UWEM ITA JOSHUA v. THE STATE (2019)

UWEM ITA JOSHUA v. THE STATE

(2019)LCN/13016(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of April, 2019

CA/C/355C/2016

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

UWEM ITA JOSHUA Appellant(s)

AND

THE STATE Respondent(s)

RATIO

DEFINITION OF A CORROBORATION

This is because corroboration is an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence has been committed but that the accused person has committed it. Corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness provided that it corroborates the evidence in some respect material to the charge. See NWAMBE V STATE [1995] 3 NWLR [PT. 384] [SC];DAGAYYA V STATE [2006] 7 NWLR [PT. 980] 647 [SC]; OGUNBAYO V STATE [2007] 8 NWLR [PT. 1035] 157 [SC]. PER OWOADE, J.C.A.

DEFINITION OF A VITAL WITNESS

In law, a vital witness is a witness whose evidence may determine a case one way or another. Thus, failure to call a vital witness by a party, such as the prosecution is fatal to the case of such party. IMHANRIA V NIGERIAN ARMY [2007] 14 NWLR [PT. 1053] 76; FRAMO (NIG) LTD. V DAODU [1993] 3 NWLR [PT. 281] 372; STATE V NNOLIM [1994] 5 NWLR [PT. 345] 394. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State presided over by Hon. Justice Ezekiel O. Enang of the Abak Judicial Division delivered on 29-2-2016.

The Appellant was charged with the murder of one Ita Joshua Usen [his father] under Section 326(1) of the Criminal Code Cap. 30 Vol. 2 Laws of Akwa Ibom State 2000.

The prosecution called five witnesses and tendered five exhibits. The Appellant testified on oath in his defence. At the end of trial, the learned trial Judge convicted the Appellant based on his confessional statement as there was no eye-witness account of the event. At page 174 of the Records, he remarked thus:
?In conclusion, based on the free and voluntary confessional statements of the accused person to the police which is corroborated by his confession before PW1 [the Village Head] and which confession is direct, positive and unequivocal which have proved all the essential ingredients of the offence of murder. I hold that the prosecution has proved that the accused person murdered Ita Joshua Usen and I find the accused

guilty of murder of Ita Joshua Usen as charged and convict him.

Dissatisfied with this judgment, the Appellant at first filed a Notice of Appeal in person on 1st March 2016. However by an Amended Notice of Appeal of 20/6/2017 learned counsel for the Appellant Nsikak Akai, Esq. filed three grounds of Appeal to this honourable Court.

The relevant briefs of argument for the appeal are:
1. Appellant?s brief of Argument dated and filed on 20/6/2017 but filed on 15/1/2019. It is settled by Nsikak Akai, Esq.
2. Respondent?s brief of Argument dated 7/11/2017 and filed on 8/11/2017 was deemed filed on 15/1/19. It is settled by Uwemedimo Nwoko, Esq., Attorney-General, Akwa Ibom State.
3. Appellant?s Reply Brief dated 21/2/2018 and filed on 22/02/2018 was deemed filed on 15/1/2019.

Learned counsel for the Appellant nominated three (3) issues for determination. They are:
1. WHETHER THE COURT BELOW WAS RIGHT IN RELYING ON THE EVIDENCE OF PW1 AS A CORROBORATING EVIDENCE OF EXHIBITS ?D? AND ?E? IN CONVICTING THE APPELLANT?
2. WHETHER THE COURT BELOW WAS RIGHT IN PROCEEDING TO CONVICT AND

SENTENCE THE APPELLANT IN THE FACE OF MATERIAL CONTRADICTIONS IN THE PROSECUTION?S CASE?
3. WHETHER THE COURT BELOW PROPERLY HELD AFTER EVALUATING THE EVIDENCE ON RECORD THAT USEN SUNDAY ETTEH WAS NOT A VITAL WITNESS FOR THE PROSECUTION?

Learned counsel for the Respondent in essence adopted the substance of the Appellant?s brief of Argument and formulated three similar issues for determination.

On Issue One, learned counsel for the Appellant reminded us that the prosecution?s case as well as the Appellant?s conviction was based on the confessional statements Exhibits ?D? and ?E?. He conceded that a man may be convicted solely on his confession but that it is however desirable to have some evidence of circumstances which make it probable that the confession was true. After referring to the case of JAMES IGRI V THE STATE [2009] LPELR ? 4374 [CA], he submitted that the desirability to have some independent corroborative piece(s) of evidence from the prosecution to completely establish the truth in the said confessional statement, made the law to evolve certain tests upon which Courts are

enjoined to tests the veracity of the confessional statements.

On this, he referred to the six-way test on the veracity of confessional statements as stated in the case of IKEMSON V STATE [1989] 3 NWLR [PT. 110] 445 and submitted that the Court below in attempting to apply the six-way test of confessional statements went in search of some corroborative piece of evidence and held at page 168 ? 169 of the record that the evidence of PW1 corroborates the confessional statements of the Appellant. He submitted that the evidence of PW1 that the Appellant had earlier admitted the commission of the offence before him was not narrated to the police at the earliest opportunity by PW1 in his extra-judicial statement to the police. This he said is clearly an after-thought. He submitted that the law is settled that a witness who had the opportunity of narrating an important incident or name a suspect in his extra-judicial statement but failed to do so should be treated as unreliable where he/she leads evidence in that direction in Court. The Courts are always enjoined, he said to be very careful on relying on such evidence of a witness. That the evidence of PW1

relied on by the learned trial Judge to corroborate Exhibits ?D? and ?E? was never said to the police.

He submitted that such is a major inconsistency which has led to a miscarriage of justice in the case of the Appellant. He referred to the case of OGUDO V THE STATE [2011] LPELR-860 [SC] per Rhodes-Vivour, JSC and urged us to hold that the learned trial judge erred in law in finding solace in the evidence of PW1 to corroborate Exhibits ?D? and ?E? in the face of the fact that the said evidence of PW1 himself is inconsistent with his extra-judicial statement to the police.

Learned counsel for the Respondent opened up his submissions on issue One and said that the law is trite and ever elementary that a free and voluntary confession of an accused person alone can without more ground conviction. He added that a confessional statement of an accused person is alleged voluntary if at the point of tendering same there is no challenge to its admissibility. He referred to the cases of OSENI V THE STATE [2012] VOL. 208 LRCN 151, and ISAAC STEPHEN V THE STATE [1986] 12 SC 45 as well as Section 28 of the Evidence Act 2011.

Respondent?s counsel emphasized that the Appellant and his counsel did not object to or challenge the admissibility of Exhibits ?D? and ?E? in any form and that the Exhibits having admitted all the ingredients of the offence of murder, the trial Court was right in relying on the Exhibits as free and voluntary confessions of the Appellant to sustain his conviction. Respondent?s counsel submitted further that in the instant case, the trial Court did not just convict the Appellant on the confessional statements Exhibits ?D? and ?E? but also found corroborative evidence in the evidence of PW1. He added that the evidence of PW1 which corroborated Exhibit ?D? and ?E? was not contradicted and remains unchallenged. He referred to the cases of OKORO V THE STATE [2012] VOL. 207 LRCN 106 @ 133 ? 134 and GODSGIFT V THE STATE [2016] VOL. 261 LRCN 75 @ 102 that when material pieces of evidence remains unchallenged, the Court is bound to accept same as true.

?On the submission by the learned counsel for the Appellant that the implicating portion of PW1 evidence was an

after-thought and unreliable piece of corroboration on account of the fact that PW1 did not state to the police at the earliest possible opportunity that the Appellant earlier admitted before him that he killed the deceased, the Respondent?s counsel submitted first that there is no law that compels the prosecution to tender the statement of any of its witnesses who is in Court and has given evidence on oath. Moreover, that the statement referred to by the learned counsel for the Appellant was never tendered by the defence counsel who has the duty under Section 232 of the Evidence Act to tender same before using same to contradict the witness. He submitted that the Appellant having failed to make use of the opportunity he had at trial to contradict the witness cannot be heard arguing same on appeal. He urged us to hold that the position of the trial Court cannot be faulted as the unchallenged evidence of PW1 rightly serves as corroborative evidence for Exhibits ?D? and ?E? which the trial Court rightly relied on to convict the Appellant.

?The crux of the Appellant?s counsel argument in his issue one is that the learned

trial Judge was not entitled to use the Appellant?s admission of the crime before PW1 as stated in the evidence of PW1 as corroboration of the Appellant?s confessional statements Exhibits D and E to ground conviction of the Appellant for the offence charged. The reasons for this according to the learned counsel for the Appellant are (i) the said statement by PW1 was not contained in the extra-judicial statement of PW1 and therefore an after-thought. (ii) For the same reason of not being contained in the extra-judicial statement of PW1 it offends against the inconsistency rule.

Suffice to say that from the facts and circumstances of this appeal, none of the above propositions by the learned counsel for the Appellant is correct. First, there is no law that says the entire gamut of a witness?s statement must have been hitherto contained in his extra-judicial statement. A witness may add to or subtract from his extra-judicial statement when given evidence viva voce in Court provided that the addition or subtraction does not amount to inconsistency in his evidence. Procedurally, if this were the case, the witness would be confronted with his

said extra-judicial statement which would then be tendered in evidence to contradict his viva voce evidence. In such a case, the Court may then be called upon to observe and give effect to any breach of the inconsistency rule. See Section 232 Evidence Act 2011. See KEKONG V STATE [2017] LPELR ? 42343 (SC).

In the instant case, the extra-judicial statement of PW1 as contained on page 4 (A4) of the Record of Appeal is reproduced thus:
I am the village head of Ikot Udo Usung Ukpom 1 in Abak Local Government Area of Akwa Ibom State. I know both the suspect and the deceased. They are my subjects. That on Friday 12/8/2011 at about 12.30 p.m I was in the burial ceremony of my relation at Nung Ukim Ikono in Uyo Local Government Area, while I had information that the suspect Uwem Ita Joshua has killed his father one Ita Joshua (M) base on that development I rushed down to my village to ascertain it was true, on getting home I saw the deceased corpse lying on the ground from there I rushed to the Police Station and made a complain of the incident whereby the suspect was arrested and the police recover a big plank use by the suspect killing the father. That is my statement.

.On the other hand, the evidence offered by PW1 in examination in chief as contained on pages 114 ? 115 of the record of appeal reads thus:
PW1, male, sworn on the Holy Bible and states in English as follows: My name is Obong Dick Udo Ekong. I am from Ikot Udo Usung Ukpom in Abak LGA. I am the village head of Ikot Udo Usung. I am 98 [ninety-eight] years old. I know the accused person in this charge. I know one Ita Joshua Usen, he is now late. About August 2011 I was at a funeral ceremony in neighbouring village called Nung Ukim. While at the funeral ceremony I had a report that Ita Joshua was killed by his son Uwem Ita Joshua. Uwem Ita Joshua is the accused person in this matter. I left the funeral ceremony immediately to confirm whether the report was true. When I arrived the village I saw the corpse of Ita Joshua. The corpse was in the house of the deceased at Ikot Udo Usung Ukpom. I mobilized some youths to look for the accused person. The youths saw the accused person and brought him to me. I asked the accused whether it is true that he killed his father and he admitted. The accused did not give me any tangible reason for

killing his father. The accused told me that he had some problem with his father and he fought with him and knocked him and he fell down and died. I handed over the accused person to the police. I made statement to the police in respect of this case.
I know one Idorenyin Ita Joshua he is a brother to the accused person. The police arrested the accused person and detained him. The corpse of the deceased was taken to the hospital for post mortem examination.
Chief State Counsel: That is all for the witness.
CROSS-EXAMINATION BY DEFENCE COUNSEL-
I did not see when the accused killed the deceased. All I have said is the information that was narrated to me. I cannot remember the name of the person that gave me the information.

It is interesting to note that there was no cross-examination by the defence counsel on the question of the confession of crime made to the PW1 by the Appellant. In this respect, the learned counsel for the Respondent was right to have suggested that when material pieces of evidence remains uncontradicted and unchallenged, the Court is bound to accept same as true. See OKORO V THE STATE [2012] VOL. 207 LRCN 108 @ 133

? 134; GODSGIFT V THE STATE [2016] VOL. 261 75 @ 103.

In the instant case, beyond the fact that the material portion of the evidence of PW1 was not challenged or contradicted and also beyond the fact that there was indeed no inconsistency in between PW1?s extra-judicial statement and his evidence in Court, the learned trial Judge would still have found corroboration in the wooden plank used by the Appellant on the deceased, referred to in the evidence of PW3 and PW5 and admitted as Exhibit ?A?.

In the instant case, the trial Court cannot be faulted as the unchallenged evidence of PW1 rightly serves as corroborative evidence for Exhibits D and E on which the trial Court relied to convict the Appellant.
Issue One is resolved against the Appellant.

On Issue Two, learned counsel for the Appellant submitted that the law is trite that where there are contradictions in the evidence of the prosecution?s witnesses on a material fact, such contradictions ought to be explained by evidence from the prosecution. In the absence of such an explanation by the prosecution, the Courts are not expected to speculate on an imagined explanation of such contradiction and proceed to chose which of the prosecution witnesses to believe. He submitted that the law is also settled that it is not every contradiction that will spell doom for the prosecution but same must be of a serious import. He referred on this to the cases of IBEH V STATE [1997] 1 NWLR [PT. 484] 632 and BOSAH V STATE [1980] 1 NCR 204, where medical evidence of two medical experts were held to be contradictory as to cause of death. He submitted that in the instant appeal, the Appellant is alleged to

have beaten the deceased to death with a plank or stick. That in order to succeed, the prosecution fielded as PW4, a medical doctor, in order to establish the cause of death. However, that the evidence of PW4 that the deceased died of stab wounds ran contrary to the evidence of other prosecution witnesses who testified that the deceased was hit by a plank or stick which caused his death.

Learned counsel for the Appellant quoted where the PW4 testified in cross-examination inter alia that:
the deceased died due to concealed bleading. The death resulted from the stabbed wounds on the deceased?s body. When you say stabbed wound it means there was a knife used in inflicting the wounds…

He submitted that at page 165 of the Record, the Court below found that the PW4 was not an eye witness and cannot be heard to say that the deceased was stabbed with a knife. That the Court held further ?All what was expected of the PW4 was cause of death based on is examination of the corpse and not cause of death as an eye witness? (Page 165 of the record).

Appellant?s counsel referred to the cases ofABUDU V STATE [2017] 7 NWLR [PT.

1564] 171 and DERIBA V THE STATE [2016] LPELR ? 40345 [CA] and submitted that the evidence of PW4 contradicts the evidence of other prosecution witnesses as to the cause of the deceased death which contradiction, the trial Court ought to have resolved in favour of the Appellant.

He urged us to interfere with the finding and holding of the trial Court on page 165 of the Record that the contradictions as contained in the discredited evidence of PW4 notwithstanding, the statements of the Appellant established the cause of death and as such medical evidence was no longer necessary. He concludes that ?For medical examination to conclusively state that stabbing with a knife was the cause of deceased?s death, there is therefore nothing to corroborate Exhibits D and E.”

Learned counsel for the Respondent submitted on issue two that for contradiction to be accorded premium, it must be grave and must relate to material facts in evidence. He referred to Exhibits ?D? and ?E? and the evidence of PW1, PW2, PW3 and PW5 to say that the deceased died on the spot after being beaten on the head with a plank. That in

Exhibits ?D? and ?E?, the Appellant unequivocally admitted that he hit the deceased on the head and he collapsed and died. That PW5 told the Court that the Appellant handed over the instrument of attack to him.

He submitted that the argument as to the weapon of attack is weak and feeble in the face of the evidence of PW4 himself that the deceased died of concealed bleeding.

He emphasized that the deceased herein died on the spot of attack. That the Appellant in Exhibits ?D? and ?E? said ?I pick up a plank that was used in roofing in a neighbouring compound and hit him on his head and he collapsed and died?. He referred to the cases of NWOKEARU V THE STATE [2013] 225 LRCN [PT. 27] 142; ASUQUO V THE STATE [2016] 257 LRCN 16 @ 33 to say that it is not in dispute that the deceased died as a result of the act of the Appellant.

He submitted that the perceived discrepancy in the nature of the injury or the weapon of attack was not fatal to the case of the prosecution. That the learned trial judge was therefore right when he held at page 59 (165) of the record as follows:

?. I hold that the evidence of PW4 notwithstanding, the statement of the accused person has established the cause of death and it was not even necessary for medical evidence on the cause of death.

It is perhaps convenient to start the discussion on Appellant?s issue two by saying that it is settled law that it is not every contradiction in the case of the prosecution that would require explanation from the prosecution and/or that would adversely affect the case of the prosecution. It is only material contradictions that can negatively affect or vitiate the case of the prosecution. ABUDU V STATE [2017] 7 NWLR [PT. 1564] 171; DERIBA V THE STATE [2016] LPELR ? 40345 [CA].

?In the instant case, the alleged contradiction in between the evidence of PW4 and the other witnesses for the prosecution on whether deceased?s death was consistent with the use of a knife or plank has been eliminated by two important factors in the case of the prosecution. The first is the existence of Exhibits ?D? and ?E?, the confessional statements of the Appellant which unequivocally explained the weapon by which the Appellant attacked the

deceased and how the deceased fell and died immediately after the attack by the Appellant.

In Exhibit D, the Appellant stated as follows:
? that it was on 12th August 2011 when we returned from burial ceremony from Nung Ukim Ikono, Uyo, I had a misunderstanding with my father (now deceased), whereby I was annoyed based on the grounds that he did not allow me to enter our house and during that annoyance I picked up a plank that was used in roofing in a neighboring compound and hit him on his head and he collapsed and died. I did not intend to kill him but due to the fact that I was drunk when I discovered that he died …
Also in Exhibit E, the Appellant stated as follows:
? that on the 12th August, 2011 at about 1500 hours at Ikot Udo Usung Ukpom village in Abak Local Government Area, I went to my father, one Ita Joshua Usen ?m? and I was having discussion with him, I asked him why he normally stay away from family meetings, my father did not reply any word, instead he push me out from the house, because of out of annoyance, I used a small stick and beat up my father on his head and caused the death of my father. That is all my statement.

The Appellant?s confessional statements as in Exhibits D and E are as stated earlier on corroborated by the evidence of PW1. As a matter of law an accused can be convicted on his free and voluntary confession if the Court is satisfied with the truth of the confession. See OSENI V THE STATE [2012] VOL. 208 LRCN 151; ISAAC STEPHEN V THE STATE [1986] 12 SC 45; GABRIEL V STATE [2010] 6 NWLR [PT. 1190] 280; STEPHEN IGRI V THE STATE [2009] LPELR-4374 [CA]; IKEMSON V STATE [1989] 3 NWLR [PT. 110] 445; ONYENYE V THE STATE [2012] VOL. 212 LRCN 107; CHIOKWE V THE STATE [2013] VOL. 216 LRCN 80 @ 105; EGHAREVBA V THE STATE [2016] VOL. 258 LRCN 187 @ 213; EFFIONG V THE STATE [1998] 59 LRCN 3961 @ 3975; GBADAMOSI V THE STATE [1992] 9 NWLR [PT. 266] 465 @ 480.

I need not add that in the truth finding process an admission/confession is of the higher echelon in the hierarchy of evidence. Therefore, in the instant case, the seeming contradiction of the evidence of the prosecution witnesses by PW4 cannot be held to be material.

?The second factor which eliminated the materiality of the contradiction in the evidence of PW4 is the

established fact in the evidence of the prosecution witnesses that the deceased died on the spot after the attack by the Appellant. The implication of the above is that the nature of the circumstantial evidence adduced by the prosecution was such that medical evidence was in fact unnecessary in the first place.

The evidence of the surrounding circumstances in this case on how the deceased met his death and the cause of death is cogent, unequivocal and irresistible and does not in fact require medical evidence on the cause of death. Clearly, circumstantial evidence is capable of proving a proposition with the accuracy of mathematics. See USMAN SULE V THE STATE [2013] LPELR-22323 [CA], STATE V OGBUBUNJO [2001] 2 NWLR [PT. 698] 576; AIGBADION V STATE [2000] 7 NWLR [PT. 666] 686 @ 698.
In the circumstance, I agree with the learned trial judge when he held at page 165 of the Record of Appeal that:
The law is that medical evidence is not a sine qua non in determining cause of death where the cause of death can otherwise be known. I hold that the evidence of the PW4 notwithstanding the statements of the accused person has established the cause of death

and it was not even necessary for medical evidence for the cause of death.
Issue Two is resolved against the Appellant.

On issue Three, learned counsel for the Appellant noted that throughout the entire evidence of the prosecution, the complaint of the case against the Appellant is said to be one Usen Sunday Etteh. He contends that much as the prosecution is not bound to call a host of witnesses, it is desirable it calls vital witnesses that would aid the Court do substantial justice to the parties. He referred to the case of OCHIBA V STATE [2011] 17 NWLR [PT. 1277] 633 @ 696 and submitted that given the peculiar facts and circumstances of this case, the said Usen Sunday Etteh was a vital witness whose evidence would have swayed the mind of the Court one way or the other. Failure of the prosecution to call the said Usen Sunday Etteh, said counsel was therefore fatal to their case. After referring to the case of ONAH V STATE [1985] 3 NWLR [PT. 12] 236, the Appellant?s counsel added that the prosecution did not only fail to field Usen Sunday Etteh as a witness, but also kept away his statement which both PW3 and PW5 told the Court they recorded

from him and are still with the police. That, according to counsel is withholding a vital piece of evidence which if produced would be against the party withholding same.

He referred to the provision of Section 167(d) of the Evidence Act 2011 and the case of CHAIRMAN ECONOMIC AND FINANCIAL CRIMES COMMISSION V DAVID LITTLE CHILD & ANOR. [2015] LPELR ? 25199 [CA].

He submitted that while considering this issue, the Court below at page 167 of the record held thus:
Thus Usen Sunday Etteh was not an eye witness to the murder of the deceased and his evidence would have been hearsay which in law is inadmissible.

He submitted that the above reasoning and conclusion of the Court below did not take into cognizance the fact that the said statement was being withheld by the same police who were in Court to give evidence of its contents. He urged us to hold that this is not acceptable in a criminal trial for murder.

Furthermore, said counsel, the above reasoning of the Court amounts to speculation which according to counsel is not permitted in law. He referred to the case of DALFAM NIG. LTD. V. OKAKU INTERNATIONAL LTD. [2002] FWLR [PT.

96] 501 and urged us to resolve the issue in favour of the Appellant.

Learned counsel for the Respondent submitted on issue three that the evaluation of evidence and the ascription of probative value is the sole responsibility of the trial Court. He referred on the above to the cases of FBN PLC V OZOKWERE [2013] VOL. 226 LRCN [PT. 2] 1; AGBAJE V FASHOLA [2008] 6 NWLR [PT. 1082] 90; OGOALA V THE STATE [1991] 12 NWLR [PT. 175] 509.

He submitted that the learned trial judge did properly evaluate the evidence on record before concluding that Usen Sunday Etteh was not a vital witness for the prosecution.

On the contention of Appellant?s counsel that failure to tender the statement of Usen Sunday Etteh was fatal to the case of the prosecution; Respondent?s counsel submitted that failure to tender the said statement was not fatal. That Usen Sunday Etteh was only informed of the murder of the deceased and that his statement would only have amounted to documentary hearsay evidence. In any event, said counsel, if the Appellant had need for the statement of a witness, he would have requested for production of same, in the absence of which

Section 167(d) of the Evidence Act will not apply.

There are two points to consider in the determination of Appellant?s issue Three. The first is whether in the circumstances of the case, Usen Sunday Etteh was a vital witness for the prosecution. The second is whether it could be said that the prosecution withheld the evidence of Usen Friday Etteh under the provision of Section 167(d) of the Evidence Act.
In law, a vital witness is a witness whose evidence may determine a case one way or another. Thus, failure to call a vital witness by a party, such as the prosecution is fatal to the case of such party. IMHANRIA V NIGERIAN ARMY [2007] 14 NWLR [PT. 1053] 76; FRAMO (NIG) LTD. V DAODU [1993] 3 NWLR [PT. 281] 372; STATE V NNOLIM [1994] 5 NWLR [PT. 345] 394.
In the instant case the learned trial judge was right when it declared that Usen Friday Etteh was not a vital witness in the case and held at pages 166 to 167 of the Record of Appeal thus:
It is contended by the defence counsel that the prosecution failed to call a vital witness and this vital witness is Usen Sunday Etteh. A vital witness is a witness whose evidence will help the

Court one way or the other in deciding an issue in the case and failure to call such witness is fatal to the case of the person who ought to have called him as it would be presumed that if he/she were called his/her evidence would have been against the party who failed to call him.
PW5 stated that he recorded statement from Usen Friday Etteh. Under cross-examination, PW5 stated that Usen Sunday Etteh informed him that he was informed that the accused killed the deceased.
Thus Usen Sunday Etteh was not an eye witness to the murder of the deceased and his evidence would have been hearsay which in law is inadmissible. I hold that Usen Sunday Etteh was not a vital witness for the prosecution and failure to call him is not fatal to the case of the prosecution.
Second, the prosecution in this case could not be said to have withheld evidence/statement of Usen Friday Ette. In the first place the provision of Section 167(d) of the Evidence Act deals with ?withholding of evidence? and not ?withholding of witness?. This is partly because there is no rule which imposes an obligation on the prosecution to call a host of

witnesses. All the prosecution needs do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter. BABUGA V STATE [1996] 7 NWLR [PT. 460] 279 [SC]; OGUONZEE V STATE [1998] 5 NWLR [PT. 551] 521 [SC]; JAMMAL V STATE [1999] 12 NWLR [PT. 632] 582; ODUNEYE V THE STATE [2001] 13 WRN 88 [SC]; AGBI V OGBEH [2006] 11 NWLR [PT. 990] 65 [SC].
Furthermore, and as rightly pointed out by the Respondent?s counsel, a party who intends to rely on the provision of Section 167(d) of the Evidence Act must have exhausted the provisions of Sections 244 and 245 of the Evidence Act by ?calling for the document/evidence to be produced?. This was not done by the Appellant in this case. Therefore, in the circumstances of the case, the prosecution did not withhold the statement/evidence of Usen Friday Ette and the said Usen Friday Ette was not a vital witness for the determination of the case.
Issue Three is resolved against the Appellant.

Having resolved the three (3) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.

?The judgment, conviction, and sentence of the Appellant by Ezekiel O. Enang, J. in Suit No. HA/13C/2012 is accordingly affirmed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in advance, the erudite leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, J.C.A. I concur, in toto, with the reasoning and conclusion in it. I too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading the draft judgment of my learned brother, Mojeed A. Owoade J.C.A, just delivered.. I am in agreement that the appeal lacks merit and should be dismissed.

After an examination of the evidence presented, it become clear that the appellant killed his father by hitting the deceased with a plank on his head wherein he collapsed and died on the spot.

There is no gainsaying the fact that the appellant had in his extra-judicial statements, Exhibits D and E confessed to the commission of the crime. A confession by an accused to the commission of an offence plays a

vital role in the determination of his guilt. A trial Court is therefore empowered to convict on the confessional statement once it is convinced that the confession is voluntary. See ALABI V STATE (1993) 7 NWLR (pt 307) 511, FABIYI V STATE (2015) 18 NWLR (pt 1490) 80, DOGO V STATE (2013) 10 NWLR (pt 1361) 160 and KAMILA V STATE (2018) 8 NWLR (pt 1621) Z52 at 268.

The appellant in this case has faulted the position taken by the trial Court in relying on the evidence of pw1 to corroborate Exhibits D and E on the ground that the evidence of pw1 is inconsistent with his earlier statement to the police. Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not therefore means that the witness corroborating must use exact or very like words as in arithmetics. See DAGAYYA V STATE (2006) LPELR – 912.

The evidence of pw1 no doubt connect the appellant with the crime charged and it serves as corroborative evidence for exhibits D & F on which the trial Court rightly relied to convict the appellant.

It is for the foregoing and the fuller reasons contained in the lead judgment that I also dismiss the appeal and affirm the judgment of the trial Court.

Appearances:

Nsikak Akai, Esq.For Appellant(s)

Uwemedimo Nwoko, Esq. (Attorney-General, AKS)For Respondent(s)

Appearances

Nsikak Akai, Esq.For Appellant

AND

Uwemedimo Nwoko, Esq. (Attorney-General, AKS)For Respondent