GODWIN ELEWANNA v. THE STATE
(2019)LCN/13901(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/C/278C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: MURDER: INGREDIENTS NECESSARY TO PROVE MURDER AND BURDEN OF PROOF IN THE CASE OF MURDER
The Appellant was convicted for the offence of murder. The ingredients necessary to establish the offence were listed earlier in the judgment. It is trite that the burden is on the respondent herein from start to end of trial. The standard of proof is beyond reasonable doubt, See ADEWUNMI VS. STATE (2016) LPELR-40106(SC) where the principle was restated thus:
“Section 135 (1) of the Evidence Act 2011 sets the standard of proof required where the commission of crime is in issue. It is proof beyond reasonable doubt.”
See also ASARIYU VS. THE STATE (1987) 4 NWLR (PT. 67) 709; PAUL AMEH VS. THE STATE (1978) 6/7 S.C. 27 AT 35 ; AND PHILIP OMOGODO VS. THE STATE (1981) 5 S.C. 5 AT 21.
The Respondent called three (3) witnesses while the Appellant testified in his defence. Several Exhibits were tendered by the Respondent, amongst which are confessional statements made by the Appellant even though he retracted some in his oral evidence before the Court. There are three settled ways of proving the commission of a crime, namely:
i. Eye witness account
ii. By the confession of the accused and
iii. Circumstantial evidence.
See the case of ORISA VS. STATE (2018) 11 NWLR (PT. 1831) 435; AYEDATIWOR VS. STATE (2018) 11 NWLR (PT. 1631)542; EMEKA VS. STATE (2001) VOL.8 LRCN 2343.
There is therefore no one or particular way by which a crime must be proved and most often it is by a combination of the three ways of proof. The Respondent as prosecution is under a legal duty to present cogent and credible evidence to establish all the ingredients of the offence. Failure to establish one ingredient destroys the case of the prosecution. Again, the legal requirement to prove the offence beyond reasonable doubt did not mean beyond all shadow of doubt, what the law requires is that the prosecution should supply compelling evidence which has a degree of compulsion of a high degree of probability, see OSENI VS. STATE (2012) LPELR-7833 (SC) and SHURUMO VS. STATE (2010)19 NWLR (PT. 1226) 73. PER YARGATA BYENCHIT NIMPAR, J.C.A
EVIDENCE: CIRCUMSTANTIAL EVIDENCE: MEANING
“The definition of what circumstantial evidence is can be found in Mohammed vs. State (2007) 13 NWLR (Pt. 1050) 186 at 204 to be: “Circumstantial evidence is an evidence surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. Circumstantial evidence means that there are a number of circumstances which make a complete unbroken chain of evidence, if that is established to the satisfaction of the Court it may well and properly act upon such evidence. Earlier by another slant of language, Onu JSC had stated circumstantial evidence to be: “It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics.” See THE STATE VS. OGBUBUNJO (2001) 1 SC (PT. 1) 90 AT 88 – 99.” PER YARGATA BYENCHIT NIMPAR, J.C.A
CRIMINAL LAW AND PROCEDURE: CONFESSION: IMPORTANCE AND WEIGHT
There is no evidence stronger than a person’s own admission or confession. Such a confession is admissible. A confession made in judicial proceedings is of greater force or value than all other proofs. A confession is more often denied or retracted. The denial or retraction is a matter to be taken into consideration when deciding what weight could be attached to it. DIBIE VS. STATE (2007) 9 NWLR (PT.1038) 30; UKPONG VS. QUEEN (NO.1) (1961) 1 SCNLR 23, IDOWU VS. THE STATE (2000) SC (PT.11) 50 and OSENI VS. STATE (2012) LPELR-7833(SC). Confessional statement is not hearsay evidence but the best form of evidence. PER YARGATA BYENCHIT NIMPAR, J.C.A
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
GODWIN ELEWANNA Appellant(s)
AND
THE STATE Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Cross River State sitting in Calabar, delivered by Hon. Justice U. A. Ibitham on the 21st day of March, 2018 wherein the Appellant who was arraigned for the offence of murder was found guilty, convicted and sentenced to death. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 16th day of April, 2018 setting out 4 grounds of Appeal.
The facts leading to the appeal are fully set out in the record of appeal and briefs of both sides. In brief, the Appellant was arraigned for the murder of one Douglas Oga Augustine Ojugbo, male. The Respondent accused the Appellant for causing the death of the deceased by shooting him twice with a pump action gun which led to his bleeding to death. The Respondent during trial called 3 witnesses and tendered several exhibits. The Appellant testified in his defence. After due consideration the Court below found the appellant guilty, convicted and sentenced him to death thus this appeal.
The Appellants brief settled by NWAENYO, UGOCHUKWU JESSE Esq., dated 27th July, 2018 filed on the 30th July, 2018 donated 3 issues for determination as follows:
i. Whether the trial Court was right in convicting the Appellant in this case.
ii. Whether the evidence treated as confessional statements by the trial Court are unequivocal, direct and voluntary as to ground the Appellant?s conviction.
iii. Whether the trial Court considered the defences available to the Appellant.
The Respondent?s brief settled by ENEJI AMAJAMA ESQ., Deputy Director with the Ministry of Justice, Cross River State. It is dated 25th day of March, 2018 and filed on the 26th March, 2018 but deemed on the same day. It distilled a sole issue for determination as follows:
Whether the Respondent proved this case beyond reasonable doubt before the trial Court.
Upon a careful consideration of the Notice of Appeal, the record of appeal and the briefs of the Appellant and Respondent, the Court find it expedient to adopt the sole issue formulated by the Respondent, within the said issue all the issues donated by the Appellant shall be considered. The bottom line of the prosecution is to prove the offence alleged beyond reasonable doubt as required by law and in doing that all the areas of complaint against the judgment shall be determined.
SOLE ISSUE
Whether the respondent proved this case beyond reasonable doubt before the trial Court.
The Appellant in arguing issue one started with a review of cases on the ingredients of the offence needed to be proved by the Respondent, the three settled ingredients are:
i. That the deceased died
ii. That it was the act of the Appellant that caused the death
iii. That it was the intentional act of the appellant that caused the death of the deceased.
He relied on the following authorities:TEGWONOR VS. STATE (2008) 1 NWLR (PT. 1069) 630; SUNDAY UDOSEN VS. THE STATE (2007) LPELR-3311 (SC); IDIOK VS. STATE (2008) VOL. 6 MJSC 36 at 57; ORE-OFE ADESINA (AKA ALHAJI) & ANOR VS. THE STATE (2012) LPELR-9722(SC); BABATUNDE ADELANI VS. THE STATE (2018) 5 NWLR (PT. 1611) 50 to proffer arguments. The Appellant submitted that the burden of proof is on the respondent from start to end of trial and the standard is proof beyond reasonable doubt and where the respondent fails to establish any of the named ingredients, the person accused must be discharged, see UDOSEN VS. STATE (supra). He submitted that like other offences, a murder charge can be proved by direct or circumstantial evidence as held in IDIOK VS. THE STATE (supra) and the distinction between the two as given in the case of ORE-OFE ADESINA VS. THE STATE (supra). Appellant argued that direct evidence can be inaccurate considering a number of factors and the apex Court cautioned Court on relying same in the case of BABATUNDE ADELANI VS THE STATE (supra). He conceded the fact that there is a deceased but disagreed that it was the act of the Appellant that caused the death of the deceased and therefore, the Respondent failed to prove the most important ingredient because there is no direct evidence showing it was the act of the Appellant that caused the death and the inferences drawn by the Court below were perverse. He contended that there is a missing link which opens the cause of death to mob action. Appellant?s counsel situated the reason for the deceased at the Appellant?s house to several versions which turned out to be false and therefore the only reason was to rob the Appellant as established by the Appellant in his evidence and corroborated by Mrs. Ifeoma Okafor?s statement to the police (page 14 of the record). Appellant contended that it can be scientifically established and by the evidence of Mrs Okafor that the deceased had ran into a mob whose action caused his death. Learned counsel for the Appellant submitted there are doubts which should go to the benefit of the Appellant. Furthermore, Appellant submitted that the Court relied on hearsay evidence of PW1 as against the direct evidence of the Appellant. He submitted that there were inconsistencies in the evidence of PW2 which is strong enough to vitiate the conviction. He asked whether the deceased came to rob; whether there were two men chasing the deceased; and whether it was the mob that killed the deceased and relied on JAMIU DAIRO VS. THE STATE (2017) VOL. 12 MJSC 158.
On issue two the Appellant dwelt on the confessional statements made by the Appellant, citingDANIEL EDET DANIEL VS. THE STATE (2016) LPELR- 41238(CA) for the definition of a confessional statement and contended that the statements tagged confessional are not cogent, consistent, credible and unequivocal; and therefore should not have been relied upon by the Court on the authority of OLAYINKA AYENI VS. THE PEOPLE OF LAGOS STATE (2016) LPELR- 41440 (CA).
Furthermore, the Appellant submitted that the confessional statements were made in the absence of counsel to the Appellant contrary to Section 17 of the Administration of Criminal Justice Act 2015. He also alleged that there was failure to comply with rules of custodial interrogation and that could impeach the confessional statements including failure to properly caution the Appellant, he relied on Section 35(2) of the Constitution. The other vitiating feature mentioned is inducement or promise made to the Appellant by the IPO, he relied on OMOTOSHO VS. COP (1961) NSCC 314. He referred to the 5 statements made by the Appellant and tendered as Exhibit P2-P6 and gave the circumstances of their making and the variations in the contents. He also observed that the statements were recorded for the Appellant and that he retracted the statements and denied authorship and that evidence was not contradicted. Appellant argued that he was not treated as suspect but accused at the Zonal Headquarters of the Police as there was no further investigation but a rush to get him convicted. He challenged the recovery of the gun allegedly used and submitted that the confessional statements made at the Zonal headquarters are not reliable and should be discountenanced. Appellant submitted that PW3 authored the confessional statements and therefore the issue of confirming signatures by the trial judge cannot hold as two different authors are involved. Arguing in the alternative, the Appellant submitted that assuming he made the statements, they were not made according to Section 15(4); Section 17(1); Section 17(2) of the Administration of Criminal Justice Act, relied on AKAEZE CHARLES VS. THE FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43922(CA) and AWELLE VS. PEOPLE OF LAGOS STATE (2016) LPELR ? 41395 (CA).
The Appellant queried why there was no forensic or ballistic examination of the gun allegedly used linking it to the cartridge picked at the scene of crime and also fingerprints to link them to the Appellant in the absence of eye witness account of how the offence was committed. On the items recove
