellant attack the deceased as the evidence of PW1 did not link the Appellant with the offence charged. We were urged to resolve the issue in favour of the Appellant and hold that the Respondent did not prove the charge of murder against him beyond reasonable doubt because there were reasonable doubts about the identification of the deceased and the use of inadmissible evidence which should be resolved in favour of the appellant, citing Oladele vs. State (1993) 1 NWLR (Pt.294) 307. The Court was urged to allow the appeal, set aside the judgment discharge and acquit the Appellant.
The learned counsel for the Respondent also cited cases on the elements of the charge of murder which the prosecution must prove beyond reasonable doubt and submitted that there was ample evidence that Okon Uyeh was one of the passengers of the speed boat on the date in question. That he was pushed into the river and was subsequently found dead. However PW2 was not challenged under cross examination and cannot be controverted at this stage, citing Offorlete vs. State (2000) FWLR (Pt.12) 2081 at 2088. That there is no challenge on the finding by the High Court on the evidence. It was further submitted that death of the deceased could be established even without medical report on the authority of Usufu vs. State (2007) 3 NLR (Pt.1020) 94; Effiong vs. State (1998) 8 NWLR (Pt.562) 362; Afolalu vs. State (2011) 194 LRCN 136 at 147. Learned counsel said the evidence of PW2 identified the Appellant and the role played by each of them in the course of the commission of the crime and so it did not matter what each of them did in furtherance of the crime when they were seen to jointly pursue their criminal intention, relying on Ogbu vs. State (2007) 5 NWLR (Pt.1028) 635. It was also submitted by the Deputy Director, Public Prosecution that before admitting the Appellant’s statement, the High Court conducted a trial within trial. The Court had the power to convict on a retracted confessional statement if satisfied that the accused made it voluntarily. Reference was made to Haruna vs. Attorney General, Federation (2012) 208 LRCN 70 and Oseni vs. State (2012) 208 LRCN 151 at 154. Counsel contended that the inconsistency rule does not apply to an accused person’s extra-judicial statement which is inconsistent with his evidence in Court. It was then submitted that failure to call a particular witness is not fatal to the case of the prosecution so far as the case can be proved with evidence of other witnesses. Counsel referred to the case of Afolalu vs. State (supra). The Court was urged to uphold the judgment of the High Court and hold that the prosecution had established the case against the Appellant beyond reasonable doubt.
Section 319 of the Criminal Code under which the Appellant was charged for the offence of murder, has the following provisions:-
“319(1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.
(2) Where an offender who in the opinion of the court had not attained the age of seventeen years at the time the offence was committed has been found guilty of murder such offender shall not be sentenced to death but shall be ordered to be detained during the Governor’s pleasure and upon such an order being made the provisions of Part 44 of the Criminal Procedure Law shall apply.
(3) Where a woman who has been convicted of murder alleges she is pregnant or where the judge before whom she is convicted considers it advisable to have inquiries mad as to whether or not she be pregnant the procedure laid down in section 376 of the Criminal Procedure Law shall first be complied with.”
The offence punishable by the above provisions, i.e. murder was defined in Section 316 of the code in the following terms:-
‘316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is of say:-
If the offender intends to cause the death of the person killed, or that of some other person;
If the offender intends to do the person killed, or to some other person, some grievous harm;
If, death is caused by means of an act done in the prosecution of an unlawful purpose, which act is such a nature as to be likely to endanger human life;
If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence; if death is caused by administering any stupefying or overpouring things for either of the purposes last aforesaid;
If death is caused by willfully stopping the breath of any person for either of such purposes; IS GUILTY OF MURDER.
In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person.
In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
Concisely put, the offence of murder by the above provisions, is the unlawful killing of a person in any of the situations or circumstances enumerated therein, by another.

On the basis of the constitutional and statutory provisions in the Evidence Act, the courts have laid down that the burden of proof imposed on the prosecution is the legal duty to adduce cogent and sufficient evidence to prove all the essential elements or constituents of the offence alleged so as to eliminate any reasonable doubt as to the commission of the offence by the person charge or accused. It is also the law that the burden of proof in trials for criminal offences lies and remains with the prosecution throughout and until it is discharged as required by law to the satisfaction of a trial court, the person charged would be entitled to be discharged of the offence he was alleged to have committed. See Oteki vs. Attorney General, Bendel State (1986) 2 NWLR (Pt.24) 648; Onafowokan vs. State (1987) 7 SCNJ 238; Nwosu vs. State (1998) 8 NWLR (Pt.562) 433; Adisa vs. State (1991) 1 NWLR (Pt.168) 490; Wanke vs. State (1986) 4 CA (Pt.11) 297; Shande v State (2004) ALL FWLR (Pt.223) 1955; Igabele vs. State (2006) 6 NWLR (Pt.975) 100; Ifejirika vs. State (supra). Where any of the essential elements of the offence charged was not proved beyond reasonable doubt by the evidence of the prosecution, an accused person is entitled in law, to be discharged and acquitted of the offence. See Kalu vs. State (1988) 4 NWLR (Pt.90) 503; Iortem vs. State (1997) 2 NWLR (Pt.490) 711; Nwodo vs. State (1991) 4 NWLR (Pt.185) 341; Igabele vs. State (2000) ALL FWLR (Pt.311) 1797.
Andrew Ayedatiwor (3rd accused) died in prison custody during the trial (see page 41 lines 12-13 of the printed record).
Sergeant Edward Agabi who investigated the crime testified as Pw1. The witness testified how Pw2 identified the three accused persons as those who had attacked them on the high seas and murdered the driver of the boat and another passenger. The Pw2 also told Pw1 how he had jumped into the water and the accused persons drove the boat away which was subsequently recovered upon their arrest at Abonema. Pw1 gave the names of the two deceased persons as “one Eteyen and one Mr. Okon Uyeh” (See page 41 lines 9-10 of the printed record). At page 41 lines 19-23 of the printed record Pw1 testified as follows:
“…In my investigation at this stage, I found out that the accused persons were the same person who murdered one Eteyen and Mn Okon Uyeh in order to steal one speed boat and one 75 horse power outboard engine. They also threw one John Bassey into the sea.
We were able to recover the corpse of Eteyen and taken to the hospital but the corpse of Okon Uye was not found immediately until about 2 weeks later I took both corpses to the hospital on different days. I served both Doctors with the necessary forms and postmortem examination was carried out on the two corpses and reports were issued. ”
I shall start by considering whether Pw2 was a tainted witness. I shall reproduce what the Supreme Court said in the case of Agbanyi vs. The State (1995) 1 NWLR (Pt.369) 1 at 20-21 regarding Pw1 considered a tainted witness:
“In the instant case, the learned trial Judge did not at all give any consideration to the proven and accepted existing animosity between Pw1 and the appellant, though the appellant had persisted standing animosity even in his allocutus before his conviction. The learned trial Judge ought to have considered and made a finding of fact, that there is an existing grudge between Pw1, Pw2 and Dw1 and Dw2 on which the learned trial Judge would have been very cautious and slow in accepting in its entirely as he did, the evidence of the prosecution and disbelieving the appellant.”
Again in Ishola vs. The State (1978) NSCC 499 at 509 the Supreme Court said of who is a “tainted witness” as follows:
“We cannot close the issue under consideration in the first question posed in the first paragraph of this judgment without considering the other submission of Chief Sowemimo that P.W(18) must be regarded as a “tainted witness”. As we observed in Garba Mailayi & Usman Sokoto vs. The State (1968) 1 All NLR 116 at 123:
“Recently there has been a tendency among criminal lawyers to create a category of “tainted witness”… we however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties. . . “
We think it is proper to confine this category of witness (i.e. “tainted”) to one 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.” Viewed in this way there is less likelihood to bringing unnecessary confusion into this area of evidence; and this is the only logical way of looking at the observations of the courts, on this subject in most of the cases cited to us which include (1) Prater 1960 44 C.A.R. 83 at 86; (2) Frederick Valentine Russell (1965) 52 C.A.R. 147 at 150 and (3) Idahosa & Anors vs. The Queen (1965) NMLR 85 at 87-88. We see nothing in the evidence of P.W.(18) upon which he could possibly be regarded as having some purpose of his own to serve, whether in regard to (a) the charge of conspiracy in respect of which the appellant was discharged and acquitted by the Court of Appeal or the charge or murder. There was, therefore, in our view no substance in the arguments adduced in support of ground (1).”
The appellant and his co-conspirators met Pw2 late Eteyen, late Okon Uyeh and the Ibo man for the first time on 25th September, 1993 when they boarded the speed boat as paying passengers only to stab and throw them into the waters of the high seas. Where is the evidence that there had been a long-standing dispute or animosity between Pw2 and the appellant, and over what? What grudge did Pw2 have against the appellant and his co-conspirators to warrant his evidence being excluded by the learned trial Judge? On what evidence would the learned trial Judge have treated Pw2 as a tainted witness? I see none on record. What purpose had Pw2 served by framing the appellant and his co-conspirators? Was the speed boat not recovered from them as claimed by the prosecution? The unchallenged evidence is it was. Argument by Counsel on appeal should have regard to the evidence adduced in the Court of trial coupled with the findings of the learned trial Judge. Moreover, what is the legal effect of the appellant and his co-conspirators stabbing and throwing Eteyen and Okon Uyeh into the waters of the high seas? Section 167 of the Evidence Act, 2011 reads as follows:
“167. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct…, in their relationship to the facts of the particular case…”
To stab a person with a knife and throw him in the waters of the high seas has only one motive, namely, that the person should probably drown.

Where a statement contains a confession but in some parts exculpating the accused person, the whole statement has to be considered along with the facts proved at the trial. See Saidu vs. The State (1982) 1 NCR 49 at 62.The learned trial Judge considered the entirety of the confessional statement of the appellant in Exhibit “2” before rejecting his defence that at no time were Okon Uyeh and Eteyen stabbed with knives. It is within the province of the learned trial Judge to come to such a conclusion upon believing the testimony of Pw2. The appellant and his coconspirators were arraigned only for murdering Okon Uyeh but not Eteyen. The issue is whether there is no evidence to believe Pw1 and Pw2 that Okon Uyeh died as a result of being stabbed and thrown into the high seas. When Pw2 met the appellant and his co-conspirators in the police cell they were surprised and exclaimed that he had not died. This was not disparaged under cross-examination. Learned Counsel relied on the case of Rex vs. Bang Weyeku (supra) that the conviction was bad in law because apart from Pw2 there was no other eye witness to the stabbing and throwing of Okon Uyeh into the waters. But in the case cited the principal evidence against the appellant was from several witnesses that shortly after Tata was stabbed in the stomach with a sharpened elephant grass stem he was heard to say “Bang has shot me” or words to that effect. This was the evidence the learned trial Judge relied upon as dying declaration implicating the appellant. The West African Court of Appeal held that the dying declaration was wrongly admitted in that did not meet the standard in Rex vs. Bedinfield 14 Cox 341. Apart from this inadmissible evidence there was no other evidence for the learned trial Judge to have convicted the appellant hence the conviction was quashed. In this case there was no dying declaration from Okon Uyeh. In Philip Dim vs. The Queen 14 WACA 154 the appellant left his room in the early hours of the morning and attacked his wife in her room with a pick-axe head causing her serious injuries in the face, jaws and shoulder and she died shortly afterwards from the resulting shock and hemorrhage according to medical evidence. The learned trial Judge convicted and sentenced him to death. On appeal the West African Court of Appeal held at page 155 that:
“Intent to murder was a necessary inference to be drawn from the acts committed by the appellant and the rule of law is that a man is taken to intend the natural and probable consequence of his own acts.”
Again in Maye Nungu vs. The Queen 14 WACA 379, in a heated argument the appellant picked an-axe, turned away the iron and struck his brother on the head with the wooden elbow of the haft. This inflicted a wound two inches long by 11/2 inches wide. The young man died almost instantly. The learned trial Judge convicted the appellant and sentenced him to death. On appeal it was argued that by turning away the iron side of the axe or the cutting edge this negatived the intention to kill or cause grievous harm. In rejecting this argument the West African Court of Appeal held at page 379 to 380 as follows:
“It is true that the presumption that the appellant intended the natural and probable consequences of his act may be rebutted or negatived by direct evidence. As was said by this Court in Rev. vs. Amponsah and others (1) “the presumption of intention was rebuttable if the appellants believed that the assaults would probably not cause or contribute to the death of the deceased.” It may be arguable from the turning away of the cutting edge of the axe that the appellant had no intention of killing the deceased and did not believe that to strike him with the wooden haft would cause his death but we do not think it would be reasonable to conclude therefrom that the appellant did not believe that to strike the deceased on the head with the haft of the axe, heavily weighted as it was with the iron head, and with such force as to inflict the wound described would not cause grievous harm. He must in our view have intended the natural and probable consequence of that act and by reason of sub-section (2) of section 316 of the Criminal Code a person is guilty of murder if he intends to do the person killed some grievous harm.”
Bassey John Effiong (Pw2) was in the flying boat and described vividly how the three suspects they had conveyed from Abana Fishing Port to Oron attacked them on the high seas on 25th September, 1993 before escaping with their speed boat. I hereby reproduce his evidence:
“Pw2: Sworn on the Bible and states in English. My name is Bassey John Effiong. I live in Bakasi which has been handed over to Cameron. I sell clothing materials as my business. I know the two accused persons. I know the Pw1 the police officer who handled this case. On 29th September, 1993 we were returning from Cameron by flying boat. We were together with my driver while I was the conductor. There was also an Igbo boy whom I took to Cameron. My boat driver was by name Eteyen. We branched Abana to look for passengers. There we saw three passengers who said they wanted to go to Oron. The two accused persons here in the dock and one other person where these 3 passengers. They knew me very well. I have not seen the third person. The said he has died. These three passengers priced me N100.00 each to come to Oron and they entered the boat. Coming on the mid sea the 1st accused person said he wanted to urinate, that I should slow down the boat, when the driver slowed down, the 1st accused brought out a knife and stabbed my driver. I was in front. My driver shouted. The 2nd accused person was staying close to me. Immediately the 1st accused person stabbed the driver that is now reported dead, the person held me and throw me into the water. There was one old man whom we also carried. The 2nd accused person stabbed that man. Infact when that other man held me, I had to jump into the water. Two people were stabbed and throw into the water that my driver and the old man named Mr. Okon Uyeh. The Igbo boy also jumped into the water. The Igbo boy and myself remained in the water till about 4pm when we were rescued by a fishing boat. We were tired and I went later to report the matter at the Area Command Oron. We were treated in hospital. Meanwhile the accused persons took the boat and a search team was raised to took for the boat and the accused person, but we could not see it. The owner of the boat was my senior brother called Ita Okon Effiong. I reported the matter to him. My brother went round to look for the boat but there was no way. We also raised a search party for the corpse. After about 4 days the corpse were recovered. I was in hospital and my brother came and told me that the corpses have been recovered. The accused person took the money belonging to the Igbo boy which was inside the boat. It was the sum of N20,000.00. It was three of them that took the boat away. It was the 1st accused that drove the boat. He stabbed my driver. Postmortem was conducted on the corpses. The accused persons uses jack knife that is dagger to stab the driver and the old man. I made a statement to the police.
It was through information that we heard that our boat had been found in Abonima. When we later went there in company of the police, the police asked me if I saw the people who took the boat whether I would be able to identify them, I said yes. The police took me to the cell where there were many other occupants I looked through and easily picked the 2nd accused persons. In fact when the accused person saw me they were surprised and the accused person exclaimed that he thought I had died. That was after I identified him. I told him God helped me. He even begged me for some cigarette that day. I made statement to the police.”
The two men stabbed and thrown into the water, were the boat driver by name Eteyen and the old man named Mr. Okon Uyeh. As I have stated, the one count charge is in respect of the murder of the old man by name Mr. Okon Uyeh. The Igbo boy and Pw2 however survived having been rescued from the water around 4pm. Pw2 later learnt that the two corpses had been recovered from the waters of the high seas. Pw1 testified that postmortem was carried out on Eteyen Andem Umana and Okon Uyeh at the General Hospital Oron and their corpses released for burial. At the hearing the postmortem report on Okon Uyeh was tendered through the IPO (Pw1) “for purposes of identification and marked as “IDI” by the learned trial Judge. See pages 41-42 lines 6-7 and page 101 lines 6-8 of the printed record. At page 117 lines 5-8 of the printed record his Lordship rightly held that:
“…The Pw1 said the corpse of Okon Uyeh was later recovered and a postmortem examination conducted thereon. The medical report on the corpse was only tendered for identification purposes and was not tendered as an exhibit. It can therefore not be used…”
That is the correct position of the law. A statement or document does not become evidence until it is admitted as such by the Court and marked as an exhibit. See Q vs. Mboho (1964) NMLR 49 at 52 and Ahmadu Tea vs. Commissioner of Police (1963) NRNLR 77.That being the case, there was no admissible postmortem report to prove the cause of the death of Okon Uyeh. But was there no independent evidence to support the fact that the appellant and his confederates committed the acts which led to the death of Okon Uyeh? I think there was. The evidence by the prosecution witnesses that the corpses of Eteyen and Okon Uyeh were afterwards recovered from the sea and a postmortem was carried out by a Doctor was not disparaged under cross-examination by the defence Counsel. What was not before the trial Court as an exhibit was the postmortem report which had been tendered only for identification and could not be relied upon to found conviction. I do not think the failure of the prosecution to tender the postmortem report so that it would be marked as an exhibit per se can be a ground for arguing that the prosecution had not proved her case beyond reasonable doubt. At page 117 lines 8-23 of the printed record his Lordship reasoned as follows:
“However the evidence of the Pw1 and Pw2 are sufficient to establish that Okon Uyeh had died. Pw1 and Pw2 said he met the relatives of the deceased who helped in the search party and the eventually recovered the corpse of the deceased which he took to Hospital for autopsy.
So who killed the deceased? The prosecution have relies on the evidence of the Pw2 who said he was a boat conductor on that day when the accused persons together with one other person with them joined their boat at Abana. The evidence of the Pw2 was to the effect that the accused persons (i.e) the 1st and 2nd accused persons stabbed the deceased and one person called Eteyen both of whom were also thrown into the sea by the accused persons.
The Pw2 said when an attempt was also made on his life by the accused persons he jumped into the sea but was later rescued.”
The best evidence of identification of the corpse as that of Okon Uyeh would have come from his father Andem Umana or any member of the search party that recovered the corpse. The second is Pw2 who happened to be the conductor of the flying boat for he had been together with Okon Uyeh in the trade. They were in the speed boat on that fateful day when the crime was committed. Pw2 was an eye witness to what happened. He described in vivid terms what each accused did, and to whom. The third person is Pw1 who investigated the crime and testified that the corpse of Okon Uyeh was recovered about two weeks thereafter thus confirming his death.
In Princewill vs. The State (1994) 6 NWLR (Pt.353) 703 there were eye witnesses when the appellant beat the wife to death. The Doctor (Pw3) gave evidence that he performed the postmortem examination on the deceased who had been identified to him by Pw2 in the presence of Pw5. Pw3 denied ever identifying the deceased to the Doctor and Pw5. This cast doubt on the evidence of the medical doctor (Pw3) and Pw5 as to who actually identified the corpse for the purpose of postmortem. Nevertheless, after examining other evidence, the learned trial Judge convicted and sentenced the appellant to death. The judgment was upheld by the Court of Appeal. On a further appeal the Supreme Court held at page 713 paragraph “E” to page 714 paragraph “C” as follows:
“Where, however the corpus delicti is not discovered or there was no autopsy on the deceased’s body, the prosecution, to succeed, must identify the deceased named in the charge as the person allegedly killed by the accused person. See R vs. Momodu Laoye (1940) 6 WACA 6; State vs. Nicholas Uzoagwu & Ors. (1972) 2 ECSLR (Pt.II) 429. This is vital so as to eliminate any possible mistake in convicting an accused person over a death he is not connected with and it will also ensure that no miscarriage of justice arises at the trial.

Where however the totality of the evidence of the prosecution shows unmistakably that the body on whom a Doctor performed a post mortem examination was that of the deceased, a separate witness on the issue of the deceased’s identity, though desirable, is not a necessity, see Ukwa Enewoh vs. State (1990) 4 NWLR (Pt.145) 469. So too, where there is positive evidence that the deceased named in the charge had died but the body was not discovered or there was no autopsy on the dead body, the accused may still be convicted of murder based on his confessional statement or other circumstantial evidence which conclusively points to the fact that the accused caused the death. See Edim vs. State (1972) 4 SC 160; Efe vs. State (1976) II SC 75; Ogundipe vs. Queen (1954) 14 WACA 458; Ukorah vs. State (1977) 4 SC 167; Ariche vs. State (1993) 6 NWLR (Pt.302) 752. I will now examine the extent to which the prosecution established the identify of the corpse on which Pw3 performed his post mortem examination.”
His Lordship however continued at page 715 paragraphs “F” – “H” of the judgment as follows:
“It cannot be disputed that the best, and perhaps, the simplest way of establishing the identity of a deceased person, the subject of a charge of murder or manslaughter, is evidence of identification by someone who knew the deceased white he was alive. No such evidence was called by the prosecution in the present case. But as I have already observed, evidence that a witness identified the body of a deceased person to a Doctor at a post mortem examination on such a body is not a sine quo non in all murder cases. If there is evidence from which it can be inferred conclusively that the corpse examined by the Doctor is that of the deceased named in the charge, the evidence of the person said to have identified the corpse is certainly not indispensable. Indeed a conviction for murder is sustainable in cases where the corpus delicti is not discovered, that is to say, where the dead body of the person murdered is not recovered, so long as there is positive and conclusive evidence that the deceased named in the charge was killed by the prisoner. in short, the need to identify the body of a deceased person to a Doctor in a post mortem examination is not really a sine quo non in all murder cases, See Edim vs. State (1972) 4 SC 160; Ndu vs. State (1990) 7 NWLR (Pt.164) 550 at 571; Enewoh v. State (1990) 7 NWLR (Pt.145) 469 at 477 and R vs. Onufrejezyk (1955) 1 QB.388. I will now consider whether from the totality of the evidence led in this case, there is sufficient evidence which conclusively establishes that the deceased Ebitenyefa Clifford was unlawfully killed by the appellant under circumstances which make it unnecessary for the prosecution to call further evidence of her identification.”
His Lordship examined the circumstances in which the appellant’s wife died, namely, almost at the spot in the presence of Pw1 and Pw4 who had seen the vicious and violent attack on the deceased. They knew the deceased and the appellant very well and were infact related to each other. The Supreme Court examined the extra-judicial statement of the appellant (Exhibit “B”) before holding at page 716 paragraphs “G” – “H” to page 717 paragraphs “A” – “F” as follows:
“There is also no doubt that the facts of this case as presented to and accepted by the Court are such that it is clearly unnecessary for the prosecution to call further evidence in proof of the identity or the death of the deceased Ebitenyefa Clifford. In the circumstance, it seems to me that the speculative aspects of the decision of the trial Court as affirmed by the Court below notwithstanding, no mismanage of justice was thereby occasioned as the death and identity of the deceased are otherwise satisfactorily established in the case.
The second arm of the sole issue that arises for determination is whether there is conclusively evidence that the appellant caused the death of the deceased. In this regard, it is trite law that to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. See State vs. Christopher Omoni (1969) 2 All NLR 317; Valentine Adie vs. State (1980) 1 – 2 SC 116 at 122-123; R. vs. Johnson Nwokocha (1949) 12 WACA 453 at 455 and R. vs. Izobo Owe (1961) 1 All NLR 680.

There can be no doubt that the best possible way of establishing the cause of death is by medical evidence. But it is equally true that the cause of death may be inferred from the circumstances of a case by the Court. In other words, where the victim died under circumstances which leave no doubt as to the manner and cause of death, medical evidence may be dispensed with. Thus where a person is attacked with a lethal weapon and he died on the spot, it is reasonable to infer that the injury inflicted on him caused the death. See Bakuri vs. State (1965) NMLR 163. Where however the circumstances of the death are not of that nature, the prosecution must establish the cause of death beyond reasonable doubt. See too Kato Dan Adamu vs. Kano Native Authority (1956) 1 FSC 25; (1956) SCNLR 65 and State vs. Bakuri (1965) NMLR 163. But much as medical evidence is described to prove the cause of death in homicide cases, it is not a sine qua non as the same may be established by sufficient evidence, other than medical evidence, showing beyond reasonable doubt that such death resulted from the acts of the accused complained of. See Azu vs. State (1993) 6 NWLR (Pt.299) 303; Akpuenya vs. State (1976) 11 SC 269 at 278; Lori vs. State (1980) 8 – 11 SC 81 at 97; Essien vs. State (1984) 3 SC 14 at 18; State vs. Edobor (1975) 9 – 11 SC 69 and Edim vs. State (1976) 4 SC 160 at 162. What has to be decided however is whether from the legal point of view, 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 the deceased’s death was cause d by such injuries. See Archibong Effiong Effanga vs. State (1969) 1 All NLR 339.
In the present case, there is abundant evidence which the trial Court accepted as established to the effect that the appellant violently attacked the deceased and hit her with a piece of plank. The deceased apparently died on the spot. The appellant was seen in his room with the dead body of the deceased who had head injuries. It is also established that the said appellant escaped through the window of his room and fled to Iwofe village when sympathizers tried to break into his room to arrest him. He remained at Iwofe until he was finally arrested by the police.”
The appeal against conviction and sentence was dismissed by the Supreme Court. In a situation where Eteyen and Mr. Okon Uyeh were stabbed with knives and thrown into the high seas and their corpses were later recovered and subsequently buried, and this is not controverted by the defence in the lower Court, how on earth can it be argued on appeal that the prosecution did not prove the charge beyond reasonable doubt? I do not think so. In the absence of a post mortem report, let us examine the extra-judicial statements of the 1st accused person tendered and marked Exhibits “1” thus:
“This is what the 1st accused had to say in his own statement: “That I am a native of Abeokuta in Ogun State but born and bred in Kula in the Republic of Cameroun. I have earlier made a statement to the police in connection with this case at Kular and Abonima Marine Police station and Ewang police station on 13/10/1993. The statements made at Ewang police station was read to me in State C.I.D. office Uyo on 22/10/1993 which I adopted as my correct and further stated that I know Samuel Ogungbajie who is a friend from Ondo State but residing at Oron. We came to know ourselves at Cameroun where Samuel used to bring food stuffs like yams, garri, provisions as well as rubber slippers for sale. There we came into contact. Myself Samuel Ogungbajie and Andrew Ayedatiwor does the same business. While I stay in Duala in the Cameroun Republic, Samuel and Andrew stay in Oron in Akwa Ibom State we don’t do this business jointly but independently. We used to hire one canoes sometimes to transact our business. As at January, 1993, I had my personal 40 horse power outboard engine for operating this business. In March, 1993 when we were traveling with goods from Oron to Cameroun Republic Gendarme seized the boat with the engine and goods. Again in June, 1993 when the three of us were conveying goods in a hired Canoes to the Cameron Republic Gendarme seized both the boat and the goods with N150,000.00. After this second incident the owner of the boat one Asuquo whose place of business I can’t know as it was Samuel that hire the boat demanded for N300,000.00 from us for the boat and the engine. Up till now we are still owing the owner of that boat the amount demanded. After this we went round to get loan from people to continue the business, I got N9,600.00 and on 15th September, 1993 we bought goods from Oron and the three of us took off from Ebugbu beach through a passenger boat which was going to Krebee. On the high sea at Krebee the Gendarme held the boat and seized it with the goods and every person found their way out of the place. The three of us decided to return to Oron. We joined another boat which was going to Calabar and dropped at Abana. At Abana, we met and decided that any speed boat that we see that use to move with Gendarme whom we shall see carrying two, three or four passengers that we shall collect their boat and engine and sell to anybody and share the money. We decided that when we see such people we would push the occupants into the sea and throw the boat buoys to them to swim for safety since Samuel Ogungbajie knows how to drive he should first go to the driver and ask for permission to urinate and if the permission is granted to urinate, should push the driver into the sea and take over the driving of the boat while myself and Andrew should push the rest occupants into the sea and throw life buoy to them to use in swimming. We then moved to Abana beach on 25/9/1993 at about 12noon while there, we saw a speed boat with three passengers which was going to Oron. We entered the boat and with promise to pay N100.00 demanded from each of us. Getting to a point along the Creek, Samuel moved to the driver as planned and asked for permission to urinate and the driver slowed down. Samuel then push out the driver whom I did not know but I use to see him as one of those that use to carry Gendarme about to seize our goods. As Samuel pushed the driver into the sea he threw a life buoy to him to use and swim for safety. At the same time myself and Andrew pushed other occupants of the boat into the sea and gave them life buoy to swim for safety. We did not use any knife or dagger to stabs any of them. White Samuel drove off the boat, I picked the sum of N4,000.00 in the boat. Samuel told us that he knew where the boat and engine would be sold. We got to Abasibiye fishery port where we wanted to buy fuel at about 8pm. As Samuel climbed up to ask for fuel he was arrested by the people suspecting him to be one of those who use to supply Ogoni people with ammunition and as such the people wanted to kill him. When myself and Andrew went up to explain our mission to them they demanded for settlement before they would allow us to go and we gave them N2,500.00 before they allowed us to go. In the morning of 26th September, 1993 we got to Abasikolo fishing port where Samuel has the deputy village Chief as a brother. As we reached the man’s house he gave us food to eat at about 3pm. While there the village head send for his deputy to come with his strangers. As we went there we were asked about our movement there, and we told them that we came there to buy fuel for our boat which was on the high sea. While there we saw three police men who came and arrested us alleging that we were one of those who used to come and steal their outboard engine. We were then taken to Kular police post where we made statement. We were again transferred to Marine police station Abonima with the boat. From there the IPO came and identify the owner of the boat at Oron who also came and identify the boat at police Jetty. We were again taken to the Marine police Headquarters and State C.I.D. – Port Harcourt before being transferred to Ewang in Mbo Local Government. We were at Ewang police station when we were informed that the boat was brought back to Oron. We were informed that the driver of the boat we carried away on 25th September, 1993 died. I never knew Eteka Tom before. I only met him when I was detained in the cell at Ewang. We were transferred to Ewang with a case file from Port Harcourt. From Ewang I was transferred to Uyo where I made this statement. Sgd. Segun Akinlolu.”
Let us further examine the extra-judicial statement of the 2nd accused person which reads thus:
“The Exhibit 2 being the statement of the 2nd accused person Andrew Ayedatiwor read thus: “That I have earlier made a statement to the police in connection with this case at Kular police post and Abonima Marine Police Station all in Rivers State and at Ewang police station in Akwa Ibom State. The statement made at Ewang was read to me in State C.I.D. office Uyo on 22nd October, 1993 and accepted the statement as my true statement and further state that I am a native of Obe village in Ondo State but presently residing at No.4 Spring Road, Oron. I know Samuel Ogungbajie who is from Ondo State. He is my friend which I know since July, 1993. I knew Segun Akinlolu who is from Ogun State. Both Samuel and Segun were engaging in the business of buying plastics and sell at Cameroun Republic before I joined them. I used to buy goods and sell at Equatorial Guinea before I came to join Samuel and Segun. We buy good independently and charter boats jointly to go and sell the goods.
On 17th September, 1993, the three of us left Ebughu beach in a chattered boat with goods from one Eteyan whose father’s name I did not know, at the rate of four thousand five hundred Naira, Samuel Ogungbajie drove the boat to go and sell the goods at Cameroun. I did not know the type of goods Segun and Samuel bought for they were contained in a bag. There were other passengers in the boat who were going to the Cameroun. When we reached a certain Creek Gendarme came and seized our boat with the engine and goods. Other passengers found their way out of the place and tree of us Segun, Samuel an myself joined another boat to Abana on 24th September, 1993. At Abana on 25th September, 1993 we planned that if we see anyone of the speed boat that use to carry Gendarmes to seized our goods that we must seized such boat and threw the occupants into the sea. We planned that when we enter such boat which carries two or three passengers Samuel who can drive a boat should excuse the driver to urinate. That if the driver grants him the excuse, he should push the driver into the sea and take over the driving white myself and Segun should push other passengers into the sea and throw life buoy for them to swim. When we planned this we came to Abana beach, we saw one speed boat with passengers. They told us that they were going to Oron and that we should pay one hundred Naira each to Oron. We entered the boat, we were altogether seven persons in the boat. As we were passing along one Creek, there we decided to put into action our plan. Samuel first went to the driver and excused from the driver to urinate and the driver slowed down the boat then Samuel pushed the driver into the sea and myself and Segun pushed the rest passengers into the sea threw life buoy for them to swim while Samuel took over the driving of the boat. The occupants of the boat were swimming when Samuel drove off. Inside the boat we saw N4,500.00 which we used N1,000.00 to buy fuel at Eket Area. We were taking this boat to Badel area to go and sell. We did not use any knife or dagger to stab anybody in that boat. We used to see the driver of the boat when Samuel push into the sea carrying Gendarmes to seized people’s boats and goods. When we got to Abasibiye fishery port at night time they suspected us to be their enemy as they were having war with another village there. They arrested us until we gave them N2,500.00 before they left. On 26th September, 1993 we reached Abasikolo fishery port and Samuel said that he wanted to see his brother and to buy fuel. When we anchored the boat and went to his brother’s house named Premier Mekulehin we were given food to eat. While there, the Chief of Abasikolo send a messenger to Premier that he should come with his strangers and we all went to the Chief’s house. When we were questioned about our movement, we told them that we collected our boat from some people at Abana and pushed the owners into the sea and that we were passing through this territory to Bendel. They suspected us to be those who used to come and collect their engines in the sea and we told them that we were not the one. The Chief sent for policemen who come and arrested us and took us to Kular police post where we made statements.
From there, they carried us to Abonima Marine police station where we also made statements and the boat carried us to Abonima. While at Abonima the police came from Oron on investigation where the owner of the boat was identified. The owner also came and identified the boat at Abonima Marine police Jetty. While at Abonima we were informed that the driver of the boat which Samuel push into the sea died. From Abonima we were taken to State C.I.D. Port Harcourt from where we were taken back to Ewang where we made statements. While we were at Ewang police cell we were informed that the boat was handed over to the owner whose name I do not know at Abonema. We used the remaining N1,000.00 for feeding. It was not N20,000.00 that we picked from the boat. This is my statement. Sgd. Andrew Ayedatiwor.”
In my humble view Exhibits “1” corroborates the evidence of Pw2 in this circumstance. In Jua vs. State (2010) 2 MJSC 152 at 176 paragraph “G” to page 177 paragraphs “A” – “E” Niki-Tobi, JSC held as follows:
“That takes me to the failure of the prosecution to produce the corpus delicti. Learned Counsel for the Appellant made so much weather of it. It is not in all cases where the corpus delicti is produced to secure conviction of an accused person. It is not the law that an accused person must be discharged and acquitted if the body is not produced for medical examination. The law knows that there are instances and circumstances where an accused person takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly, where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is a nexus between the accused and the killing of the victim to the extent that the law comes to the conclusion that it is the accused person who killed the deceased.
In Babuga vs. The State (1996) 7 NWLR (Pt.460) 279 at 296; Onu, JSC said
“As a matter of fact conviction can properly be secured in the absence of a corpus delicti where there is a strong direct evidence. It is true that the body of the deceased has not been recovered, but it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.”
I should add here that an accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessarily be direct. There is enough evidence that the body of Constable Rotimi Jeremiah was burnt. How then can the corpus delicti be found.”
On the effect of a confessional statement his Lordship held at page 177 paragraph “F” to page 178 paragraphs “A” to “C” as follows:
“I should also take the confessional statement of the Appellant. Although the Court of Appeal rejected the confessional statement of the Appellant, the Court accepted the oral confession to the crime by the Appellant. The Court of Appeal said:
“I agree with the learned trial Judge that the Appellant had admitted commission of the crime orally to those who arrested him initially before he was ever transferred to the SHB at Ilorin where the Pw5 recorded the retracted statements in writing.”
The best evidence for purposes of conviction is confession to the commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act. In this case, the Court of Appeal rejected the confessional statement but accepted the oral confessional made by the Appellant to the police. A conviction on the oral confessional is proper in law.Although learned Counsel faulted the witnesses for the prosecution, I am of the view that they gave inculpatory evidence which justifies the conviction of the Appellant and the subsequent confirmation of the conviction by the Court of Appeal. There was not enough cross-examination to destroy the veracity of the evidence of the witnesses. The appeal fails. The Appellant has to face the gallows. The appeal is dismissed.”
Both statements are very much identical and detailed. I endorse his Lordship’s observation at page 124 lines 14-16 of the printed record where he held that:
“I must observe that the learned Defence Counsel did not raise any issues concerning these Exhibits “1” and “2” and indeed did not appear to reckon with the said exhibits.”
A trial within trial was conducted by his Lordship in the lower Court to determine the voluntariness of the extra-judicial statement of the 1st and 2nd accused before they were admitted as Exhibit “1” and “2”. See pages 52 – 54 and 55-56 lines 1-4 of the printed record. At no time did the accused persons adduce any evidence to disparage or discredit the contents of Exhibits “1” and “2”. The oral evidence of the 1st and 2nd accused persons in their defence was a total denial of Exhibits “1” and “2”; a complete retraction of what each had separately, voluntarily and independently written when the facts were fresh in their minds. They had made a clean brest of their heinous and cruel crime to mankind. I endorse his Lordship’s observation at page 125 lines 8 to page 129 lines 1-10 of the printed record where he held as follows:
“Against the backdrop of this principles stated above, the duty of a Court confronted with a confessional statement is to consider all the circumstances under which it was given and to decide what weight is to be attached.
The first notable fact is that the Exhibits “1” and “2” though belonging to two different accused persons appear to contain very similar description of the events, location, time and various incidence that took place prior to the incident in question and thereafter. It is striking to note that though this accused persons did not say that they both sat together to narrate the events, both Exhibit “1” and “2” appear to corroborate each other in terms of essential facts. The stories of how the Gendarmes seized their goods, the story of the plan to seize a boat that has small number of passengers, the manner or mode of execution of the plan by one of them pretending that he needs to urinate; the plan to throw the occupants into the sea; the plan to sell the boat and recoup from part of their loses, the fact of their stopping over at some point and being arrested by the police at the investigation of the villagers, etc. All appear to give credence that the story was not simply made up.
Beyond this are the little details that relate to the external facts which buttress the confession. The date of their travel was 25th September, 1993 which tallies with the date of the alleged incident as stated by the Pw1 and Pw2. They were waiting at Abana. The boat of the deceased had 4 passengers and virtually tallies with the expectation of the accused persons. They could recognized the driver of the boat as one who sometimes carried Cameroun Gendarmes to harass and seized their goods. The Pw2 said the incident took place around 11am. The accused persons said they left Abana in the boat around 12am. Pw2 said he charged them N100 each and that they were three in number. The Exhibits “1” and “2” confirm their number to be 3 and the sum charged to be N100.00 for a trip to Oron from Abana, Pw2 said they had to slow down the speed boat because one of them, the 1st accused requested that he was going to urinate. This point is confirmed in the two exhibits. The styles of attack of throwing the occupants into the sea also tallies with what the accused persons said they planned to do. They confessed that they stole some money in the boat.
In Exhibit “1” and “2” the accused stated that the police came to Abonema where they were being held there the Pw2 identified them.
In general therefore, it seems to me that the Exhibits “1” and “2” not only present similar facts but both give graphic description of the chain of unbroken events that occurred during the time in question. The accounts of the events appear to be such that could only have come from a person or persons who were actively involved in what had happened all through.
In their separate testimonies in Court, even though the accused retracted their confessions, somehow some ingredient contained in the Exhibits “1” and “2” still showed up. Only the accused persons could have know these details and supplied them at that time. For the 1st accused he still maintained his name as Segun Akinlolu. He said he is an indigene of Ogun and stays in Abeokuta. He confirms that he is a trader dealing on plastics and rubber slippers which he takes to Malabo to sell. His route of trading happens to be the same route as the one in which the incident leading to the death of the deceased occurred. Although he said in his evidence in chief that he did not know the 2nd accused person except that he met him in the boat both of them happened to travel together on the same day at the same time and in the same boat. Both were arrested coincidentally at Abonema. By some further coincidence all the other person who were supposedly arrested were released hut three of them who had never known each other were kept by the police at Abonema. The same fact is also applicable to the 2nd accused person. He was arrested at Abonema sometime in 1993 along with two other people. I do not believe the evidence of the 1st accused in Court that they were arrested at Abonema in August, 1993 and kept in custody waiting for the incident of this case to happen in September, 25th, 1993 before they were informed of their offence. I rather believe that the 1st and 2nd accused persons made the confessional statement. They had a plan and a common intention well hatched out and their opportunity come when they saw the boat of the Pw2 not having many passengers therein. It tallied with their plan. They may have been fired up by revenge against those who seem to be helping the Gendarmes. They identified the driver of this boat as one such person. The confession was quite possible as they appeared to have lost their composite and were unsettled by the very early detection by the villagers and arrested at Abonema by the police barely 24 hours after the commission of the crime. They may have been driven by frustration having lost their goods to the Gendarmes and they needed some quick cash even at the expense of human lives. Whatever their motives were it is relevant here.
Let me say this that I am well aware of the fact that the Pw2 said the accused persons first stabbed their victims before throwing them into the sea. The accused persons denied stabbing the deceased first before throwing him or them into the sea. Eventually the defence Counsel did not raise this issue it is quite appropriate as always to consider any defence that could avail the accused whether same was properly raised or not.
In this instant case, it would appear that the cause of death may not have been established. I note however that Pw2 did not say in his evidence that the deceased died of stab wounds. Indeed the autopsy report was only tendered as ID and was so marked. It was no legal evidence and the prosecution did not rely on it. In Ebenehi vs. State (2009) Vol.170 LRCN page 91 it was stressed that a Judge is permitted to infer from the facts proved and facts necessary to complete the element of guilt or innocence of an accused person.
To my mind the question of stabbing or none stabbing of the victims are neither here nor there so long as it did not form the basis of the cause of death. What was designed and premeditated upon by the assailants was to put their victims into the sea – and that they did.”
These observations are supported by the evidence on record. See Section 8, 28 and 29(1) – (5) of the Evidence Act, 2011 reads as follows:
“8(1) Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by anyone of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring for the purpose of proving the existence of the conspiracy was well as for the purpose of showing that any such person as a party to it.
(2) Notwithstanding subsection (1) of this section, statements made by individual conspirators as to measure taken in the execution or further of such common intention are not deemed to be relevant as such as against any conspirator, except those by whom or in whose presence such statements are made.
(3) Evidence of acts or statements deemed to be relevant under this section may not be given until the Court is satisfied that, apart from them there are prima-facie grounds for believing the existence of the conspiracy to which they relate.
28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
29(1) In any proceeding, a confess ion made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence in a confession made by a defendant, it 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 do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.”
The prosecution tendered Exhibits “1” and “2” in a joint trial, in the presence of the two accused persons. The learned trial Judge was merely wondering aloud why there was so much similarity in the confessional statements in Exhibits “1” and “2”. The learned trial Judge did not utilize the confessional statement in Exhibit “1” against the 2nd accused nor Exhibit “2” against the 1st accused as argued by the learned Counsel to the appellant. That is prohibited by Section 29(4) of the Evidence Act, 2011. See Adelumola vs. The State (1988) 19 NSCC (Pt.1) 465 at 473; Chuka vs. The State (1988) 7 SCNJ 226; Mumuni vs. The State (1975) 6 SC 79 and Atanda vs. Attorney-General (1965) NMLR 225. Where the evidence of a co-accused implicates the other he must be cross-examined by the opposing counsel. See Rigby vs. Wood Woodward (1957) 1 All E.R. 391. Conviction can take place on the evidence of only one eye witness. See Merohoton vs. The State (1992) 7 NWLR (Pt.254) 443 at 457; Igbo vs. The State (1975) 9-11 SC 129 at 135; Police vs. Kwasil 14 WACA 319 and Alonge vs. IGP (1959) 4 FSC 203. I am of the humble opinion that even without a post mortem report nor the recovery of the corpus delicta, the appellant was rightly convicted and sentenced to death. I agree with his Lordship in the Court below where he held at page 129 lines 21 to page 132 lines 1-16 of the printed record as follows:
“I need not say and it needs no persuasion to believe that to throw a man into an open sea is an act most likely to endanger human life with death as a probable consequence. I disbelieve any statement to the effect that the accused persons threw into the water life buoy with which the victims would use to swim. Their intention and plan was to permanently deprive the owners of the boat of their property and to sell same. They never intended the owners to stay alive and come after them for the recovery of their gain. Indeed the Pw2 said the 1st and 2nd accused persons were surprised to see him alive and expressed their shock openly.
There, also appeared to be minor discrepancies as to who attacked who or who stabbed who but the question of the Exhibits “1 ” and “2” are very clear and I accept it. But Pw1 and Pw2 agree that they and Samuel threw the occupants into the sea. When two or more persons form a common intention to prosecute an unlawful purpose (like we have in this case) in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence – See Ubiero vs. State (2005) 5 NWLR Pt.919 page 644.
At this point I remind myself again that the Exhibit “2” was received in evidence without any objection. The same Counsel who acted for the 1st accused was also Counsel for the 2nd accused person. The Exhibit “2” is a firm evidence of the 2nd accused person just as the Exhibit “1” is for the 1st accused person.
The Court is entitled to rely on the evidence of a co-accused in determining the case once the two were jointly tried – see Michael vs. State (supra).
On the whole I believe I have come to a convenient part where the question whether the prosecution has proved its case beyond all reasonable doubt could be answered. In this present case the prosecution relied on the evidence of an eye witness the Pw2. In Oyakhere vs. State (2005) 15 NWLR Pt.947 page 159 the evidence of an eye witness to the commission of a crime was described as the best evidence. In this case also the prosecution has relied on circumstantial evidence. In Ebenechi vs. The State (supra) this kind of evidence was also described as the best evidence. The prosecution tendered the Exhibits “1” and “2” as evidence in themselves and evidence of one accused against the other accused person.
In Michael vs. State (supra) the evidence of a co-accused was described as reliable for purposes of the charge. These Exhibits “1” and “2” tendered by the prosecution are the confessional statements of the 1st and 2nd accused persons as to the commission of the offence. Quoting from the description of the Supreme Court in Adio vs. State (1986) 2 NWLR Pt.24 page 581 Tobi, JSC stated:
“This Court held in Adio vs. State that a free and voluntary confession of guilt by an accused person if it is direct, positive and satisfactorily proved occupies the highest place of authentically when it comes to proving beyond reasonable doubt… After all the accused is the best person and in the best position to say whether he committed the offence or not. Although he may decide to hide the truth from the Court. If he says that he committed the offence the prosecution need not prove the offence any longer. The confession is enough proof of the offence beyond reasonable doubt.”
I therefore answer the issue No.3 of the defence Counsel in the affirmative that from all the circumstances of this case and the evidence tendered the prosecution has proved its case beyond all reasonable doubt. I so hold.
Consequent upon the foregoing, I hereby pronounce as follows:
(a) That this Court finds the 1st accused person that is to say Segun Akinlolu GUILTY as charged and the 2nd accused person namely, Andrew Ayedatiwor also GUILTY as charged under the charge No.HOR/1C/2002 for which the two accused persons were standing trial for the murder of Okon Uyeh of Udesi Akai, Mbo Local Government Area on 25th September, 1993 in the high sea of Akpa Ikang, Mbo Local Government Area. Each of the accused persons is accordingly convicted under this judgment.”
There is no substance in this appeal. I affirm the judgment of the learned trial Judge by dismissing this appeal.

MOHAMMED LAWAL GARBA, J.C.A.(DISSENTING): The Appellant was charged along with two (2) other persons; Samuel Ogunigbajie and Andrew Ayedatuwor, with the offence of murder contrary to section 319(1) of the Criminal Code, Cap 31, Vol. II, Laws of Cross River State applicable to Akwa Ibom, before the High Court of Akwa Ibom State. The Appellant was the 2nd accused and the particulars of the alleged offence were that on the 25th of Sept., 1993 at Akpa Ikang Fishing Settlement in Mbo Local Government of Oron Judicial Division, murdered one Okon Uyeh of Udesi Akai Ali village.
The State called two (2) witnesses in proof of the charge and the Appellant testified in self defence as DW1 and after hearing final addresses from the learned counsel for the parties, the High Court, in the judgment delivered on the 27/10/2009, convicted the Appellant for the offence charged. The Appellant was sentenced to death and this appeal is against that decision. The notice of appeal was filed on 4/10/2010 pursuant to the extension of time to appeal granted by the court on that day, and contains six (6) grounds.
In line with the requirements of Order 18, Rules 2 and 4 of the Court of Appeal Rules, 2011, learned counsel for the parties to the appeal filed briefs of argument as follows: Appellant’s brief was filed on the 19/12/13 and the Respondent’s brief was filed on the 23/1/13. Mr. Sonny O. Wogu, Esq., counsel who settled the Appellant’s brief had distilled a single issue for decision in the appeal at page 11 of the brief. It is thus:-
“Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.”
The same issue, couched in slightly different form, was formulated by Mr. C. J. Udoh, Deputy Director, Public Prosecution, Ministry Of Justice, Akwa Ibom State, at paragraph 3 of the unpaged Respondent’s brief which in all, is of three (3) pages.
In his submissions on the issue, the learned counsel for the Appellant, citing inter alia, the cases of Uguru v State (2002) 9 NWLR (771) 90 at 106 and Gira v State (1996) 4 NWLR (443) 375, had said for the prosecution to succeed on a charge of murder, it had to prove beyond reasonable doubt, the following:-
i) the death of the deceased; and
ii) the act or omission of the accused caused the death; and
iii) that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence;
According to learned counsel, there was no evidence before the High Court to prove any of the above essential elements of the charge against the Appellant and the conviction by that court was founded on the following fundamental errors:-
“i) Erroneous reliance on the purported confessional statement of the Appellant.
ii) Reliance on the confessional statement of a co-accused.
iv) Overlooking the absence of proof of an essential element of the offence of murder.
v) Reliance on the evidence of a tainted and unreliable witness.
He submitted on (i) above that by Section 29 of the Evidence Act, 2011, a confession is only admissible where it was voluntarily made but that the High Court contrary to this position, admitted the Appellant’s statement as a confession in spite of the credible and unchallenged evidence of oppression. It was the contention of counsel that the High Court had sought to pick and chose which part of the statement to accept, again contrary to the law. He said the law is that the statement of an accused person must be taken as a whole, relying on statement by Brett, (Ag. CJF) in the case of R v Itule (1961) NSCC, 221 at 224, and that a party who tendered a document in court cannot disassociate himself from a portion of the document and claim the other part, citing A-G, Enugu State v Avop Plc (1995) 6 NWLR (399) 90 at 120. Learned counsel referred to page 129 of the record of the appeal where the High Court was said to have erroneously dissected the Appellant’s statement in order to rely on parts favourable to the Respondent. The statement was said by counsel to have been wrongly admitted also.
The submission by counsel on (ii) above are that the High Court erred in law to have used the confessional statement of a co-accused to verify, authenticate and/or ascribe weight to the purported confessional statement of the Appellant and referred to page 125 of the record of the appeal. It was his further submission that the law is that an accused’s confessional statement as to his participation in a crime is not confession for his accomplices and cited the cases of R v Aganni (1936) 3 WACA, 3 and Mbang v State (2009) 18 NWLR (1172) 140 at 159 where Onnoghen, JSC said:-
“An accused making a confessional statement as to his participation in a crime is not confessing for his accomplices. A man’s confession is only evidence, against him and not against his accomplices and it is a misdirection which may lead to the quashing of the conviction to omit to warn a jury or assessor of this fact.”
Counsel argued that in the Appellants’ case, the High Court’s decision as to whether or not to rely on the Appellant’s statement which it used to convict him eventually, was influenced by the comparison of the statement with that of the 2nd accused, contrary to the !aw, further citing Ozaki v State (1990) 1 NWLR (124) 92 at 113.
Learned counsel then argued on (iii) above that the entire evidence of the Respondent before the High Court woefully failed to establish the death of Okon Uyeh, which was an essential element of the charge against the Appellant, Reference was made to Section 319 of the Criminal Code and the case of Damina v State (1995) 8 NWLR (415) 573 at 537 and it was submitted that there was no evidence to establish that the body examined by a doctor who was not called as a witness, was that of the deceased. Also that the person who identified the deceased to the doctor was not called as a witness at the trial. Counsel pointed out that PW1, who was the Investigating Police Officer (IPO) and who did not know the deceased, had testified at page 41 of the record of appeal that the corpse of the deceased was found about two (2) weeks after the alleged crime was committed. He submitted that there was no evidence that the decomposed remains, on which post mortem was carried out was duly identified as that of the person allegedly murdered by the Appellant since no member of the unidentified search party which recovered the body was called to give evidence on the conditions of the body and that it was that of the deceased. According to counsel, from the evidence before the High Court, there was a mix up as to who the deceased in question was as PW1 had referred to him as the driver of the speed boat. He said the High Court had acknowledged that the cause of death was not established when it said at page 128 of the record of appeal that:-
“In the instant case, it would appear that the cause of death may not have been established. I note however that PW2 did not say in his evidence that the deceased died of stab wounds.”
It was the case of counsel that PW2 said nothing about witnessing the death of the deceased and did not see the corpse as he was only informed of its recovery while on admission in hospital. In further argument, counsel said neither the Appellant nor the co-accused confessed to murder in their alleged confessional statements on which the High Court placed so much reliance and he urged us, on the authority of Alabi v State (1973) 7 NWLR (307) 511, to hold that the evidence before the High Court did not establish an essential element of the offence the Appellant was charged with and that the prosecution had failed to prove it beyond reasonable doubt.
Learned counsel for the Appellant then submitted on the (iv) that the High Court relied on evidence of PW2, who is a tainted witness without the necessary caution and corroboration. He said, on the authority of inter alia, Ishola y State (1978) NSCC 499 at 509 and Ifejirika v State (1999) 3 NWLR (593) 59 at 77, that a tainted witness is a witness who though not an accomplice, may have a purpose of his own to serve. It was contended that the evidence of such a witness is required to be treated with considerable caution by trial courts which should be wary in relying on it without some corroboration. The case of Agbanyi v State (1995) 1 NWLR (361) 1 was cited on the submission and it was said that PW2 had a case to answer as he was the 1st suspect in the case of the missing boat and engine and so had his own interest to serve. Counsel said in the circumstances of the case, the High Court should have rejected the evidence of PW2 completely as it contained inconsistencies which it had no competence to pick and choose the correct versions, relying on Sowemimo v State (2004) 11 NWLR (885) 515 at 532. He maintained that apart from the tainted evidence of PW2, no one saw the Appellant attack the deceased as the evidence of PW1 did not link the Appellant with the offence charged. We were urged to resolve the issue in favour of the Appellant and hold that the Respondent did not prove the charge of murder against him beyond reasonable doubt because there were reasonable doubts about the identification of the deceased and the use of inadmissible evidence, which should be resolved in favour of an accused person as required by law. The case of Oladele v State (1993) 1 NWLR (294) 307 was relied on and we were urged to allow the appeal, set aside the judgment appealed against and discharge and acquit the Appellant.
The learned counsel for the Respondent also cited cases on the elements of the charge of murder which the prosecution must prove beyond reasonable doubt and submitted that there was ample evidence that Okon Uyeh was one of the passengers of the speed boat on the date in question and that he was pushed in the river and was subsequently found dead. He said the evidence of PW2 was not challenged under cross examination and cannot be controverted at this stage, citing among others, Offorlete v State (2000) FWLR (12) 2081 at 2088 and that there is no challenge on the finding by the High Court on the evidence. It was further submitted that death of the deceased could be established in law even without medical report on the authority of Usufu v State (2007) 3 NLR (1020) 94; Effiong v State (1998) 8 NWLR (562) 362; Afolalu v State (2011) 194 LRCN 136 at 147. Learned counsel said the evidence of PW2 identified the Appellant and the role played by each of them in the course of the commission of the crime and so it did not matter what each of them did in furtherance of the crime when they were seen to jointly pursue their criminal intention, relying on among other cases; Ogbu v State (2007) 5 NWLR (1028) 635. It was also submitted by the Deputy Director, Public Prosecution that before admitting the Appellant’s statement, the High Court had conducted a trial within trial and that it had the power to convict on a retracted confessional statement if satisfied that the accused made it and of the circumstances which make it credible. Reference was made to Haruna v Attorney General, Federation (2012) 209 LRCN 70 and Oseni v State (2012) 208 LRCN 151 at 154 and it was contended that the inconsistency rule does not apply to an accused’s person exjudicial statement which is inconsistent with his evidence in court. It was then submitted that failure to call a particular witness is not fatal to the case of the prosecution so far as the case can be proved with evidence of other witnesses and the case of Afolalu v State (supra) was cited.
We were urged to uphold the judgment of the High Court and hold that the prosecution had established the case against the Appellant beyond reasonable doubt.
Section 319 of the Criminal Code under which the Appellant was charged for the offence of murder, has the following provisions:-
“319(1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.
(2) Where an offender who in the opinion of the court had not attained the age of seventeen years at the time the offence was committed has been found guilty of murder such offender shall not be sentenced to death but shall be ordered to be detained during the Governor’s pleasure and upon such an order being made the provisions of Part 44 of the Criminal Procedure Law shall apply.
(3) Where a woman who has been convicted of murder alleges she is pregnant or where the judge before whom she is convicted considers it advisable to have inquiries mad as to whether or not she be pregnant the procedure laid down in section 376 of the Criminal Procedure Law shall first be complied with.
The offence punishable by the above provisions, i.e. murder was defined in Section 316 of the code in the following terms:-
“316- Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:-
If the offender intends to cause the death of the person killed, or that of some other person;
If the offender intends to do the person killed, or to some other person, some grievous harm;
If, death is caused by means of an act done in the prosecution of an unlawful purpose, which act is such a nature as to be likely to endanger human life;
If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
If death is caused by administering any stupefying or over pouring things for either of the purposes last afore-said;
If death is caused by willfully stopping the breath of any person for either of such purposes; IS GUILTY OF MURDER.
In the second case, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person.
In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
Concisely put, the offence of murder by the above provisions, is the unlawful killing of a person in any of the situations or circumstances enumerated therein, by another.

The learned counsel are right that the essential elements that must be established in order to prove the offence of murder and secure a conviction before a court of law, have been set out in several judicial authorities of the Supreme Court. For instance in the very recent case of Bright v State (2012) 1 – 2 MJSC, 35 at 61 the apex court had restated the essential elements that must be proved by the prosecution, beyond reasonable, for a charge of murder. This is what it said:-
“In a charge of murder, the prosecution is required by law to prove the following:-
a) That the death of a human being actually occurred;
b) That such death was caused by the accused;
c) That the accused person’s act resulting in the death of the human being was done with the intention of causing death or grievous bodily harm;
d) That the accused know that death would be a probable, not just likely, consequence of his act. See the State v Danjuma (1996) 8 NWLR (Pt. 469) 660 at 668; Kada v The State (1991) 22 NSCC (Pt.11) 592 at 598.”
See also Akinfe v State (1988) 3 NWLR (85) 729; Akpan v State (1994) 9 NWLR (368) 347; Idemudia v State (2001) FWLR (55) 549 at 564; Okon v State (1988) 12 SCNJ, 191.

By the provisions of Section 138(2) of the Evidence Act, 2004 (applicable at the time of the trial) now Section 139(2), of the 2011 Act, the burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 141 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue. Section 138 (1) provides for the standard of proof required in respect of the commission of a crime when it provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. Thus, by the combined provisions of Sections 138(1) and (2), the prosecution which alleges and charges any person with the commission of a crime before a court of law, bears the legal burden of proving the crime alleged, beyond reasonable doubt, if it is to secure a conviction for the crime. In criminal law and procedure, this position of the law is now firmly established such that it has become elementary in judicial practice since it is based on the constitutional presumption of innocence in favour of a person accused with the commission of a crime before a court of law. Section 36(5) of the 1999 Constitution, provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. On the basis of the constitutional and statutory provisions in the Evidence Act, the courts have laid down in the law that the burden of proof imposed on the prosecution is the legal duty to adduce cogent and sufficient evidence to prove all the essential elements or constituents of the offence alleged so as to eliminate any reasonable doubt as to the commission of the offence by the person charge or accused. It is also the law that the burden of proof in trials for criminal offences lies and remains with the prosecution throughout and until it is discharged as required by law to the satisfaction of a trial court, the person charged would be entitled to be discharged of the offence he was alleged to have committed. See Oteki v Attorney General, Bendel State (1986) 2 NWLR (24) 648; Onafowokan v State (1987) 7 SCNJ 238; Nwosu v State (1998) 8 NWLR (562) 433; Adisa v State (1991) 1 NWLR (168) 490; Wanke v State (1986) 4 CA (Pt. 11) 297; Shande v State (2004) ALL FWLR (223) 1955; Igabele v. State (2006) 6 NWLR (975) 100; Ifejirika v State (supra). Where any of the essential elements of the offence charged was not proved beyond reasonable doubt by the evidence of the prosecution, an accused person is entitled in law, to be discharged and acquitted of the offence, See Kalu v State (1988) 4 NWLR (90) 503; Iortem v State (1997) 2 NWLR (490) 711; Nwodo v State (1991) 4 NWLR (185) 341; Igabele v State (2000) ALL FWLR (311) 1797.

The proof beyond reasonable doubt required of the prosecution in criminal trials does not mean proof which is beyond all shadow of doubt or to the hilt which attains the status of exactitude or certainty in all cases. Although certainty has been held to be an essential element in criminal liability in the case of Uyo v Attorney-General, Bendel State (1986) 1 NWLR, 418, the law is also settled that if the evidence is so strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable, the case is proved beyond reasonable doubt. In the case of Dibie v State (2007) 3 SC (Pt. 1) 176, Tobi, JSC had put the position of the law thus:-
“Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubts. The moment the proof of the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the men rea or the actus reus or both, the prosecution has discharged the burden placed on it by Section 138(3) of the Evidence Act”.
In earlier case of Queen v Onotoriuwa (1964) MNLR, 4, it was held that proof beyond reasonable doubt does not mean proof beyond all doubt, Similarly, in the English case of Miller v Ministry of Pensions (1947) 2 ALL ER, 372; one of the cases from where the phrase draws its foundation, Denning, J. (as he then was) had commented on the nature of requirement of proof beyond reasonable doubt by saying that-
“It needs not reach certainty, but it must carry a high degree of probability.”
Finally, on the point, Oputa, JSC, in the case of Bakare v State (1987) 1 NWLR, 519 at 587 had said that –
“Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probabilities.”
See also Alkalezi v State (1993) 2 NWLR (273) 1; Onakoye v FRN (2002) 11 NWLR (779) 595; Agbo v State (2006) 6 NWLR (977) 545; Uwagboe v State (2007) 6 NWLR (1031) 606.

In deciding whether the prosecution has discharged the burden as required by the law in line with the above principles, a trial court usually considers the evidence adduced by the prosecution and the accused person in respect of the essential elements of the offence charged, alongside each other, If after a careful and fastidious assessment and evaluation of the evidence adduced by the prosecution, it is found to be so strong as to compellingly and irresistibly point to the guilt of the accused person, then the case has been proved beyond reasonable doubt against him and can safely be convicted of the offence charged. However, it would be wrong to say that the case of the prosecution has proved beyond reasonable doubt without or before a consideration of the evidence adduced or case put forward by an accused person at the trial, side by side. The totality of the evidence adduced by the prosecution and the accused person must be considered and properly and fully evaluated by a trial court before it can properly decide whether or not a charge is proved beyond reasonable doubt, always bearing in mind that the burden of proof is on the prosecution. See Nwogu v State (1961) ALL NLR 207; Nwokarafor (44) WACA, 221; Nwankoala v State (2006) 14 NWLR (1000) 663 at 685.
Having laid the above foundation, what the law requires of the Respondent in the case against the Appellant was that it proves all the essential elements of the offence of murder set out earlier in order to prove the guilt of the Appellant. The law allows the Respondent to do so by any, some or all of the following ways:-
a) the confessional statement of the Appellant, See Ekpenyong v State (1991) 6 NWLR (200) 683; Aremu v State (1991) 7 NWLR (201) 1,
b) the evidence of eye witnesses or direct evidence. See Lori v State (1980) 8 – 11 SC, 81; Emeka v State (2001) 6 SCNJ 259,
c) by circumstantial evidence, See Igabale v State (2006) 25 NSCQR, 321 (also supra); Johsua v State (2010) 1 WRN, 41; Nwaeze v State (1996) 2 NWLR (428) 1.
From the record of the appeal, it appears that the Respondent had used the evidence of an eye witness; PW2 and the confessional statement of the Appellant; Exhibit 1, in the discharge of the burden to prove the guilt of the Appellant at the trial. The Appellant was found guilty and convicted by the High Court for murder on the basis of the evidence of PW2 and the said confessional statement of the Appellant.
I intend to consider the points canvassed by the learned counsel in line with the essential elements of the offence charged in the determination of the issue whether the evidence adduced by the Respondent had proved it as required by law; i.e. beyond reasonable doubt.
The learned counsel for the Appellant, as may be recalled, has argued that the 1st essential element of murder, i.e. the death of the deceased, has not been proved as required by law; beyond reasonable doubt. It was his case that the body examined by the doctor for post mortem, was not shown to be that of the deceased.
What was the evidence on the identification of the body on which the post mortem was performed and the finding of the High Court on it? PW1, Sgt. Edward Agabi, the Investigating Police Officer (IPO) who investigated the case at Ewang, Mbo Local Government Area, had testified on the identity of the deceased in his evidence in chief, which appears at p.41 of the record of appeal as follows:
“The name of the deceased was one Eteyen and one Okon Uye. We were able to recover the corpse of Eteyen and taken (sic) to the hospital but the corpse of Okon Uye was not found immediately until about 2 weeks later, I took both corpses to the hospital on different days.”
Then at page 56 of the record of the appeal, PW1 had said that:-
“After recording the statement from the accused person, I met the relatives of the deceased. We convened a search party and found the corpse of the deceased. We took the corpse to the Hospital and relevant forms were served on the Doctor.”
On his part, PW2, who was the eye witness to the incident leading to the charge against the Appellant had said in respect of the identity of the deceased at pages 61 – 62, of the record of appeal, that:-
“Sworn on the Bible and states in English. My name is Bassey John Effiong. I live in Bakasi which has been handed over to Cameron. I sell clothing materials as my business. I know the two accused persons. I know the PW1 the police officer who handled this case. On 29th Sept., 1993 we were returning from Cameron by flying boat. We were together with my driver while I was the conductor. There was also an Igbo boy whom I took to Cameron. My boat driver was by name Eteyen. We branched Abana to look for passengers. There we saw three passengers who said they wanted to go to Oron. The two accused person here in the dock and one other person where these 3 passengers. They knew me very well. I have not seen the third person. The said he has died. These three passengers priced me N100.00 each to come to Oron and they entered the boat. Coming on the mid sea the 1st accused person said he wanted to urinate, that I should slow down the boat, when the driver slowed down the 1st accused brought out a knife and stabbed my driver. I was in front. My driver shouted. The 2nd accused person was staying close to me. Immediately the 1st accused person stabbed the driver that is now reported dead, the person held me an throw me into the water. There was one old man whom we also carried. The 2nd accused person stabbed that man, In fact when that other man held me, I had to jump into the water. Two people were stabbed and throw (sic) into the water that my driver and the old man named Mr. Okon Uye.
After about 4 days the corpse were recovered. I was in hospital and my brother came and told me that the corpses have been recovered. Post mortem was conducted on the corpses.”
The sum of the evidence by the two witnesses in the above portions of their testimonies is that two people, Eteyen, the boat driver and Okon Uye, the old man on the boat, were stabbed with daggers/knife and thrown over- board into the sea on the 25/9/1993. That the corpses were recovered and taken to the hospital for post mortem examination with the help of the relatives. The post mortem report was however not put in evidence by the prosecution as part of its case against the Appellant, but tendered for identification purposes only,
The Appellant in the statement which was admitted in evidence as Exhibit 1 had stated they (he along with the two other accused persons initially charged) had pushed the occupants of the boat overboard into the sea on the date mentioned by PW2. No name was mentioned. In his oral evidence, the Appellant had flatly denied committing the offence he was charged with, to with; killing one Okon Uyeh and maintained that he did not confess to the crime. No evidence at all was elicited during cross examination on the name or identity of any of the people said to have been pushed overboard by the Appellant as contained in Exhibit ‘1’.
Taken together, can the above evidence of PW1, PW2 and the confessional statement admitted in Exhibit ‘1’ alongside the evidence of the Appellant be said to have proved the death of Okon Uyeh beyond reasonable doubt as required by law? Put another way, is the totality of the evidence on the death of Okon Uyeh adduced by the prosecution so strong as to only leave a remote possibility in favour of the Appellant which can easily be dismissed with the casual wave of the hand that the death of the deceased was possible and not in the least probable?
I have noted that the PW1 did not say that he knew Okon Uyeh before the incident and when the case against the Appellant and other accused persons was assigned to him to investigate. He did not say in his testimony that he identified the body said to have been recovered two (2) weeks after the incident leading to the charge against the Appellant or 4 days thereafter, as claimed by PW2 in his evidence, was that of Okon Uyeh. None of the relatives who PW1 claimed to have used or organized as a search party, was called to testify as to whose body was recovered during the search if any was conducted at all.
PW2, the eye witness, did not claim to have known the “old man whom we also carried” before the date of the incident but who he later named Okon Uyeh. PW2 was not part of the search party that allegedly recovered the corpse two (2) weeks or 4 days after the incident and did not even see the corpse when it was recovered. So there was no evidence whatsoever before the High Court that either PW1 or/and PW2 knew the person the accused was alleged to have killed in the charge before the date of the incident so as to know his name was Okon Uyeh. None of them identified the body recovered as that of Okon Uyeh.
In Exhibit ‘1’, the Appellant did not mention the name of any of the passengers said to have on the boat at the material time and did not admit that there was an old man on board or that he stabbed anyone of the people thrown overboard into the sea. He in the circumstances, cannot be said to have confessed to the death of Okon Uyeh the person he was alleged to have killed in the charge. The evidence of the prosecution did not either directly or by cogent and compelling circumstances, prove beyond reasonable doubt that Okon Uyeh has in fact died or is dead. It should be noted that what is required of the prosecution in the charge against the Appellant was evidence that is unequivocal, cogent and beyond reasonable doubt that Okon Uyeh was in fact dead or has died in the incident leading to the charge against him. In my view, evidence that any one or somebody, or a person or human being might have or actually died during or as a result of the incident, would not be cogent and credible evidence that Okon Uyeh, the person the Appellant was alleged to have killed, actually died without demonstrating that he was in fact the one or among the persons who died. It must be noted that the Appellant was not just charged with killing any person but specifically the one named in the charge against him. This is not a simple case of absence of corpus delicti where the fact of the death of the deceased was proved beyond reasonable doubt by the evidence before a trial court against an accused person. The nature of the evidence required even where the corpse was not found was recently re-stated by Tobi, JSC, in the case of Jua v State (2010) 4 NWLR (1184) 217 at, thus:
“A court may still convict an accused person of murder even though the deceased’s body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. However, before the accused person can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt.” (underline provided for emphasis). The principle is that the fact of death of the person the accused was alleged to have killed or murdered in the charge, has to be proved beyond reasonable doubt by the evidence of the prosecution. Where fact of the death of the person named in the charge was not proved in such a way as not to leave any reasonable ground for doubt, then the question of corpus delicti would not arise because there has to be death first, before there can be a corpse or dead body.
The Appellants’ case by the evidence of the prosecution, is worse than mere absence of corpus delicti. It is one which did not fix the person the Appellant was alleged to have killed in the charge, at the scene of the alleged crime at the material time, There was no credible, compelling and cogent evidence that Okon Uyeh, named in the charge as the person killed by the Appellant was one of the people on the boat at the material time. PW2, the said eye witness, as stated earlier, did not know “one old man we also carried” before the date and did not see the body of the old man or see the Appellant kill the old man, who he later called Okon Uyeh in evidence after he was given that name by PW1, the IPO. The IPO himself did not disclose how he came by the name Okon Uyeh since he did not know him to know that he had died or was killed by the Appellant. Exhibit 1 did not show beyond reasonable doubt that the person named in charge against the Appellant is dead or has died. In the very serious charge of murder, 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 person named in the charge but that it actually did. See Uguru v State (2002) 9 NWLR (771) 90; Audu v State (2003) 7 NWLR (820) 516. In the case of Kada v State (1991) 8 NWLR (208) 134, the Appellant was charged with the offence of culpable homicide punishable with death under section 221(b) of the Panel Code and the evidence of the prosecution was that the Appellant struck the deceased on the head with a cutlass. There was evidence that the deceased did not die on the spot but there was no evidence of when and to which hospital the deceased was immediately taken. The medical doctor testified that he performed a postmortem examination on the deceased some 15 days after the alleged offence was committed by the Appellant but he also stated in his evidence that the nature of the injury he found on the deceased could not have sustained him for than a day. There was also no evidence of the identification of the deceased to the medical doctor.
The Appellant confessed to hitting the deceased but pleaded provocation. The trial court convicted the Appellant and his appeal to this court was dismissed and the decision by the trial court affirmed. On further appeal to the Supreme Court, the appeal was unanimously allowed by the apex court which held inter alia, that the failure to identify the body examined by the medical witness as the one found by the other witnesses was fatal to the conviction, citing R v Laoye (1940) 6 WACA, 6. At page 154, paras D-E; Olatawura, JSC, had stated that:-
“There is a world of difference between failure to identify the body of the victim to the doctor and the absence of the body. In this case, the failure or omission to state the name of the person who identified the corpse leaves an undesirable gab in the case of the prosecution.”
Then at paragraph E-G, the learned jurist concluded that:-
“Where A is accused of killing B where the body is found, there must be evidence to show that he was indeed the person killed and this must be done by a witness who knew him when he was alive; Okoro v State (1988) 5 NWLR (Pt. 94) 255. The time-honoured sentence that in all criminal cases the prosecution must prove its case beyond all reasonable doubt governs all criminal trials so as to avoid a miscarriage of justice.”
Nwokedi, JSC, then cautioned at page 163, paragraph E-G that:-
“In our system of jurisprudence the appellant must be convicted on legal evidence i.e. evidence admissible in law to prove the charge against the appellant. Here two ingredients are paramount- that the Appellant inflicted an injury or wound on the deceased and that the said injury or wound caused the death of the deceased. Sentiments should not be allowed to becloud the issues. Where the police have handled the investigation of a case most ineptly and the prosecution’s case deficient of material particulars, it would be unfortunate to discharge and acquit the accused, but to discharge and acquit is the duty incumbent on the court. ”
The deceased in the case was a person known to have been struck by the Appellant on the head with a cutlass and the Appellant confessed to the charge, but because there was no cogent evidence of whose body was found and examined by the medical witness, the conviction of the Appellant was quashed by the apex court and he was discharged and acquitted of the charge.
In this appeal, the evidence is worse like I stated before now, since there is no evidence which fixed the person alleged to have been killed by the Appellant on the boat by a person who knew him or evidence that “one old man who we also carried” had died and his body was identified by a person who knew him as Okon Uyeh. Neither PW1 nor PW2 knew any of the people said to have been passengers on the boat before the date of the incident and none of them identified any of the bodies allegedly recovered by a search party, to be that of the person named in the charge against the Appellant. In my firm view, the evidence of the prosecution fell short of proving beyond reasonable doubt that the person named in the charge has died or killed by the Appellant for it leaves a reasonable doubt to linger as to the fact of the death of that person.
In the absence of the evidence of the relatives who were said to have assisted in the recovery of the corpses and who identified them and a medical evidence on the conditions and cause of death of the people whose corpses were recovered by PW1 and taken to the doctor for examination, the prosecution’s evidence did not even on the balance of probabilities, prove that Okon Uyeh has died or is dead.
The evidence is tenuous, feeble, ineffectual, weak and insufficient either as direct or circumstantial, to prove beyond reasonable doubt that specifically the said Okon Uyeh has died or is dead. The evidence is not of the quality that can be described as of high degree of probability. The evidence leaves reasonable doubt in my view, in proving that the person named in the charge had died or is dead, which the law requires that should be resolved in favour of the Appellant who enjoys and is entitled to the constitutional presumption of innocence until proved guilty as required by law; beyond reasonable doubt, See Onafowokan v The State (1987) 7 SC, 238; Oduneye v State (2001) 1 SC (Pt.1) 1. I am aware of the law as stated in cases including Ndu v The State (1990) 7 NWLR (164) 550 at 571; Enewoh v The State (1990) 4 NWLR (145) 469 at 482, that identification of the deceased body is not sine qua non in all cases. My respectful view is that it is in the charge against the Appellant and its absence is fatal to the prosecution’s case.
Furthermore, as stated earlier, where the fact of death was established and it was also proved beyond reasonable doubt that an accused person is responsible by his acts/omission for that death, the accused person can be convicted even in the absence of the corpus delicti. See also Ayinde v State (1972) 3 SC, 147; Edim v State (1972) 4 SC, 160; Babuga v. State (1996) 7 NWLR (460) 279; Igabele v State (2006) ALL FWLR (311) 1797, (06) 6 NWLR (975) 100. The law is also trite now that where more than one persons were charged with joint commission of a crime, it is enough for the prosecution to prove that they all participated in the crime. What each of them did individually in furtherance of their common intention of committing the crime is immaterial. The fact of the common intention manifested in the execution of the common object is enough to render each of them in the group, guilty of the offence charged. See Ikemson v State (1989) 3 NWLR (110) 455; Oyakhire v State (2001) 15 NWLR (1001) 157; Nwankoale v State (2006) 14 NWLR (1000) 663 (06) FWLR. However, all these fine positions of the law become applicable only if and when the fact of the death of the person named in the charge was proved beyond reasonable doubt by the evidence of the prosecution. Without proof of the death of the person alleged to have been killed by the Appellant, the issue of the cause of the death would not arise since it is the foundation of the charge against him. I would however say that the law is now common knowledge that where the death of the person alleged to have been killed by an accused person was satisfactorily proved as required by law, then the cause of such death can be proved by evidence other than medical evidence. Medical evidence on the cause of a death is not a sine qua non in all charges of murder because where the facts and circumstances of a case as shown by the evidence before a trial court, leave no room for any reasonable doubt as to the cause of the death in question, the necessary inference can be drawn by that court on the cause of death even in the absence of medical evidence, Medical evidence in such cases becomes superfluous or even unnecessary in the ascertainment of the cause of death. See Akpuenya v State (1976) 11 SC 269 at 278; Okon v State (1975) 9-11, SC, 17; Azu v State (1993) 6 NWLR (219) 303; Oguntolu v State (1996) 2 NWLR (432) 503; Uguruo v State (2002) 4 SC (Pt.II) 13.
For reasons which I have set out above, I am in agreement with learned counsel for the Appellant that the 1st essential element of the offence of murder was not proved beyond reasonable doubt by the evidence adduced by the Respondent before the High Court, Since the requirement of the law as demonstrated earlier, is that the Respondent was to prove all the essential elements of the offence charged beyond reasonable doubt and that failure to prove any of them would entitle and result in the accused being discharged and acquitted, the unavoidable answer to the issue, in view of my finding on the proof of death of a human being, is that the Respondent had failed to prove the charge against the Appellant beyond reasonable doubt.
With the above finding, it would simply and purely be academic for me to embark on a consideration of whether or not the Respondent had proved the other essential elements of the offence of murder since the position of the law is that once the prosecution fails to prove any one of them as required by law, the consequence is that the charge is not proved beyond reasonable doubt and the accused person is entitled to be discharged in the circumstance. Furthermore, in this appeal since the foundation for the consideration of the other essential elements of the offence is absent by the failure to prove the death of the person alleged to have been killed by the Appellant, the basis for the consideration of the other essential elements which the learned counsel had canvassed in the other points raised in the briefs, would also be absent. My duty is therefore fully done and the sole issue submitted by the learned counsel for the parties for determination in the appeal has been completely and effectively determined by the finding on the first essential element of the offence the Appellant was charged with. Whatever my findings on the other elements of murder or the points canvassed by the learned counsel might be, would not change the legal consequence of my finding on the first element of the offence charged, What remains for me is to give effect and apply the established principle of law on that consequence of failure by the prosecution to prove one of the essential elements of the offence.
In the final result, I find merit in the appeal and allow it. Consequently, the judgment of the High Court delivered on 29/10/2009 in Charge No. HOR/1C/2002 by which the Appellant was convicted for the offence of murder and sentenced to death, is hereby set aside. The conviction is quashed and the sentence set aside. The Appellant is discharged and acquitted of the offence with which he was charged before the High Court.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA and I agree with his reasoning and final conclusions.
The Appellant distilled only one issue for determination which is couched thus:
“Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.”
In proving the case against the Appellant, the respondent called two witnesses and tendered Exhibit 1 and 2. To succeed, the Respondent had to prove that:
(1) The death of the deceased.
(2) The act or omission of the accused that caused the death.
(3) That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
The three accused persons charged with the murder of the deceased boarded the speed boat at Abana. The PW2 Bassey John Effiong was the conductor of that boat on that day. PW2 gave in evidence how the Appellant stabbed the driver Eteyen and threw him I overboard. The deceased was also stabbed and thrown overboard. The PW2 and one Igbo boy jumped into the water.
Even though one of the accused died in prison custody, the prosecution proved how the three accused participated in the commission of the crime which resulted in the death of Eteyen and Okon Uyeh. The three accused person had a common purpose and common intention to kill and dispossess the driver Eteyen of the boat. It is not material what each of the accused did in furtherance of their crime. See Nwankwoala Vs. State (2006) 14 NWLR pt 1000 page 663, Oyakhire Vs. State (2001) 15 NWLR pt 1001 page 157, Ikemson Vs. State (1939) 3 NWLR pt 110 page 455.
“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. Audu vs. State (2003) 7 NWLR pt 820 page 516, Uguru Vs. State (2002) 9 NWLR pt 771 page 90 R. v. Owe (1961) 2 SCNLR page 354, R v. Nwokocha (1949) 12 WACA page 453.
The courts have held that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved beyond reasonable doubt. Oforlere Vs. State (2000) 12 NWLR pt 631 page 415, Ochie Vs. State (2007) 5 NWLR pt 1027 page 214.
In the present case, PW2, the conductor of the boat they were travelling in, gave a graphic account of how the three accused persons were picked at Abana. PW2 also gave a graphic account of how the two deceased persons were stabbed and thrown overboard. A person who stabs another and throws him into the high seas must surely intend the necessary result of such an action. PW2 also testified that, when the three accused persons saw him they expressed surprise that he survived. It would be recalled that PW2 and the Igbo boy were not stabbed but jumped into the sea. If the accused persons were surprised that the persons not stabbed survived, how much more the ones stabbed. The accused persons were certain they would not come out alive.
In Odock Vs. State (2007) 7 NWLR pt 1033 page 369, the court held that
“Death is not an offence. What is an offence is murder which happens when the death of a person is caused by another person or persons by unlawful means. So what is important is what caused the death and not the fact of death”
The cause of death in any given case can be proved by direct or circumstantial evidence. See Uguru Vs. State (2002) 9 NWLR pt 771 page 90. For circumstantial evidence to ground a conviction, it must lead only to one conclusion, namely, the guilt of the accused person. The accused persons threw the two deceased over board and were never seen again alive. It was only their bodies that were later recovered.
The Appellant had argued that the Respondent had not proved that the body recovered was that of Okon Uyeh. The Appellant stabbed him and threw him overboard. He drowned and his body was later found. The Appellant intended the natural consequence of his unlawful action.
For purposes of argument the Appellant can also be convicted of the murder of Okon Uyeh if and where his body was never recovered. Igabele Vs. State (2004) 3 NWLR pt 860 page 367, Ubani Vs. State (2003) 18 NWLR pt 851 page 22, Babuja Vs. State (1996) 7 NWLR pt 460 page 279, Arichie vs. State (1993) 6 NWLR pt 312 page 757.
It is true that the evidence relied upon to establish a charge of murder may be direct or circumstantial. Which ever one, it must establish the guilt of the accused beyond reasonable doubt. Ubani Vs. State (2003) 18 NWLR pt 851 page 22, Aruna Vs. State (1990) 6 NWLR pt 155 page 125, Ozaki Vs. State (1990) 1 NWLR pt 124 page 92. The courts have held that what determines the criminal liability of an accused person in a murder case is the unlawfulness of his act which caused the death of the deceased. Audu Vs. State (2003) 7 NWLR pt 820 page 516 Ahmed Vs. The State (1999) 7 NWLR pt 612 page 641, Nwaebonyi Vs. The State (1991) 3 NWLR pt 182 page 663.
The Appellant had argued that the Respondent did not prove his case beyond reasonable doubt. It would be recalled that the two accused person made confessional statements, tendered as Exhibit 1 and 2. These confessional statements were tendered and accepted after a trial within trial. The defence Counsel as the trial Judge noted
“did not raised any issues concerning Exhibit 1 and 2”.
These confessional statements were accepted by the court as it gave a graphic synopsis as to what transpired on the day of the crime. PW2 just gave in details, what transpired in the boat. His account tallied with what the two accused persons stated in their confessional statements.
“A free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the court is satisfied with its truth of a confessions by examining it in the light of the other credible evidence before the Court” Solola Vs. State (2005) 11 NWLR pt 937 page 460, Nwaeze Vs. State (1996) 2 NWLR pt 428 page 1, Akinmoju Vs. The State (2000) 4 SC pt 1 page 64.
In the present case, the PW 2 corroborated, the confessional statements of the accused persons Exhibit 1 and 2. The absence of a post mortem report in evidence does not detract from the fact that, the prosecution proved its case beyond reasonable doubt.
For this and the more comprehensive reasoning of my learned brother, I too find no substance in this appeal. This appeal is dismissed. I affirm the judgment and conviction of the learned trial Judge.