OFONIME USUA UDOM v. THE STATE (2016)

OFONIME USUA UDOM v. THE STATE

(2016)LCN/8173(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of February, 2016

CA/C/361CB/2013

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; WHAT A CONFESSIONAL STATEMENT MUST PROVE TO ATTRACT AND SUPPORT A CONVICTION

It is the well-established legal position that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying: “…the highest place of authenticity when it comes to proving beyond reasonable doubt.” See: Mustapha Mohammed vs. State (2007) 11 NWLR (pt. 1045) 303; Dawa vs. State (1980) 8 -11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT. 11) 1; Galadinma vs. State (2012) 12 MJSC (pt. 111) 190; Fatai vs. State (2013) 2-3 MJSC (pt. 1) 145. per. ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: EVIDENCE OF A CO-ACCUSED; THE WEIGHT OF THE EVIDENCE OF A CO ACCUSED

But, if a co-accused goes into the witness box and repeats on oath what he told the police in his statement, it becomes evidence for all purposes including being evidence against a co-accused. Nonetheless, such evidence should be and is always suspiciously regarded; Enitan v The State (supra) per. ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; WHETHER THE PROSECUTION MUST PROOF HIS CASE BEYOND REASONABLE DOUBT TO SUCCEED IN PROOF OF A CRIMINAL OFFENCE AND WHAT PROOF BEYOND REASONABLE DOUBT ENTAILS

It is well settled that for the prosecution to succeed in proof of a criminal offence, there must be proof beyond reasonable doubt. Judicial authorities have established that the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. In Afolalu v State (2010) 6-7 MJSC 187, (2010) 16 NWLR (PT. 1220) 584 S.C.; the Supreme Court, per Mohammed JSC (now CJN) said: “The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576; Fatoyimbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512. In Ogedengbe v State (2014) LPELR-23065 (SC), the Supreme Court, per Fabiyi, JSC reiterated: It must be stressed here that in a criminal trial, a host of witnesses is not required by the prosecution to achieve proof beyond reasonable doubt. A single witness who gives cogent eye witness account on a vital point will suffice.” See also the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990) which provides that where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt.

The guilt of an accused person can be established by:

His direct, positive and voluntary confessional statement;
Circumstantial evidence.
Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder. See: Mustapha Mohammed vs. State (supra); Ime David Idiok vs. The State (2008) 4-5 S. C. (Pt 1) 84; Afolalu v State (supra); Emeka vs. State (2001) 88 LRCN 234.

The established legal position in a murder case is that the prosecution must prove beyond reasonable doubt the following ingredients:-

(a) That the deceased died.

(b) That the death of the deceased resulted from the act of the Appellant.

(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.

See: Abogede v. State (1996) 5 NWLR (Pt 448) 270; Ogba v. State (1992) 2 NWLR (Pt 222) 164 at 198; Igabele v State (2006) 5 MJSC 96. The Supreme Court in Edoho v State (2010) 4 MJSC (PT. 1) 1, per Adekeye, JSC, said: “In effect in order 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 person caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. Thus, where a person is attacked with a lethal weapon and he died on the spot or shortly, afterwards, it is reasonable to infer that the injury inflicted on him caused the death.” per. ONYEKACHI AJA OTISI, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A PROSECUTION NEEDS TO CALL ALL NAMED WITNESSES IN THE PROOF OF EVIDENCE

The prosecution has a duty to call such number of witnesses required to prove their case. All the named witnesses in the proof of evidence need not be called; Akpan v State (1991) 3 NWLR (PT. 182) 646; Ijioffor v The State (2001) 4 S.C (PT. 11) 1. per. ONYEKACHI AJA OTISI, J.C.A.

CRIMINAL LAW: HOMICIDE; THE MEANING OF ‘AFTERTHOUGHT’

In Festus Amayo v State (2001) 3 MJSC 181, (2001) 12 S.C. (PT. 1) 1, the Supreme Court, per Uwaifo JSC, referred to the English case of R v. Doherty (1887) 16 Cox CC 306, and, quoted, with approval, the following passage from the judgment of Stephen, J who charged the jury thus at pages 307 – 308: Murder is unlawful homicide with malice aforethought. Manslaughter is unlawful homicide without malice aforethought. First, as to the term ‘aforethought’, its meaning has been laid down clearly by Holt, C.J., who, in Reg. v. Mawgridge (Kelyng, 174) says: ‘He that doth a cruel act voluntarily, doth it of malice prepensed’, which is the same as aforethought. ‘Afore-thought’, therefore, does not necessarily imply premeditation, but it implies intention which must necessarily precede the act intended. What, then, is the intention necessary to constitute murder? Several intentions would have this effect; but I need mention only two in this case, namely, an intention to kill and an intention to do grievous bodily harm. If the act which caused death, the firing of the pistol, was done with either of these intentions, Doherty’s crime was murder. But it is difficult to see how a man can fire a loaded pistol at another without intending to do him grievous bodily harm, so that if you think that Doherty fired the pistol at the deceased’s body, intending to hit him, but taking his chances where he hit him, that would be murder, though he did not intend to kill. If, on the other hand, you think that he fired it vaguely, without any special intent at all, and by so doing caused his death, that would be manslaughter.” per. ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: PRESUMPTION; THE TEST OF THE PRESUMPTION THAT A MAN IS INTENDS THE NATURAL CONSEQUENCES OF HIS ACTS

Our law is that a man is presumed to intend the natural consequences of his acts. The test to be applied is the objective one – the test of what a reasonable man would contemplate as a probable consequence or result of his action; Adelumola vs. State (1988) 1 NWLR (Pt73) 683 S.C; Arabamen vs. The State (1972) 4 SC 35 at 44 – 45; Uyo vs. Attorney General, Bendel State (1986) 1 ALL NLR 106 at 112; Garba v. The State (2000) FWLR (Pt. 24) 1448 at 1459 -1460; Ibikunle vs. State (2007) 7 S. C. (pt. II) 32. per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

Between

OFONIME USUA UDOM – Appellant(s)

AND

THE STATE – Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Honourable Justice Stephen E. Okon, sitting at the High Court of Justice Akwa Ibom State, in the Ikot Ekpene Judicial Division, delivered on June 24th, 2013, wherein the Appellant and four others were convicted of murder of one Okon Tom Akpan contrary to Section 362(1) of the Criminal Code Cap 38 Volume II, Laws of Akwa Ibom State of Nigeria 2000, and as a result sentenced to death by hanging.

?The Appellant, who was the 3rd accused person and four others were arraigned on March 23, 2004 on a one Count charge of murder contrary to Section 326(1) of Criminal Code Cap 38 Volume II Laws of the Akwa Ibom State of Nigeria, 2011, with particulars which read thus:

Unyime George Udofia, Daniel Edet Daniel, Ofonime Usua Udom, Nsikak Usua Udom and Etim Etim Udo, on the 5th day of July, 2003 at Abiakpo Edem Idim, Ikot Ekpene in Ikot Ekpene Judicial Division murder Okon Tom Akpan.

The trial suffered a chequered history. The Appellant and other accused persons were initially arraigned on March 23, 2004 before Justice Idongesit Ntem Isua who unfortunately did

not conclude the trial. The trial commenced de novo before two other Judges but suffered the same fate. The case again commenced de novo before Honourable Justice Stephen E. Okon on July 16, 2009, who now heard and determined same.

The prosecution in proof of its case called three witnesses PW1, Emem Alphonsus Udoh; PW2, George Essien Udofia, father of appellant, and PW3, Dr. Ido Friday, a Medical Practitioner. On March 25, 2013, Sir Nsemeke Daniel, of Counsel, who appeared for the Appellant informed the trial Court that:

“The 3rd and 4th accused have nothing to say.

They have no witness.”

In other words, the Appellant did not defend the charge.

The facts of this case as can be gleaned from the evidence of the prosecution witnesses in the Record of Appeal are that the Appellant and the four co-accused persons went to the house of the deceased, Okon Tom Akpan, a drycleaner, on the July 5, 2003 in the night and deceived him into opening his door for them on the pre that one of them, Etim Etim Udo, who was the 5th accused person, needed to collect his clothes given to the deceased for dry cleaning, for use the following morning. Upon

opening the door, the Appellant and his co-accused persons, dragged the deceased out of his house, beating him with all forms of dangerous weapons such as clubs, sticks, and stabbing him with a dagger and machete. They dragged the deceased to the house of father to the Appellant, who testified as PW2 where they beat the deceased to death. They took the corpse out of the compound but abandoned the corpse on the road side and ran away after they were intercepted on the way by some villagers. The corpse of the deceased was later recovered by the police and deposited at General Hospital, Ikot Ekpene, where post mortem examination was conducted. PW1, an eye witness, had identified the Appellant as one of the persons responsible for the death of the deceased.

At the conclusion of the trial, the learned trial Judge convicted the Appellant and the four co-accused persons and sentenced them to death by hanging. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on October 8, 2013 upon nine grounds of appeal, found at pages 267 – 271 of the Record of Appeal.

?The parties exchanged Briefs of Argument. The

Appellant?s Brief settled by Emmanuel Sani, Esq. of Joe Agi, SAN & Associates on 3/2/2015, was adopted by Joe Agi, SAN on 19/1/2016. The Respondent’s Brief was settled by Comfort Udoh, Esq., Assistant Chief State Counsel, Ministry of Justice, Akwa Ibom State, on 15/9/2015 but deemed properly filed and served on 13/10/2015. I.U. Idemudo, Esq., Senior State Counsel adopted the Respondent’s Brief on 19/1/2016. The learned Silk also adopted the Appellant’s Reply Brief filed on 11/1/2016 but deemed on 19/1/2016.

Out of nine grounds of appeal, the Appellant formulated three Issues for determination as follows:

1. Whether the learned trial judge had the jurisdiction to entertain the charge and try the accused having regards to the fact that leave of the Court below was not sought before the information was preferred against the accused (Ground 1).

2. Whether the learned trial Judge took cognizance of extraneous matters and thereby reach a conclusion not supported by evidence on record and the extant laws in that regard, thus occasioning a miscarriage of justice (Grounds 2, 3, 4, 7 and 9).

3. Whether the prosecution discharged the

evidential burden of proof bestowed upon it as required by law (Grounds 5, 6 and 8).

The Respondent adopted the Issues as formulated by the Appellant for determination. These Issues shall now be considered.

On Issue No 1, It was submitted for the Appellant that Section 314(3) and Section 314(3)(b) of the Criminal Procedure Law Cap 38 Volume ii; Laws of Akwa Ibom State, 2000 had provided that:

(3) No information charging any person with an indictable offence shall be preferred unless:

(a)

(b) The information is preferred by the direction or with the consent of a Judge or pursuant to an Order made under part 31 to prosecute the person charged for perjury.

It was submitted that there was no evidence on record to show that the consent of a Judge was sought before the information was preferred against the Appellant and other accused persons. That merely writing a letter forwarding the charge to the Court was not enough. A number of authorities were relied upon to submit, in summary, that the trial Court lacked jurisdiction to entertain the information as constituted and consequently that everything done in respect of the said

information amounted a nullity.

In response, the Respondent relied on the Criminal Procedure (Amendment) Law, 2006 which abrogated the provision of the Criminal Procedure Law, 2000 requiring the Judge’s consent before filing of Information in Sections 314(3) and (b), reproduced above.

Sections 1 and 2 of the Criminal Procedure (Amendment) Law, 2006 had specifically repealed the said provisions. Section 2 in particular provides:

This Law may be cited as the Criminal Procedure (Amendment) Law 2006 and shall be deemed to have come into force on the 31st day of December, 2000.

Learned Counsel described the Law as an ex post facto law, to have a retroactive effect.

In the Reply Brief, it was contended for the Appellant that the said Criminal procedure (Amendment) Law, 2006 in its retroactive effect was unconstitutional, having regard to the provisions of Section 4(9) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

?In resolving a complaint as raised by the Appellant, which is predicated on the constitutionality or otherwise of a statute, it is essential to keep in mind the fact that this is an appellate

Court. Appeals arise from decisions of trial Courts. A proper issue for determination in an appeal must arise from a complaint as contained in a ground or grounds of appeal against the decision appealed against; Asalu v Dakan (2006) 5 S.C (PT. 111) 120; Ukiri v. Geco-Prakla (Nig) Ltd (2010) 16 NWLR (PT. 1220) 544 S.C. A statute to be shot down as being unconstitutional cannot be shot down on appeal through arguments in a Reply Brief. Be that as it may, I will briefly make few comments.

The Appellant and other accused persons took their plea de novo on 16/07/09, page 186 of the Record of Appeal. There was no objection taken at that time as to competence of the information upon which the Appellant and other accused persons faced trial. No complaint was made before the trial Court as to the noncompliance of the information with procedure. Therefore the trial Court made no pronouncement on the competence or otherwise of the said information. The position of the law is that the proper stage to bring a motion to quash an indictment is before the plea is taken; Obakpolor v The State (1991) 1 SCNJ 91, (1991) 1 S.C. (PT. 1) 35.

?Furthermore, a retroactive

law is not inevitably unconstitutional. Generally, no statute shall be construed so as to have a retroactive effect such as to impair an existing right or obligation, otherwise than as regards matters of procedure. Commenting on Sections 314 and 323 of the Criminal Procedure Law, Cap 49, Vol. 11, Laws of Bendel State of Nigeria, 1976 in Obakpolor v The State (supra), the Supreme Court, per Akpata, JSC said:

“In my view failure to comply strictly with rules such as the provisions of Sections 314 and 323, although couched in mandatory terms, will not render the proceedings null and void if they are substantially complied with and if the objective of the rules is not defeated by failure to strictly comply with them.”

See also:Afolabi v Governor of Oyo State (1985) LPELR-196 (SC) Ogiefo v Isesele (2014) LPELR-22333 (CA).

Fundamentally, a complaint of this nature can only be determined on appeal upon a decision from the lower Court, reached with the benefit of submissions from both sides on the constitutionality or otherwise of the law in issue. An appellate Court cannot otherwise determine such complaint. I see no reason to make further

comments. Issue No 1 is resolved against the Appellant.

It was contended for the Appellant that the learned trial Judge took cognizance of extraneous matters in admitting and evaluating the evidence; thereby reaching a conclusion that occasioned a miscarriage of justice. The Investigating Police Officer (IPO) was listed as a witness but was not called. Having relied heavily on the extra judicial statements, it was submitted that the IPO was a vital witness and ought to have been called to testify in rebuttal of the 1st accused’s denial. Reliance was placed on Ochiba v State (2011) 17 NWLR (PT.1277) 633 at 696; Okoroji v. State (2002) 5 NWLR (Pt.759) 21. It was further argued that the learned trial Judge failed to rely on the recommended ‘six way’ tests that trial Court should apply when a confessional statement is retracted; relying on Ogudu v State (2011)18 NWLR (PT. 1278) 1. Rather than rely on these tests, the learned trial Judge relied on his belief. It was also argued for the Appellant that the learned trial Judge did not consider all plausible defences raised by the Appellant whether arising casually or by the tenor of the evidence adduced. That, in

convicting an accused person for murder, the trial Court ought not to restrict itself only to the defences raised by the accused person but should also consider other possible defence and exculpating evidence in his favour. Reliance was placed on Ebere v State (2001) 12 NWLR (PT. 728) 617 at 635. It was further submitted that the trial Court, which relied on the extra judicial statement of the Appellant did not consider the possible defence of provocation. Learned Counsel for the Appellant also contended that the learned trial Judge had taken cognizance of previous statements and proceedings before the previous Judge that had heard the matter and was swayed in his evaluation of evidence by the said previous proceedings. The trial had commenced de novo and previous proceedings, which were not in evidence, ought not to be taken account of. It was the duty of the prosecution to place all relevant evidence before the trial Court, which the prosecution had failed to do.

?On whether the prosecution proved its case beyond reasonable doubt, it was submitted that the evidence on record revealed substantial inconsistencies in the testimony of the PW1 and the

extrajudicial statement of PW1, enough to create a doubt in the mind of the Court, even as to the identity of the assailants of the deceased. There was no cogent evidence to prove that the Appellant struck a fatal blow which killed the deceased. It was submitted, relying on Adamu v State (1991) 4 NWLR (PT. 187) 530; Chukwu v State (1990) 7 NWLR (PT. 463) 656, that where identification evidence is poor, the trial Court should return a verdict of not guilty.

In their reply, it was submitted for the Respondent that the trial Court is allowed to direct any person present to write any words or figures or to make finger impressions for the purpose of enabling the Court to compare the words, figures or finger impressions so written with any words, figures or finger impressions alleged to have been written or made by such a person; relying on Section 101 (2) of the Evidence Act, 2011. The trial Judge did not merely rely on his belief or disbelief but was first satisfied that Exhibits B and B1; and Exhibits C and C1 were, respectively, made by the 1st and 2nd accused persons. It was also submitted that the trial Court relied on the totality of credible evidence

adduced by the prosecution before he arrived at his decision.

It was further contended that the retraction of the confessional statement by the 1st and 2nd accused persons in their evidence on oath is of no moment. If the trial Court is satisfied as to its credibility, it can rely thereon to convict. Reliance was placed on Akpa v The State (2008) 14 NWLR (PT. 1106) 75 at 99. Learned Counsel further submitted, relying on Akinbisade v The State (2008) 6 LRCNCC 262 at 270, that where there is a very strong connecting link between the accused and the document to the extent that the circumstances zero on the commission of the offence by the accused person, the Court is entitled to the inference circumstantially that the accused person is the author of the document and therefore the author of the crime. The extra judicial statements of the 1st and 2nd accused persons were admitted as Exhibits, without objection by them. The right time to object to their tendering was at the point the statements were sought to be tendered, not later; relying on Nwachukwu v The State (2005) 6 ACL 336 at 367, Once a confessional statement is in evidence, it is part of the case of

the prosecution and the trial Court can act thereon.

Reliance was placed, inter alia, on Adeleke v The State (2013) 12 SCM (PT. 2) 1. The trial Court can convict even upon a confessional statement retracted by the accused person; relying on Sule v The State (2009) ALL FWLR (PT. 481) 809.

Learned Counsel for the Respondent argued that failure to call the IPO as a witness was not fatal to the case of the Respondent. It was submitted that there is no legal duty on an IPO to rebut the retraction of an extrajudicial statement by an accused person. That the presence of the IPO would only be necessary if the extrajudicial statements were alleged to have been involuntarily made. The prosecution need not call specific witnesses if not necessary; relying on Ogunjemila v Ajibade (2010) 11 NWLR (PT. 1206) 559 at 566, among other cases. Learned Counsel further argued, relying on the evidence adduced, that the learned trial Judge had applied the ?six way’ tests laid down in R v Sykes (1913) CAR 113. There was no requirement for an identification parade where the identity of the suspect is not in doubt, relying on Abudu v State (1955) 1 NSCC 78. The Court

was urged finally to dismiss this appeal as all ingredients of murder were proved beyond reasonable doubt.

“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”

See: Mustapha Mohammed vs. State (2007) 11 NWLR (pt. 1045) 303; Dawa vs. State (1980) 8 -11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT. 11) 1; Galadinma vs. State (2012) 12 MJSC (pt. 111) 190; Fatai vs. State (2013) 2-3 MJSC (pt. 1) 145.

However these arguments are not relevant in respect of the Appellant, who is the 3rd accused. It is well settled that the confessional statement of a co-accused is not evidence against an accused person who has not adopted the statement; Ozaki v State (1990) 1 NWLR (PT. 124) 92, (1990) S.C. 109; Enitan v The State (1986) 1 S.C. 50, (1986) LPELR-1146 (SC); Ohuka v

State (No 2) (1988) 7 S.C. (pt. 11) 25. But, if a co-accused goes into the witness box and repeats on oath what he told the police in his statement, it becomes evidence for all purposes including being evidence against a co-accused.

Nonetheless, such evidence should be and is always suspiciously regarded; Enitan v The State (supra)

“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138(1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial Court, that Court is left with

no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576; Fatoyimbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.?

In Ogedengbe v State (2014) LPELR-23065 (SC), the Supreme Court, per Fabiyi, JSC reiterated:

?It must be stressed here that in a criminal trial, a host of witnesses is not required by the prosecution to achieve proof beyond reasonable doubt. A single witness who gives cogent eye witness account on a vital point will suffice.”

?See also the provisions of Section 135 Evidence Act, Laws of the

Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990) which provides that where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt.

The guilt of an accused person can be established by:

1. His direct, positive and voluntary confessional statement;

2. Circumstantial evidence.

3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder. See: Mustapha Mohammed vs. State (supra); Ime David Idiok vs. The State (2008) 4-5 S. C. (Pt 1) 84; Afolalu v State (supra); Emeka vs. State (2001) 88 LRCN 234.

The established legal position in a murder case is that the prosecution must prove beyond reasonable doubt the following ingredients:-

(a) That the deceased died.

(b) That the death of the deceased resulted from the act of the Appellant.

(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.

See: Abogede v. State (1996) 5 NWLR (Pt 448) 270; Ogba v. State (1992)

2 NWLR (Pt 222) 164 at 198; Igabele v State (2006) 5 MJSC 96. The Supreme Court in Edoho v State (2010) 4 MJSC (PT. 1) 1, per Adekeye, JSC, said:

“In effect in order 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 person caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. Thus, where a person is attacked with a lethal weapon and he died on the spot or shortly, afterwards, it is reasonable to infer that the injury inflicted on him caused the death.”

PW1 was the sister in law of the deceased, who was living with him at the time of the incident. She was an eye witness to most of the events of that night. Her testimony before the trial Court is found at pages 189 – 194 of the Record of Appeal. She said:

My names are Emem Alphonsus Udoh. I live at Abiaokpo Edem Idim, in Ikot Ekpene Local Government Area. I am a seamstress. I

know the accused persons.

They are from Abiaokpo Edem ldim. I knew one Okon Tom Akpan. He was my brother-in-law. He was killed. I remember 5th July, 2003. Something happened between the late Okon Tom Akpan and the accused persons. At about 10p.m. I was sleeping in the house of Okon Tom Akpan.

Someone knocked the room door of my said brother-in-law. He asked who knocked. The person replied he was Etim Etim Udo, the 5th accused person-on-record.

My brother-in-law asked what he was looking for. He replied he wanted to get his clothes so that he could use them the following day. My brother-in-law was a dry-cleaner at Ikot Ekpene General Hospital and at home also. My brother-in-law told the 5th accused to come back the following day since it was late. The 5th accused pleaded to get the clothes because he wanted to use them the following morning. When my brother-in-law opened the door for him, I overheard him say, “what have I done to you”. I did not hear the voice again.

They strangled him and used dagger to pierce his eyes. Apart from Etim Etim Udoh, the others were Unyime George, Ofionime Usua, Nsikak Usua. I cannot remember the name of

the 5th person. He is the 2nd accused person.

I saw them because there was moon-light and NEPA light also. Where I was, was not far. I was in my room and the matter happened in the parlour close-by.

My late brother-in-law was ironing clothes in the parlour.

When I opened the door of my room and got out because of the noise, I pleaded with them to leave my in-law alone. Ofonime Usua Udom pushed me inside and pointed a gun at me and said if I talked again he was going to kill me. They locked me inside my room and continued to beat my in-law and took him away. I shouted and banged the door until the door was removed.

I then ran out of the room. As I shouted people came out.

As people tried to approach the accused persons, they threw bottles at them and threatened to kill anybody who approached them. The villagers were the people who came out. They took my in-law to the compound of Unyime George’s father and continued to beat him until he died. They inflicted cuts all over his body. They brought out the corpse from the compound. When they saw the crowd they dropped the corpse and ran away.

From my in-law’s house to the house of the

1st Accused father’s house is about 700 meters. I ran to the house of the village head of Abiaokpo Edem Idim, Chief Nana. I don’t know his full names.

I went and reported to the Village Head. He told me he had heard the commotion in the village. He asked me if I know the assailants. I told him that I know them by their faces and their names. Thereafter, the Police visited the scene that same night. They took me to the station. The brother of the deceased took the corpse to the deceased’s home. At the Police station, I made a statement to the Police. It was the 1st accused person’s father that reported the matter to the Police, because he thought it was armed robbers who operated in his compound. I mentioned the names of the accused persons in my statement to the Police. The victim of the attack was strangulated. He could only ask the assailants: “What have I done to you, if you kill me my blood will be on your head”.

The wife of the deceased had put to bed during that period and was at Calabar. I was in the deceased’s house with two little children, aged 2 and 5 as at that time.”

(Emphasis mine)

?Under cross examination at page 191 of the

Record of Appeal, PW1 said:

“I am not from the same village with the accused persons but I was brought up there… As they took the victim to the compound of George Udofia, everyone was outside that compound and saw what was going on…I knew their faces.”

PW1 thus had no doubt about the identity of the persons that she saw. She recognized the Appellant and the other accused persons clearly as the persons who dragged the deceased out of his home into the compound of the father and who beat him to death. When the evidence before the trial Court patently shows the opportunity the witness had to identify the accused as the assailant, the identity of the said accused person will not be in doubt; Archibong v State (2006) 14 NWLR (PT. 1000) 349, (2006) LPELR-537 (SC). The knowledge of the Appellant and other accused persons by PW1 made an identification parade unnecessary; Adesina v The State (2012) LPELR-9722 (SC); Ilodigiwe v The State (2012) LPELR-9342 (SC).

?PW2, the father of the Appellant, testified as follows:

“On that date, I returned to my house from work. As I was eating at about 10.30p.m, I heard a bang on my door and noise stating,

“hold him”. “hold him”- in my compound. Since the bang on the door was so loud, I ran out through the back door and took the bush track to the compound of the village Chairman, Effiok Essien Ekpo. I told him armed robbers had come to my compound…As I got to the village, I met a crowd at the village Chairman’s house.

People were crying. The people were my villagers. I saw the corpse of Okon Tom Akpan on the ground. I saw the PW1 crying and shouting. I was told those who came to my house were not thieves. They were the accused persons in this case.”

He did not witness the incident but his testimony confirmed that there was an incident of such violent dimension in his compound that he assumed he was being attacked by armed robbers and he fled through the back door. His son, the 1st accused person, was identified by PW1 as one of the persons who were responsible for the violent incident.

See pages 193 – 196 of the Record of Appeal.

?The medical report, Exhibit A, and the evidence of PW3, the Medical Doctor further confirmed the cause of death of the deceased. The said Report stated that examination of the body of the deceased revealed:

Multiple marks of violence(sic) on the body – head, face, trunks and limbs. These include – multiple laceration(sic) on the scalp and chin.

– Penetrating wounds on the left supra/infra or bilal region.

– Multiple Bruses(sic) and abrasions on the limbs and track(sic) from severe beatings and torture.

The evidence of PW3 at page 197 of the Record of Appeal is that:

“In my opinion the deceased died of several beating and torture. It must have been knife and other sharp objects that were used to inflict those injuries. Those injuries could not have been self-inflicted.

It was not as a result of an accident.

It was not as a result of a fall.”

The unchallenged evidence thus adduced before the trial Court was that the deceased died in the night of July 5, 2003. His identity was not in dispute. And, he did not die of natural causes. The evidence in particular of PW1 and PW3 reveal that the deceased met an untimely violent death by brutal beating he received.

It was argued for the Appellant that the IPO was not called to testify. Indeed I agree with learned Counsel for the Respondent that there was no absolute

requirement for this particular witness. As rightly surmised by the learned trial Judge at page 253 of the Record of Appeal, while the evidence of the IPO may be desirable, it was not necessary in the circumstance of this case. The prosecution has a duty to call such number of witnesses required to prove their case. All the named witnesses in the proof of evidence need not be called; Akpan v State (1991) 3 NWLR (PT. 182) 646; Ijioffor v The State (2001) 4 S.C (PT. 11) 1.

Even when proved that the act of an accused person caused the death of the deceased, another crucial consideration is whether that the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence; Omini vs. State (1999) 9 5.C.1. In Festus Amayo v State (2001) 3 MJSC 181, (2001) 12 S.C. (PT. 1) 1, the Supreme Court, per Uwaifo JSC, referred to the English case of R v. Doherty (1887) 16 Cox CC 306, and, quoted, with approval, the following passage from the judgment of Stephen, J who charged the jury thus at pages 307 – 308:

?Murder is unlawful homicide with malice aforethought.

Manslaughter is unlawful homicide without malice

aforethought. First, as to the term ‘aforethought’, its meaning has been laid down clearly by Holt, C.J., who, in Reg. v. Mawgridge (Kelyng, 174) says: ‘He that doth a cruel act voluntarily, doth it of malice prepensed’, which is the same as aforethought. ‘Afore-thought’, therefore, does not necessarily imply premeditation, but it implies intention which must necessarily precede the act intended. What, then, is the intention necessary to constitute murder? Several intentions would have this effect; but I need mention only two in this case, namely, an intention to kill and an intention to do grievous bodily harm. If the act which caused death, the firing of the pistol, was done with either of these intentions, Doherty’s crime was murder. But it is difficult to see how a man can fire a loaded pistol at another without intending to do him grievous bodily harm, so that if you think that Doherty fired the pistol at the deceased’s body, intending to hit him, but taking his chances where he hit him, that would be murder, though he did not intend to kill. If, on the other hand, you think that he fired it vaguely, without any special intent at all, and by so doing

caused his death, that would be manslaughter.”

I find this counsel very instructive.

The evidence adduced before the trial Court clearly indicated that there was a gruesome violent physical attack on the deceased by the Appellant and the other accused persons. The evidence of PW1, PW3 as well as Exhibit A, the medical report, confirms the injurious attack on the person of the deceased. DW1 in Exhibit B stated:

“I equally joined in beating the deceased person. Ofonime Udom Usua used torchlight in beating the man on his head while Christopher George Udofia used Indian Bambo(sic) stick in beating the deceased person.”

These same gory details are repeated in Exhibit B2.

PW1 had testified that:

“They strangled him and used dagger to pierce his eyes.

Apart from Etim Etim Udoh, the others were Unyime George, Ofionime Usua, Nsikak Usua. I cannot remember the name of the 5th person. He is the 2nd accused person…They locked me inside my room and continued to beat my in-law and took him away. I shouted and banged the door until the door was removed.

I then ran out of the room. As I shouted people came out. As people tried to

approach the accused persons, they threw bottles at them and threatened to kill anybody who approached them,.. They took my in-law to the compound of Unyime George’s father and continued to beat him until he died. They inflicted cuts all over his body. They brought out the corpse from the compound. When they saw the crowd they dropped the corpse and ran away…”

The intensity of the assault on the deceased is evident from these graphic details.

Was there substantial and justifiable reason for this attack? The Appellant’s Counsel had argued that the trial Court ought to have considered provocation. However, a defence of provocation cannot be at large. It must be supported by credible and positive evidence adduced by the accused person; Edoho v State (supra). The Supreme Court in Ofoka v The State (1976) 1 SC (REPRINT) 30, cited and relied on its earlier judgment in Akang v The State (1971) 1 All NLR 47 at 49, per Coker, JSC, in which the Supreme Court stated:

?It is of paramount importance in the consideration of this concept that the act held out as a natural and justifiable reaction of the provoked person be done not in

self-revenge, but in ventilation of a natural sudden and contemporaneous feeling of anger caused by the circumstances of the occasion”

In Exhibit B, the 1st accused stated:

It was yesterday the 5th day of July, 2003 that my senior brother Christopher George Udofia told me that the deceased person planted juju in our compound. Between 7pm and 8p.m. of same date my senior brother Christopher George Udofia brought the deceased to our compound. Prior to this period, one small boy by name Mbuotidem Clement Akpan ‘m’ showed me the place where the juju was planted…I personally dug the place where the juju was planted but I did not see anything.

In Exhibit B2, he further stated:

It was the 5th day of July, 2003 at about 2100 hrs. that my senior brother Christopher George Udofia ‘m’ told me that the deceased person Okon Tom Akpan ‘m’ planted juju in our compound.

?21:00 hour is 9pm. Could the 1st accused person have been informed about the alleged burying of juju by the deceased at 9pm when the attack on the deceased was stated in Exhibit B to have been between 7pm and 8pm? Pw1 in her evidence said that the deceased was dragged out of his

house at about 10 pm on the fateful night. When was the site the alleged juju was buried dug up by the 1st accused person? Interestingly, it is not in evidence that PW2 who is the owner of the compound was at all informed of the alleged burial of any juju on his land by the deceased. Of fundamental importance is the fact that this compound was not that of the Appellant. He could not have been so provoked by an alleged burying of juju on land that did not belong to him at all. The obvious gaps exposed by these queries indicate unequivocally that there was no credible provocation within the meaning of the law.

It is also fundamental not to lose sight of the fact that the Appellant did not defend the charge at all. He did not testify to counter the evidence of the prosecution. He was given every opportunity to be heard in his defence, but he chose not to testify. He had no reaction to the evidence of the prosecution. The Appellant is deemed in this circumstance to have admitted the evidence against him; Arogundare v The State (2009) 6 NWLR (PT. 1136) 165, (2009) LPELR-559 (sc); Oforlete v The State (2000) 7 S.C. (pt. 1) 80. The long-established position of

the law is that evidence that is neither challenged nor debunked remains good and credible evidence, which can be relied upon by a trial judge, who would in turn ascribe probative value to it; Ebeinwe v The State (2011) LPELR-985 (SC) per Mukhtar, JSC (as he then was). The conclusions reached by the learned trial Judge upon the unchallenged and credible evidence adduced cannot be disturbed on this score.

?The evidence of PW1 is that the Appellant and other accused persons gave no chance for intervention or mediation. No one was allowed to come near to save the deceased from their wicked assault. Even PW2 testified that he ran away from his own compound as

a result of the sound of violence, not realizing it was his own sons in a display of ungodly riotous anger. The deceased was stated to be about 45 years old in Exhibit A. To have beaten any man, so brutally and so callously cannot be justified. I therefore resolve Issue No 3 against the Appellant.

In all, I find this appeal to be totally without merit. It fails and is hereby dismissed. The conviction and sentence of the Appellant as held in the judgment of Hon Justice Stephen Okon, J., of the Akwa Ibom State High Court, Ikot Ekpene Division delivered on June 24, 2013 is hereby affirmed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned brother O. A. OTISI, JCA afforded me the opportunity of reading before now the judgment just delivered.

?His Lordship has meticulously resolved all the issues in this criminal appeal. I am in full agreement with his reasoning and conclusion. I agree that the appeal is bereft of merit and ought to be dismissed. I accordingly dismiss same.

The judgment of Stephen Okon, J, of the Ikot Ekpene Division of the High Court of Justice Akwa Ibom

State, delivered on June 24th, 2013 convicting and sentencing the Appellant to death by hanging is hereby affirmed.

Appearances

Joe Agi, SAN with him, Emmanuel Sani, Esq. and N. Onwugharam, Esq.For Appellant

AND

Comfort Udoh, Esq.(Assistant Chief State Counsel) with him, I. U. Idemudo, (Mrs.) (Senior State Counsel, Ministry of Justice, Akwa Ibom state)For Respondent

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