ABEDNEGO v. STATE OF EKITI
(2020)LCN/14640(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, September 07, 2020
CA/EK/51C/2019
RATIO
CRIMINAL LAW: PROOF OF COMMISSION OF A CRIME
Where the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. It has been roundly asserted by the Courts that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify.
The Court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroboration. See – Miller v. Minister of Pensions 1947 2 ALL E.R. p.372, Lori v. State 1980 8 – 11 SC p.81 per Rhodes-Vivour, J.S.C., in Joseph vs. State (2011) LPELR-1630(SC). PER ORJI-ABADUA, J.C.A.
CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
To secure a conviction for the murder, the Prosecution must prove the three ingredients of the offence of murder that were repeatedly outplayed above by respective Counsel for the parties. Also, to prove the ingredients, the Prosecution must establish them through any of the three established modes of proof, that is to say, (1) By direct oral evidence of an eyewitness(s).A case can be proved by direct oral evidence. Section 126(a) and (b) of the Evidence Act, 2011, says: “Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to-(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact; Therefore, it is an established principle of law that if the testimony of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. A trial Court is left with no option but to believe the evidence of the prosecution which is direct, positive, unequivocal, uncontroverted and uncontradicted. See MODUPE V STATE (1988) 4 NWLR Part 87, 130 at 137. (2) By circumstantial evidence which must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence him. It is the law that circumstantial evidence can prove a case beyond reasonable doubt. It is proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt or (3) confessional statement of the accused himself pinning him down to the scene of crime. Voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt. PER ORJI-ABADUA, J.C.A.
CRIMINAL LAW: THE FIRST INGREDIENT OF THE OFFENCE OF MURDER
The first ingredient of the offence of murder is that the deceased died. PER ORJI-ABADUA, J.C.A.
EVIDENCE: WHETHER EVIDENCE OF ONE WITNESS IS SUFFICIENT TO JUSTIFY A CONVICTION
It is settled that the credibility of evidence does not ordinarily depend on the number of witnesses that testify. Evidence of one witness, if accepted and believed by a trial Court, is sufficient to justify a conviction. See Ali v. The State (1988) 1 NWLR (Pt. 68) 1; Effiong v. The State (1998) 8 NWLR (Pt. 512) 362. See Nkebisi vs. The State (2010) 5 NWLR Part 1188 page 471, per Fabiyi, JSC. Also, Nweze, JSC in Ikenne vs. The State (2018) LPELR-44695 held that “It is no longer in doubt that the evidence of a single witness, if believed by the Court, can sustain a charge even in a criminal matter relating to murder, Onafowokan v. The State [1987] 3 NWLR (pt. 61) 538; Effiong v. The State [1998] 8 NWLR (pt. 562) 362; Ali v. The State [1988] 1 NWLR (pt. 68) 1; Princewill v. The State [1994] 20 LRCN 303, 318; (1994) 6 NWLR (pt. 353) 703.” PER ORJI-ABADUA, J.C.A.
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
AJIBOLA ABEDNEGO APPELANT(S)
And
THE STATE OF EKITI RESPONDENT(S)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): An Information was filed on the 7th June, 2017 against the Appellant charging him with murder of one Ojo Ogunsakin a.k.a. Ojo Ghana on the 10th March, 2017 at Ado Ekiti contrary to Section 316 of the Criminal Code Law, Cap. C16, Laws of Ekiti State. He pleaded not guilty to the Charge on the 26th September, 2017. The Prosecution called six witnesses while the Appellant called two witnesses including himself. At the conclusion of the trial, the Appellant was convicted of murder of one Ojo Ogunsakin a.k.a. Ojo Ghana and sentenced to death on the 25th March, 2019. The Appellant filed his Notice of Appeal on the 23rd April, 2019. Then on the 9th July, 2019, the record of appeal was compiled and transmitted to this Court. The Appellant’s Brief of Argument was filed on the 26th July, 2019 while the Respondent’s Brief was filed on the 8th June, 2020 but was deemed as duly filed and served. Two issues were proposed by the Appellant in his Brief of Argument thus:
“1. Whether from the totality of the evidence proffered by the Prosecution, the learned trial Judge was not
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wrong to have found that the Prosecution proved the Appellant committed the offence charged beyond reasonable doubt.
2. Whether the trial Judge could in law rely on the Alleged confessional statements of the Appellant Exhibit 1 and Exhibit 6 in convincing him, being inadmissible documents.”
The Respondent distilled two issues for determination in the like manner:
“1. Whether considering the totality of evidence, the trial Court was not right in holding that the prosecutions proved the sole allegation of murder of murder of the deceased beyond reasonable doubt as required by law.
2. Whether the trial Court was not right in admitting and relying on the Appellant confessional statements, Exhibits 1 and 6 in arriving at its final decision.”
In arguing the appeal, learned Counsel for Appellant, Olalekan Olatawura, Esq., relied on Section 135 of the Evidence Act, 2011; the cases of Udo vs. The State (2016) LPELR-40721; Freeborn Okiemute vs. The State (2016); Olabode Abirifon vs. The State (2013) 13 NWLR Part 1372; Ajaegbo vs. The State (2018) LPELR-44531 SC; Idiok vs. State; Busari vs. The State (2015) EJSC Vol. 9 page 1 at 20,
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Aigbadion vs. The State (2000) 7 NWLR Part 666 page 705, Igba vs. State (2018) 6 NWLR Part 1614 page 44, Onitilo vs. State (2018) 2 NWLR Part 1603 page 239, Abogede vs. The State (1996) LPELR-45(SC) and Rasaki vs. The State (2011) LPELR-4859 and dwelt on the three distinct ways of establishing the guilt of an accused person in criminal trials, that is to say, (1) Direct evidence (2) Circumstantial evidence (3) Confession of the accused. He stated that the Prosecution bears the onus of proving the ingredients of the offence beyond reasonable as ascribed by law. To secure a conviction for the offence of murder, the Prosecution must establish that the departed actually died, that his death was orchestrated by the act of the accused; and the act of the accused which caused the death was intentional with the knowledge that death or grievous bodily harm was its probable consequence. Therefore, where the Prosecution fails to prove any of the ingredients of the offence by cogent and credible evidence, the accused shall be set free. It was stressed that the evidence adduced must be credible and must be properly evaluated to eliminate any doubt.
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Learned Counsel submitted that the trial Court in the instant matter failed to dispassionately review and consider the totality of the evidence adduced by the Prosecution before finding the Appellant guilty of murder. He stated that out of the six witnesses presented by the Prosecution, only PW3 and PW6 were the eye-witnesses. He referred to the evidence of PW3 at page 53 of the record where he said that the defendant was then taken away by his colleagues. They told the former Chairman and the deceased to go back to the office. Along the way, they saw that a stone hit the deceased on the head and he fell. Then during cross-examination he (PW3) said that he only heard that it was Abego (Appellant) that threw the stone. He emphasised that PW3 did not say he saw the Appellant throwing any stone. He argued that this contrasted with the evidence of PW6 who claimed at page 61 of the record that the defendant was very angry with the deceased that the defendant took a stone and hit the deceased. He contended that if the two witnesses were indeed present at the scene of crime, their evidence would have synchronised and tallied with one another.
He further argued that the
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evidence of PW4, the Investigating Police Officer, who stated that the deceased was hit twice with two different stones contradicted the evidence of both PW3 and PW6 who are eye witnesses to the crime. He said that none of the eye witnesses mentioned that the accused threw two stones or that the deceased was hit twice except for the investigation of the Police which revealed that two stones were thrown at the deceased. He further contended that the evidence of PW4 supported the evidence of DW1 and DW2 at pages 66-70 and 72-74 of the record, who stated that there was a general fracas at the motor park on that day in relation to the intra union dispute between two factions of which the accused and deceased belong to different camps and the deceased could have been hit as a result of mob action. Learned Counsel highlighted the principle on the effect of evidence elicited under cross-examination as stated in the case of Danladi vs. State (2017) LPELR-43627 pages 56-57, and, the discrepancies in the date of death of deceased as shown in Exhibit 2, the Post Mortem Report of the deceased which said the death occurred at “10:30am on 10/3/2017” and the
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various statements of the witnesses to the Police wherein they said that the deceased died three days after, that is “13/03/2017″. He contended that the contradictions in the evidence of PW3 and PW6 as to whether it was the Appellant who actually threw the stone that hit the deceased which ultimately led to his death is a material contradiction which ought to have created doubt in the mind of the Court, ought to be resolved in favour of the accused. He submitted that the eye witnesses having contradicted themselves on who threw the said stone amounts to major contradiction. He made reference to various portions of PW6’s evidence at page 61 of the record, that the deceased was rushed to hospital immediately and he was among those who rushed the deceased to the hospital and he did not know if the wife of the deceased still met him at the scene before he was rushed to the hospital which he said contradicted the evidence of PW5, the wife of the deceased. He said that PW6 is not a witness of truth, therefore, the totality of his evidence ought to have been disregarded by the Court. He further stated that the totality of the evidence of the
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Prosecution is replete with doubt which ought to had been resolved in favour of the Appellant. He cited the cases of Kolawole vs. The State (2015) LPLER-24781 CA and Onwe vs. The State (2017) LPELR-42587 SC and submitted that in the face of material contradictions there can be no proof beyond doubt in a criminal matter.
Further to his contention, learned Counsel submitted that assuming without conceding that the Prosecution proved beyond reasonable doubt that the Appellant caused the injury that led to the death of the deceased, he ought to have been convicted of manslaughter not murder because from the evidence of PW3 and PW6 the Appellant and the deceased had a clash over their Union matter. He mentioned the evidence of PW6 where he recounted that there was a clash between the defendant and the deceased. It ought not to have led to death. He argued that there was no evidence before the Court to show that the Appellant intended to kill the deceased.
He cited the cases of Ogbonna vs. State (2018) LPELR-46610(CA), Adoba vs. State (supra) page 254, Ofordike vs. State (2019) 5 NWLR Part 1666 page 395 at 419 and submitted that the Court has the power to
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convict an accused for a lesser offence for which he was neither charged nor pleaded to but which by evidence has been proved.
He contended that no material evidence was placed by the Prosecution before the Court proving that the Appellant intended to kill the deceased. He said that by Exhibit 2, there are three possible causes of death of the deceased that is, (a) severe head injury (b) Blunt Force Trauma and (c) Chronic Liver Disease. He contended that Exhibit 2 did not specify the actual cause of death. He further argued that the severe head injury or blunt force trauma could have been caused by the deceased falling to the ground without assistance to prevent the unexpected fall. He cited the cases of Ezekiel Adekunle vs. State (1989) LPELR-108(SC) and Abelegan vs. State (2018) 18 NWLR Part 1650 page 172 at 198 and submitted that the Prosecution has to establish the cause of death with certainty and show that it was the act of the accused that caused the death. He said that the Prosecution having failed to place credible and reliable evidence before the Court that the Appellant was responsible for the act that led to the death of the deceased, the
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trial Court ought not to have convicted the accused for the offence of murder. It should have acquitted him based on the doubts created by the Prosecution or convicted him for a lesser offence. It was further contended that the trial Court failed to consider the defence presented by the Appellant that there was a general fracas at the Motor Park on that day which was supported by the evidence of PW6 and PW4 who tendered two different stones as Exhibits and as revealed by Police investigations. He submitted that there was free for all fight (mob action) at the Motor Park on that day. He relied on the decision in Nwankwo vs. State (2017) LPELR-42756(CA) where the word “mob” was interpreted and the case of Kolawole vs. State (2015) LPELR-24781(CA) and urged this Court to reappraise and re-evaluate the totality of the evidence placed before the trial Court and interfere with the conclusions reached by the trial Court. He urged the Court to resolve this issue in favour of the Appellant.
Under issue No.2 regarding the reliance placed by the trial Court on the alleged confessional statement of the Appellant i.e. Exhibits 1 and 6, learned Counsel
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referred to Section 29(1)-(3) and (5) of the Evidence Act, 2011, the Supreme Court decisions in Ikumonihan vs. State (2018) 14 NWLR Part 1640 page 456 and Agbaje vs. Adigun (1993) 1 NWLR Part 269 page 261 at 272, Fatai Olayinka vs. The State (2007) 4 SCNJ 53 and submitted that although the Court can convict on the retracted confessional statement of the accused, it must ask itself certain salient questions which he enumerated at page 16 of the Appellant’s Brief that border on the corroboration of the confessional statement. He submitted that the trial Court failed to evaluate the evidence to warrant a conviction on the admitted confessional statement. He argued that the confessional statement was wrongly admitted, therefore the Court cannot rely on it to arrive at its decision. He cited Agbaje vs. Adigun (1993) 1 NWLR Part 269 page 261 at 272 and Fatai Olayinka vs. State (2007) 4 SCNJ 53 and submitted that any finding or decision based on such inadmissible evidence would be perverse and the appellate Court has a duty to intervene in such circumstance. Learned Counsel then turned to the provisions of Section 9 of the Administration of Criminal Justice Law of Ekiti State
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which he argued provides the conditions under which a confessional statement can be admissible in law. He reproduced the wording of the section with particular reference to 9(3) and the cases of Zhiya vs. People of Lagos State (2016) LPELR-40562 and Fabian Matthew vs. The State, Appeal No. CA/L/1126/2011 where it is asserted that compliance with the provisions relating to taking a confessional statement in the presence of a Legal Practitioner and it being video recorded is mandatory and it goes to the weight and privatize value to be attached to such statement. He said that PW1 and PW4 did not tell the Court whether the provisions of the section were complied with as they did not indicate that a Legal Practitioner was present when the Appellant allegedly made the confessional statement. He further cited the cases of Agbanimu vs. FRN (2018) LPELR-43924, Okegbu vs. State (1979) 12 NSCC 157 at 174, Nnajiofor vs. FRN (2018) LPELR-43925 CA, Agbanimu vs. The State (supra), Owhoruke vs. COP (supra), Oluwatoyin v. The State (2018) LPELR-4441(CA), etc, where the said provisions of Section 9(3) of the ACJA had been
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interpreted and applied and in which it was seriously recommended that confessional statements should only be taken from suspect if, and if only his Counsel is present, or in the presence of a Legal Practitioner. Where this is not done such a confessional statement should be rejected by the Court. It was further expressed in one of those cases that noncompliance with those provisions would automatically throw a purported confessional statement out of the window. Learned Counsel then submitted that the trial Court was then wrong in admitting the said confessional statement and ascribing credibility thereto. He further stressed on the seeming contradictions in the evidence of PW3 and PW6 as to who actually threw the stone and stated that there is no credible evidence supporting the case of the Prosecution. He stated that the statement of the Appellant was wrongly admitted in evidence having not complied with the provision of Section 9(3) of the Administration of Criminal Justice Law, Ekiti State. He then urged this Court to allow this appeal, set aside the conviction and sentence of the Appellant and discharge and acquit him.
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The Respondent’s learned Counsel, Olawale Fapohunda, Esq., A. G., Ekiti State, said the Respondent adduced sufficient direct, circumstantial and confessional evidence before the lower Court and the same was completely evaluated by the trial Court. He referred to the cases of Matthew Nwalu vs. The State (2018) All FWLR Part 966 page 262 at 379, Ogba vs. State (1992) 2 NWLR Part 22 page 16, ***, recapitulated the ingredients of the offence of murder, and the modes through which the Prosecution shall prove the guilt of the accused. He said that the first ingredient of the offence of murder that is, that the deceased, a human being is dead, was proved by the Prosecution through PW2, the Medical Practitioner and a Consultant Pathologist at the Ekiti State University Teaching Hospital Ado-Ekiti who conducted the postmortem examination on the deceased and reported in Exhibit 2 that the deceased died. Then the evidence of PW4, the Investigating Police Officer, who visited the scene and the morgue at the University Teaching Hospital where he saw the remains of Ojo Ogunsakin and took his photographs which were admitted as Exhibits 4A-C.
On the ingredient whether it was the act of the
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Appellant that caused the death of the deceased, learned Counsel submitted that there was eye witness to the commission of the offence. He said that PW6 witnessed the commission of the offence, and how the injury was inflicted on the deceased. The highlight being that on the date of the incident, there was a clash between the defendant and the deceased. They came to the motor park. At the Aluko Tosin Park, the defendant was angry with the deceased. The defendant took a stone and hit the deceased. The stone hit the deceased and he fell. They then rushed the deceased to the hospital. He was admitted and they left. He submitted that PW6 actually saw the Appellant at the scene of crime and also witnessed physically the actions of the Appellant at the scene of crime when he hit the deceased with a stone. He stated that the Appellant did not cross-examine PW6 on these material facts. He relied on the cases of Sgt. Kalajaiye Ola vs. The State (2019) All FWLR Part 998 page 323 at 345, Egwumi vs. State (2013) All FWLR Part 678 page 824 and Oforlete vs. State (2000) LPELR-2270 and submitted that the law is where the adversary fails to cross-examine a witness upon a
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particular fact, the implication is that he accepts the truth of that matter as led in evidence. He emphasized that from the record of appeal, it is clear that the evidence of PW6 established the fact that the deceased and the Appellant has previous crisis, the efforts made to settle the clash yielded no result. The Appellant and the deceased were drivers and officers Road Transport- see pages 7-8 of the Respondent’s Brief. He pointedly stated that it was established that it was only the deceased and the Appellant that had clash and fought on that fateful day of 10/3/2017 therefore, the possibility of other persons committing the crime beside the Appellant is completely ruled out.
On the issue whether the Appellant deliberately or intentionally inflicted the injury on the deceased with the knowledge that death or grievous bodily harm was its probable cause, learned Counsel turned to the evidence of PW2 and the contents of Exhibit 2 which established the cause of death as the severe head injury associated with skull fracture and extensive bleeding into the brain. He then argued that anybody who inflicted the injuries as stated in Exhibit 2
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definitely intended not only to cause grievous harm but also the death of the victim. He submitted that it is settled that in ascertaining whether an accused intended to cause death of a deceased in a murder case, it is always the gravity of the assault (on the vital parts of the body) that must be accorded considerations that could lead to conviction for murder. He stressed that the injury was inflicted on the head of the deceased which is a very sensitive part of the body. He then queried “Why the deceased’s head but not any other part of his body?” He relied on the decision in the case of Garba vs. The State (2000) FWLR Part 24 page 1448, Nwokeru vs. State (2013) 16 NWLR Part 1380 page 207 and State vs. Ajoku (2010) All FWLR Part 523 page 1924 where it was also settled that if a man in full knowledge of the danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder. He contended that the Appellant intended to cause the death of the deceased when he inflicted the injury as shown in Exhibit 2 on
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vulnerable part of the deceased’s body. He knew that death could result from his action. He said that the Appellant confessed he hit the deceased with a stone on the face and that shows the clear intention of the Appellant to either cause the death of the deceased or inflict grievous bodily harm.
On the allegation that the evidence adduced by the Respondent is riddled with inconsistencies and contradictions, learned Counsel submitted that for contradictions to be material and damaging to the prosecution’s case, it must be substantial and fundamental to the main issue in question so as to affect the credibility of the evidence. He argued that assuming but not conceding that there are contradictions in the evidence of PW3 and PW6, the question is how material is or are the alleged contradictions. He said that the question of who hit the deceased with the stone is a settled issue because the Appellant himself confessed to this fact in Exhibit 6. He further highlighted that the argument of the Appellant that the trial Court did not properly evaluate the evidence adduced before it, Counsel submitted that it is the duty of any party who raised the
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issue of non-evaluation of evidence to identify the evidence not properly evaluated or not evaluated at all. He said that the Appellant has not identified those parts of the testimonies that have not been adequately evaluated or evaluated at all. He referred to Exhibit 6 where the Appellant raised the defence of provocation and submitted that when an accused person raises a defence, he admits the commission of the offence. He made reference to the decision in Sule vs. State (2009) All FWLR Part 481 page 809 at 836 in support. He reiterated that the identity of the perpetrator of the crime i.e the killer of Ojo Ogunsakin (a.k.a. Ojo Ghana) is not in contention in view of the defence raised in Exhibit 6.
On issue No. 2 that is to say “whether the trial Court was not right in admitting and relying on the Appellant’s confessional statements, Exhibits 1 and 6 in arriving at its final decision”, learned Counsel submitted in respect of Section 9(3) of the Administration of Criminal Justice Law of Ekiti State, 2014 and argued that the cases cited by the Appellant were not decided on the Ekiti Law that contained a proviso that non-compliance with the
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requirement of sub-section (3) shall not preclude the admissibility in evidence of any confession otherwise admissible under the relevant provisions of the Evidence Act. He said that the Lagos State Law does not contain a proviso like that of Ekiti. He said that admissibility of the Exhibits was never challenged on the ground of involuntariness. The Appellant only denied making them. He cited the cases of Ikemson vs. State (1989) 6 SCNJ 54, Shande vs. State (2005) 22 NSCQR 756, Uwaekweghinya vs. State (2003) 6 MJSC 1, Nsofor vs. State (2004) 18 NWLR Part 905 page 292, Sule vs. State (2009) All FWLR Part 481 page 809; Nguma vs. A. G., Imo State (2014) 16 WRN page 1; Olalekan vs. State (2001) 18 NWLR Part 746 page 793; Amoshima vs. State (2009) 32 WRN page 47; Mbang vs. State 22 WRN page 111 and Nwachukwu vs. State (2004) 17 NWLR Part 262 and submitted that a confession does not become inadmissible merely because the accused person denied making it. The denial of a statement made by an accused to the Police is not only an issue of fact to be decided in the judgment but an issue that does not affect the admissibility of the statement. He argued that the
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admissibility of Exhibits 1 and 6 did not in any manner violate the provisions of the Administration of Criminal Justice Law of Ekiti State, 2014, a procedural law and the Evidence, Act. Also, corroborative evidence is only desirable and not necessary for a confessional statement as argued by the Appellant. Learned Counsel argued that the admissibility of the said Exhibits did violate any provision of the Evidence Act. He said that the evidence of PW2, apart from the evidence of PW3 and PW6 eminently corroborated Exhibits 1 and 6. There are corroborative evidence which made reliance on Exhibits 1 and 6 possible. He further referred to Durugo vs. The State (1992) 6 NWLR Part 255 page 525; Achabua vs. The State (1976) 22 SC page 63; Olabode vs. State (2007) All FWLR Part 389 page 1301; Section 135 of the Evidence Act, 2011; Chukwura vs. FRN (2011) 13 NWLR Part 1264 page 39 at 408; Abeke vs. State (2007) All FWLR Part 366 page 644, Olakunle vs. State (2018) All FWLR Part 947 page 1270 at 2297; Abiodun vs. State (2013) All FWLR Part 700 page 1257 and Fagbenro vs. Arobadi (2006) All FWLR Part 310 page 1257 and stressed that the trial Court painstakingly evaluated the
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evidence of PW1 to PW8 and the defence put forward by the Appellant and came to the conclusion that the Prosecution discharged the onus placed on it and proved the alleged crimes by credible evidence beyond reasonable doubt. He urged this Court to resolve this issue against the Appellant and dismiss the appeal.
In considering the issues propounded by the Appellant it ought to be stated that by Sections 131, 132 and 135 of the Evidence Act, the burden of proof is on the Prosecution to prove the commission of the offence of murder with which the Appellant was charged. Where the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. It has been roundly asserted by the Courts that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify.
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The Court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroboration. See – Miller v. Minister of Pensions 1947 2 ALL E.R. p.372, Lori v. State 1980 8 – 11 SC p.81 per Rhodes-Vivour, J.S.C., in Joseph vs. State (2011) LPELR-1630(SC).
Now the Appellant in this appeal was charged with the murder of one Ojo Ogunsakin. To secure a conviction for the murder, the Prosecution must prove the three ingredients of the offence of murder that were repeatedly outplayed above by respective Counsel for the parties. Also, to prove the ingredients, the Prosecution must establish them through any of the three established modes of proof, that is to say, (1) By direct oral evidence of an eyewitness(s).A case can be proved by direct oral evidence. Section 126(a) and (b) of the Evidence Act, 2011, says: “Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to-(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that
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fact; Therefore, it is an established principle of law that if the testimony of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. A trial Court is left with no option but to believe the evidence of the prosecution which is direct, positive, unequivocal, uncontroverted and uncontradicted. See MODUPE V STATE (1988) 4 NWLR Part 87, 130 at 137. (2) By circumstantial evidence which must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence him. It is the law that circumstantial evidence can prove a case beyond reasonable doubt. It is proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt or (3) confessional statement of
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the accused himself pinning him down to the scene of crime. Voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.
In tackling the first issue presented by the Appellant, it is pertinent to examine the quality of the evidence adduced by the Prosecution at the trial Court. No one can gainsay that the evidence adduced by the Prosecution via PW3 and PW6 is a direct eye witness and auditory account of what transpired at the scene of crime on the date of the incident, what was thrown at the deceased or what happened to him and how he died which was buttressed by the evidence of PW2 who tendered Exhibit 2, the Post Morten report.
The first ingredient of the offence of murder is that the deceased died. There was no contention between the parties that the said Ojo Ogunsakin, (a.k.a Ojo Ghana) the deceased,
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actually died. As for the first ingredient of the offence of murder, it is never in doubt that the deceased, one Ojo Ogunsakin (a.k.a Ojo Ghana) indeed died in March, 2017 as a result of severe head injury with attendant skull fracture and brain haemorrhage as reported by PW2, a Medical Practitioner and a Consultant Pathologist who examined the dead body of the said Ojo Ogunsakin on the 26th March, 2017. He tendered Exhibit 2 which strongly confirmed the death of the deceased.
The second ingredient requires proof that the death of the deceased was caused by the act of the accused. In considering this, one must ascertain the roles played or actions put up by the accused that probably accelerated the death of the deceased. This can only be deduced from the evidence of PW3 and PW6 who were present at the scene of crime when the deceased was hit by an object on his head.
PW3 said amongst other things that on the 10th March, 2017, he saw the deceased Ojo Ogunsakin and the former general chairman entered the motor park, that is, Tosin Aluko Park. As they entered he stood up and greeted them. He then saw the defendant also known as Abego. He was shouting
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and saying “Ojoohun da, a jonaarawaleni” meaning “where is Ojo? We would fight it out today”. By Ojo, he was referring to the deceased. The deceased just stood but did not do anything. He later saw the defendant hold a bottle but the general manager used his hand to remove the bottle from the defendant. The defendant was taken away by his colleagues. They then told the former Chairman and the deceased to go back to the office. Along the way, they saw that a stone hit the deceased on the head and he fell. He said he was inside the motor park while the deceased and the former general chairman was at the gate. It was the impact of the stone on the head of the deceased that he heard. People started shouting that it was the defendant who threw that stone. They later carried him to the hospital.
Under cross-examination he said he only heard that it was Abego that threw the stone. He said he was inside the motor park while the deceased and the former general manager were at the gate. He said that they saw that a stone hit the deceased on the head and he fell. People started shouting that it was the defendant who threw the stone.
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P.W. 6, one Amusa Tairu, a driver, testified that there was a clash between the defendant and the deceased between the 8th-16th March, 2017. He said that when they came to Tosin Aluko Park, the defendant was angry with the deceased. The defendant took a stone and hit the deceased. The stone hit the deceased and he fell. He was admitted and they left. It was those of them who were present when the incident occurred that were asked to come and make statements. Under cross-examination, he repeated that it was the defendant who hit the deceased with a stone and he was present when the incident occurred.
It is certain from the evidence of PW6 that the Appellant actually threw a stone at the head of the deceased. It is remarkable that PW6 by his evidence was with the parties through and through. He witnessed all that transpired up to the point of throwing of stone by the Appellant at the head of the deceased. His evidence is direct and unequivocal, uncontradicted and uncontroverted as found by the trial Court. There was no pause or any prevarication as to what he witnessed. He was emphatic that he saw the Appellant throw the stone on the head of the deceased and
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the deceased fell immediately as a result. Although PW3 did not see who threw the stone but he heard the impact of the stone when it hit the head of the deceased. He equally heard people shouting spontaneously that it was the defendant who threw the stone at the deceased. PW6 witnessed with his very eyes when the Appellant hit the head of the deceased with a stone. What other direct evidence is needed that will be more credible than that of PW6 who physically witnessed the throwing of stone by the Appellant and the stone hitting the deceased on his head and causing him to fall. It is settled that the credibility of evidence does not ordinarily depend on the number of witnesses that testify. Evidence of one witness, if accepted and believed by a trial Court, is sufficient to justify a conviction. See Ali v. The State (1988) 1 NWLR (Pt. 68) 1; Effiong v. The State (1998) 8 NWLR (Pt. 512) 362. See Nkebisi vs. The State (2010) 5 NWLR Part 1188 page 471, per Fabiyi, JSC. Also, Nweze, JSC in Ikenne vs. The State (2018) LPELR-44695 held that “It is no longer in doubt that the evidence of a single witness, if believed by the Court, can sustain a charge even in a
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criminal matter relating to murder, Onafowokan v. The State [1987] 3 NWLR (pt. 61) 538; Effiong v. The State [1998] 8 NWLR (pt. 562) 362; Ali v. The State [1988] 1 NWLR (pt. 68) 1; Princewill v. The State [1994] 20 LRCN 303, 318; (1994) 6 NWLR (pt. 353) 703.”
The third ingredient is that the act of the accused which caused the death was intentional with the knowledge that death or grievous bodily harm was its probable consequence. On this I would refer to the Supreme Court decision in Chukwunyere vs. State (2018) 9 NWLR 1624 page 249, on how intention can be inferred in murder cases, Okoro, JSC., expressed thus: “On the last ingredient i.e. intention, I accept the views expressed by the House of Lords in the English case of Hyam v. DPP (1974) 2 All ER 43 that an intention to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in the death of or grievous bodily harm to the victim. Also, that if a man in full knowledge of danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable
29
grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to some extent as if he had actually intended the consequences to follow irrespective of whether he witnessed it. Now, taking into account the nature of the weapon used, in this case an axe – whether stainless or ordinary and the force applied on the head of the deceased as described by the PW1 and confirmed by PW3, the appellant cannot be heard to complain against his conviction for murder especially as the axe was used to hit the deceased on the head. There can be no doubt that a person delivering a violent blow with an axe on a vulnerable part of the body of the deceased such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his act. See James Afolabi v. The State (2016) LPELR – 40300 (SC) Orisakwe v. The State (2004) 12 NWLR (pt. 887) 258, Ejelikwu v. The State (1993) 7 NWLR (pt. 307) 554, Nwokearu v. State (2013) 4 – 5 SC (pt. 4) 95 at 122. Akinlolu v. The State (2015) LPELR – 25986 (SC).”
PW3 said that it was the impact of the stone on the head of the
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deceased that he heard. He said he was inside the Motor Park while the deceased and the former general chairman were at the gate. So one could imagine the deafening sound of such impact. There is no doubt that the Appellant threw a stone on the head of the deceased. The question is, can this be regarded as a trivial act or a low level of violence, which unforeseeably resulted in death. At the time the Appellant threw the stone on the head of the deceased, was the Appellant aware of the risk of death at the time of the killing. The law recognizes that those who inflict serious injury while aware of the risk of death are as morally culpable, or almost as culpable as intentional killers. Also, people who deliberately inflict serious injury cannot disavow “back of the mind awareness” that the human body is inherently vulnerable, they are therefore sufficiently morally culpable to deserve murder convictions. It is also settled that the intention to kill or cause grievous harm can be inferred from the nature of the weapon the accused used; and that “a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause
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grievous bodily harm- see Owhoruke V. C.O.P. (2015) 15 NWLR (Pt. 1483) 557 SC per Augie, JSC in Isah vs. State (2018) 8 NWLR Part 1621 page 346. The same thing applies to throwing a stone on someone’s head, a vulnerable part of the body with such lethal force, it cannot be regarded as a trivial or slight matter. Research shows that no matter how old, big, strong, healthy or experienced someone is, one hit of stone on his head can be enough to kill the person, or cause him permanent, life-altering damage. The medical effects of throwing a stone on the head can be swift and severe. According to PW2, the death of the deceased was caused by a severe injury to the head. The head injury is associated with skull fracture and extensive bleeding into the brain explains the severity of the injury. Although PW2 also discovered that the deceased had chronic liver disease he said that the immediate cause of death according to his evaluation is the severe injury to the head. It is a settled law that it does not matter for this purpose that his death was inevitable and his days were numbered due to the chronic liver disease. Where the deceased’s life was
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cut short by days it is just as much murder as if it were cut short by years. PW2 said that even if chronic liver disease is a potential cause of death, the severe head injury killed the deceased. The cause of death was not the chronic liver disease. Without the effect of the trauma to the head of the deceased, chronic liver disease could have killed him much later. In Uyo vs. A. G., Bendel State (1986) 1 NWLR Part 17 page 418, the Supreme Court, per Karibi-Whyte, JSC., held that: “It is an elementary principle that the accused must take his victim as he finds him. It is not sufficient for an accused whose physical assault results in the death of another to argue that his victim who has a weak heart died from such defect and not from the assault. The accused is criminally liable if death resulted from this act. The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Thus in this case death was caused by the infliction of injury by appellant which was proximate to his death. Section 311 of the Criminal Code provides “A person who does any act or makes any omission<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.” Section 312 has gone even further to deny the accused of my defence where death results from injuries inflicted by the accused, who did not take proper medical care or indeed ignored medical advice. So long as the cause of death is traceable to the injury inflicted by the accused, he would be held criminally responsible – See R. v. Holland (1841) 2 M & W 351; R. v. Mclntyre (1847) 2 Cos. C.C. 379. Section 312 provides “When a person causes a bodily injury to another from which death results, it is immaterial that the injury might have been avoided by proper precaution on the part of the person injured, or that his death from that injury might have been prevented by proper care or treatment.” The important consideration for determining responsibility is whether death of the deceased was caused by injuries he sustained through the act of the accused and not whether from the medical point of view death was caused by such injuries- See R. v. Effanga
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(1969) 1 All N. L. R. 339.”
This Court in the case of Amaechi vs. The State (2014) LPELR-22499(CA) held, per Ekpe, JCA., that: “A severe blow on the head with a blunt object which inflict a severe head injury leading to death presupposes an intent to kill the deceased.” It is clear from the foregoing that the three ingredients of the offence of murder was proved by the Prosecution.
On the second issue whether the trial Judge could in law rely on the alleged confessional statements of the Appellant Exhibit 1 and Exhibit 6 in convicting him in view of the peculiar facts and circumstances of this case, the Appellant firstly contended that because the Appellant retracted the confessional statement at the point of its admissibility, the trial Court ought to have evaluated the confession of the accused and his testimony at the trial as well as other evidence. I must observe that learned Counsel for the Appellant merely recapitulated the principles on retracted confessional statements without pinpointing the areas the trial Court failed to evaluate. The trial Court considered extensively the said Exhibits 1 and 6 at pages 121-124 of
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the record of appeal. In the words of the trial Court, “the approach to be followed in assessing the quality of a confessional statement, whether retracted or not, is to ask the following questions namely whether: (a) there is anything outside the confession which shows that it may be true; (b) it is corroborated in anyway; (c) it is relevant and statement of fact made in it are most likely true as far as they can be tested; (d) the accused had the opportunity of committing the offence; (e) the alleged confession is consistent with other facts that have been ascertained and established. See Isah vs. State (2007) NWLR Part 1049 page 582 at 611.”
It is instructive to note that the same principles relied upon by the trial Court as was restated inIsah vs. State (supra) were the principles reiterated in Ikumonihan vs. State (supra) heavily quoted by the Appellant’s Counsel in the Appellant’s Brief in alleging a monumental failure on the part of the trial Court to evaluate the alleged confessional statements of the Appellant in Exhibits 1 and 6. There were manifestations in the record of appeal that the trial Court deeply considered the
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said Exhibits vis-à-vis other evidence material to the case and came to the conclusion that the testimonies of PW1, PW2, PW3 and PW6 were independent evidence outside the confessional statements showing that the defendant committed the crime under consideration. It stated that the testimonies of these witnesses provided ample corroboration for the retracted confessional statements. It noted that the statements were relevant and statement of fact made in them were most likely true as far as they could be tested. After the assessment, the trial Court stated that the evidence before it showed that the defendant was at the scene of crime and that meant the defendant had the opportunity to commit the offence. This, I wholly agree with. It further held that the confessions were consistent with other facts that have been ascertained and established before it. The trial Court further stated that the sequence of events as narrated in the confessional statements were possible and that the facts in the confessional statements were in line with the believable evidence of PW1-PW6. I wonder what else the Appellant expected the trial Court to do.
Now to the contention that
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the said Exhibits contravened the provisions of Section 9(3) of the Administration of Criminal Justice Law of Ekiti State, 2014 having not been obtained from the Appellant in the presence of a Legal Practitioner, the Respondent argued that the cases cited by the Appellant were not decided on the Ekiti Law that contained a proviso that non-compliance with the requirement of sub-section (3) shall not preclude the admissibility in evidence of any confession otherwise admissible under the relevant provisions of the Evidence Act. He said that the Lagos State Law does not contain a proviso like that of Ekiti State. To determine this limb of the second issue, I would refer to the opinion expressed by this Court in an unreported judgment of this Court in Appeal No. CA/EK/26C/2018: Between: Adedayo and The State of Ekiti, delivered on the 31st March, 2020 wherein the proviso to Section 9(3) of the Ekiti State Administration of Criminal Justice Law, 2014 was considered by this Court and in which it was held thus:
“The section clearly enjoined a Police Officer taking down a volunteered confessional statement of a person to record on video the making and taking
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of such statement i.e the entire process relating to that confessional statement. Then where the Police Officer fails to capture it on video, it must be done in writing in the presence of a legal practitioner of that person’s choice. It seems that ordinarily where the Police Officer failed to either record the making and taking of the confessional statement on video or in the presence of a Counsel, such confessional statement may not be admissible and, even if admitted, no weight will be attached to it.
Nevertheless, the section itself introduced a limitation or condition to that basic requirement. It stipulates that the fact that a Police Officer failed or refused to comply with the Law or fulfill what he is under obligation to do as stated in the Administration of Criminal Justice Law of Ekiti State, 2014, that is, recording on video the said statement or in the presence of a Legal Practitioner of the person’s choice, will not in any form, prevent or stop or make impossible the admissibility in evidence of such confessional statement that may, in other respects or in different circumstances, be admissible under the Evidence Act. The proviso
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says that non compliance shall not prevent the admissibility of any confession otherwise admissible under the relevant provisions of the Evidence Act. It is clear that the proviso did not abrogate the use of trial within trial as stipulated in the Evidence. It only said that if the confessional statement can, in other respects be admissible under the Evidence Act, the fact that at the time the Police was taking the said confessional statement from an accused it was not recorded on video or taken in the presence of the accused person’s legal practitioner, would not automatically render it inadmissible if it would under certain circumstances be admissible under the Evidence Act.”
Now, Section 29 of the Evidence Act, provides:
(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been
40
obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.(emphasis mine)
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.”
It is on record that when the said confessional statement was to be tendered the Appellant via his Counsel raised an objection to its admissibility on the ground that he was forced to make and sign the statement. He was forced to say something. The trial Court then ordered for trial
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within trial so that the Prosecution would prove to the Court that the confession was not obtained by force. Trial within trial was conducted with the parties calling witnesses and adducing evidence. At the end of the trial within trial, the trial Court was satisfied that the said confessional statement was not coercively obtained as alleged by the Appellant. It then admitted the same in evidence.
It must be observed that the said confessional statement in the instant case having passed the crucible of trial within trial as prescribed by the Evidence Act was rightly admitted by the trial Court as envisaged by the proviso to Section 9(3) of the 2014 Administration of Criminal Justice Law of Ekiti State. The section did not foreclose the admissibility of such confessional statement under the Evidence Act. Therefore, the said Exhibit E was rightly admitted by the trial Court.”
In the instant case, the only objection raised was a retraction of the statement by the Appellant. At the time it was being tendered, Counsel for the Appellant objected to its admissibility on the ground that the Appellant denied making the statement in that he did not sign
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it and his name was not on the statement. The proviso to Section 9(3) clearly stipulates that non-compliance with any requirement of sub-section (3) of Section 9 would not render inadmissible any confession that would under other conditions be admissible under the relevant provision of the Evidence Act. Section 29(1) of the Evidence Act, provides: “In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.”
It is clear that the said confessional statements made by the Appellant were relevant to the matter in issue at the trial, that is to say, the murder of the deceased, Ojo Ogunsakin. Also, the said confessional statements were not excluded pursuant to Section 29 in the sense that there were no allegations of any form of involuntariness, oppression of the Appellant, coercion, duress, intimidation, etc, or anything done or said to the Appellant in the circumstances existing at the time that would have rendered the confessions made in the circumstances unreliable or would have
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affected their admissibility in evidence. The circumstance of retracting a confessional statement was not one of the conditions mentioned in the said section that would have affected or led to exclusion of a confessional statement under Section 29 of the Evidence Act, 2011. There are case laws too that a Court can rely and act on a retracted confessional statement to convict an accused person. The position of the law is that an accused can be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved. See Simon vs. State (2017) 8 NWLR Part 1566 page 119 and Shuaibu vs. State (2017) 16 NWLR Part 1592 page 396.
It is therefore, my view, after a careful consideration of the issues raised by the Appellant, that the same will be and are hereby resolved against the Appellant. Evidence of PW3 and PW6 are direct on what transpired on the date of the incident and what was thrown at the deceased and how he died. There were no contradictions or inconsistencies in their evidence material to the substance of the case. P.W.2, the Consultant Pathologist was unequivocal on what caused the death
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of the deceased. Also, the type of object thrown at the deceased and the part of his body at which the object was thrown, played a major role in this Court being reluctant to interfere with the findings of the lower Court. As a result, this Court finds no merit in this appeal and it is hereby dismissed. Consequently, the judgment of the lower Court convicting and sentencing the Appellant to death is hereby affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I have read in advance the lead judgment of my learned brother- THERESA NGOLIKA ORJI-ABADUA JCA just delivered.
My learned brother has treated all the issues canvassed in this appeal on their merit. I agree with the reasoning and conclusion that I have nothing else to add. The appeal has no merit and accordingly I join him in dismissing same.
The judgment of the lower Court convicting and sentencing the Appellant to death is hereby affirmed.
Appeal dismissed.
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Appearances:
OLATAWURA, ESQ. For Appellant(s)
OLAWALE FAPOHUNDA, ESQ., HON. A. G., EKITI STATE, with him, JULIUS AJIBARE, ESQ., DIRECTOR PUBLIC PROSECUTION and IBIRONKE ODETOLA, ESQ., P.L.O., EKITI STATE MINISTRY OF JUSTICE For Respondent(s)
