EMMANUEL SUNDAY UDODUNG v. THE STATE
(2019)LCN/13694(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/C/06C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: HOW TO ESTABLISH MURDER OR MANSLAUGHTER
It was held in plethora of judicial decisions that to establish a charge of murder or manslaughter the evidence must be such as to show that the death of the deceased was caused by the act of the accused. The fact that the defence did not suggest that the death arose from other causes is not a confirmation of evidence which fall short of showing that death did arise as a result of the appellant?s act, the onus to establish this being not on the defence but on the prosecution. See ONYENANKEYA V THE STATE (1964) NWLR 34 and AIGUOREGHIAN V STATE (2004) 1 SC (pt 1) 65 at 98. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
CONFESSION: IMPORTANCE OF CONFESSION IN THE MATTER OF AN ACCUSED
In OKEKE V STATE (2003) 2 SC 63 at 125, it was held that confession of an accused person to the commission of a crime plays a major part in the determination of guilt of any accused person and a Court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHEN AN ACT IS CARRIED OUT INVOLUNTARILY
Perhaps, one may be tempted to consider the meaning as well as the interpretation of the word as provided in Section 24 of the Criminal Code. The section read thus:-
24. Subject to the express provisions of this code relating to negligent acts and omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, for an event which occurs by accident
In BRATTY V ATTORNEY-GENERAL FOR NORTHERN IRELAND (1963) A.G. 386 at 409, Lord Denning said:-
No act is punishable if it is done involuntarily; and an involuntary act in this con some people nowadays prefer to speak of it as automatism means an act which is done by muscles without any control by mind, such as a spasm, a reflex action or a convulsion, or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHEN AN INVOLUNTARY ACT RESULTS IN AN ACCIDENT
Karibi Whyte, JSC in CHUKWU V THE STATE (1992)1 NWLR (pt 217) 255 at 269 said:-
Where the voluntary acts results in an event which was neither intended nor foreseen, the consequence is an accident.?
On his part, OPUTA JSC put in these words in ADELUMOLA V THE STATE (1988) 1 NWLR (pt 73) 683 at 692 ? 693 inter alia:
?It seems to me that the expression an event which occurs by accident used in Section 24 of Cap. 42 of 1958 describes an event totally unexpected by any ordinary person, the reasonable man of the law. An event is thus accidental if it is neither subjectively intended nor objectively foreseeable by the ordinary man of reasonable prudence. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
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
EMMANUEL SUNDAY UDODUNG – Appellant(s)
AND
THE STATE – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Abak and presided over by Hon. Justice Ezekiel O. Enang delivered on 13th November, 2017. The appellant was found guilty of the offence of manslaughter and sentenced to life imprisonment. The charge against the appellant read as follows:
STATEMENT OF OFFENCE
MANSLAUGHTER contrary to Section 324 of the Criminal Code and punishable under Section 322 of the Criminal Code, Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
PARTICULARS OF OFFENCE
That you EMMANUEL SUNDAY UDODUNG, on or about 16 April 2012 at Nto Obot Ikot Inyang village, Abak Local Government Area in Abak Judicial Division did unlawfully killed one Friday Sunday Udodung by hitting him with bamboo stick.
The appellant pleaded not guilty to the above charge. At the trial, the respondent called four witnesses and tendered six Exhibits in its quest to prove the charge against the appellant. The appellant on his part testified for himself but called no other witness. In the end, the respective counsel
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filed and adopted their final addressees. In a reserved and considered judgment delivered on 13th November, 2017, learned trial judge found the appellant guilty at page 198 of the record of appeal as follows:-
?In conclusion, I hold that the prosecution has proved the charge of manslaughter against the accused person beyond reasonable doubt and I hereby find the accused person guilty as charged and convict him.?
Miffed by the above appellant filed this appeal vide a notice of appeal on 17/12/2017. His initial notice of appeal contains a lone issue but by leave of this Court granted on 11/4/2018 appellant amended his notice of appeal. The amended notice of appeal was further amended and the said further amended notice contains four grounds of appeal.
Distilled from the said four grounds of further amended grounds of appeal, learned counsel for the appellant, Julius Idiege, Esq., formulated the following two issues for the determination of this appeal as follows:-
?1. Whether the learned trial judge was right to have held that the extra-judicial statement of the appellant made to the police on 17/4/2012 is a confessional
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statement worthy of reliance to ground the conviction and sentencing of the appellant for the offence of manslaughter.
2. Whether the learned trial judge was right to have held that the prosecution proved the charge against the appellant beyond reasonable doubt as required by law.
On the part of the respondent, a lone issue was formulated for the determination of this appeal thus:-
?Whether from the evidence adduced at the trial, the prosecution proved the case of manslaughter against the appellant beyond reasonable doubt.?
I have carefully considered the issues formulated and canvassed by counsel on both sides. I have also considered deeply the contents of the record of appeal. It is however my respectful view that the lone issue formulated on behalf of the respondent is wide enough to accommodate the two issues of the appellant. I shall therefore determine this appeal in the light of the respondent?s lone issue.
?Before proceeding to consider the argument of learned counsel on both sides, I will like to set out in brief the facts of this case as encapsulated in the appellant?s brief of argument. In the night
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of 15/4/2012 breaking 16/4/2012, the appellant and the deceased who was the appellant?s half brother had a quarrel as a result of the deceased?s demand for the money that one Ibanga gave to the appellant to hold for the treatment of one Ifiok Udodung who was sick. The deceased, Friday Udodung died after being hit with bamboo stick.
At the oral hearing of the appeal on the 27/5/2019, learned counsel for the appellant Mr. Julius O. Idiege adopted the appellant?s brief of argument as well as the appellant?s reply brief in urging this Court to allow the appeal. He contended that the learned trial judge was wrong to have held that the extra-judicial statement of the appellant, Exhibit 2 is a confessional statement worthy of reliance to ground the conviction of the appellant.
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He further contended that even before he evaluated the extra-judicial statement of the appellant, learned trial judge had believed the evidence of pw4 that the said extra-judicial statement was indeed confessional. Thus, the trial judge had already formed an opinion upon the evidence of pw4. It was therefore submitted that the procedure adopted by the learned
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trial judge in arriving at his conclusion that the extra-judicial statement of the appellant is confessional can be likened to judgment before trial. He referred to Section 28 of the Evidence Act and the cases of ADEBAYO V STATE (2014) LPELR ? 22988 and NKIE V FRN (2014) LPELR ? 22877 to contend that for a statement to be confessional, same must contain an admission by the appellant stating or suggesting that he committed the crime which is the object of the charge against him.
Still in argument, learned counsel submitted that the evidence contained in the extra-judicial statement of the appellant has not established link between the action of the appellant and the cause of death of the deceased relying on the dictum of OWOADE, JCA in EFFIONG V STATE (2018) ALL FWLR (pt 944) 710 as follows:-
?To succeed in a charge of manslaughter, the prosecution must prove that the act of the accused caused the death of the deceased, where it is impossible to identify the precise cause of death from evidence, the accused person must be acquitted.?
He further submitted that trial Courts
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should be reluctant to acting on any purported confessional statement without first testing the truth contained therein, that is, to have some corroborative evidence outside the confession. He referred to EZE V STATE (2018) LPELR ? 43715 and Re: OSAKWE (1994) 2 NWLR (pt 326) 273 and IKO V STATE (2001) LPELR ? 1480.
It was also contended for the appellant that the prosecution did not discharge the evidential burden of proof placed on it by law. And that since Exhibit 2 was only a proof of the fact that the appellant made a statement to the police, the prosecution still had the evidential burden to proof the guilt of the appellant beyond reasonable doubt. Learned counsel submitted that since the evidence of all the four witnesses called by the prosecution were struck out, the prosecution did not therefore discharge the evidential burden placed on it. He referred to ADEYEYE V STATE (2013) LPELR ? 19913, ESENE V STATE (2017) LPELR ? 41912, OMONGA V STATE (2006) ALL FWLR (pt 306) 930 at 954 and AMEH V THE STATE (1978) LPELR ? 460 to contend that
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the extra-judicial statement of the appellant alone did not prove his guilt of the offence of manslaughter for which he was convicted by the trial Court.
It was finally submitted that in the light of the finding of the learned trial judge that the death of the deceased was accidental, the appellant was therefore not criminally liable and the trial Court?s finding on the appellant was not only wrong but occasioned a miscarriage of justice. He urged the Court to resolve the issue in favour of the appellant and to allow the appeal.
Learned counsel for the respondent, Uduak Eyo Nsa Esq., who stood in for the Attorney General of Akwa Ibom State similarly adopted the respondent?s brief of argument and urged this Court to dismiss the appeal. Learned counsel conceded that the prosecution?s case was greatly hinged on the appellant?s extra-judicial statement Exhibit 2 which was admitted without any objection. He submitted that the extra-judicial statement of the accused tendered at the hearing is part of the evidence called by the prosecution and ought to be looked upon from the stand point of the onus on the prosecution to prove their
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case beyond reasonable doubt. He referred to ADEYEMI V THE STATE (2012) 9 ACLR 203 at 219 to 220, APUGO V THE STATE (2007)2 NCC 32 at 41 and UYO V A.G, BENDEL STATE (1986)1 NWLR (pt 17) 418 to contend that to establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but it did. Thus, it was submitted that the act of the appellant in using a bamboo stick to hit the deceased who fell down on the spot and died is a direct evidence of the prosecution as contained in Exhibit 2. Accordingly, the trial judge was right in relying on Exhibit 2 in convicting the appellant.
Still in argument, learned counsel submitted that the appellant?s confessional statement being direct, positive, unequivocal and it was made voluntarily and hence sufficient to ground the appellant?s conviction. He referred to TEGWONOR V STATE (2008)1 NWLR (pt 1069) 630, IKEMSON V STATE (1989) 3 NWLR (pt 110) 455 and MUSTAPHA MOHAMMED V STATE (2007) 30 NSCQR (pt 1) 364 at 380.
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He further submitted
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that the duty of the prosecution was to prove that there was no lawful justification for the killing the deceased. Hence, the trial Court reviewed the evidence led by the prosecution vide Exhibit 2 to reach the conclusion that the killing was unlawful and the prosecution had established its case beyond reasonable doubt.
It was also the contention of the respondent that the trial judge merely referred to the fact that the appellant admitted or confessed to carrying out an act on the deceased and not that he found Exhibit 2 confessional at the stage when pw4 gave evidence. He submitted that the learned trial judge had considered the efficacy of the appellant?s extra-judicial statement and found that act of the appellant caused the death of th
