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ADESINA v. STATE (2022)

ADESINA v. STATE

(2022)LCN/16051(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, April 08, 2022

CA/IB/71C/2019

Before Our Lordships:

Folasade Ayodeji Ojo Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

RAMONI ADESINA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE ESSENCE OF A REPLY BRIEF

The essence of a Reply Brief is not to reopen arguments already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of Argument. It is not a forum for the Appellant to strengthen his main brief by repeating or expanding the arguments contained therein. See KOMOLAFE VS FEDERAL REPUBLIC OF NIGERIA (2018) 15 NWLR (PT. 1643)507; IDAGU VS STATE (2018) LPELR-44343 (SC); ZUBAIRU VS. STATE (2015) 16 NWLR (PT. 1486)504; GODSGIFT VS. STATE (2016) 13 NWLR (PT. 1530)444 AND ONWUDIWE VS. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (PT. 988)382.  PER OJO, J.C.A.

THE POSITION OF LAW ON THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON

​It is a well settled position of the law that an Accused Person is presumed innocent until he is proved guilty or his guilt is established beyond reasonable doubt. This is preserved in the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is the duty of the prosecution to prove the charge against the Accused Person but not for the accused to establish his innocence. See CHIDOZIE VS. COMMISSIONER OF POLICE (2018) 6 NWLR (PT. 1615)373; TAIYE VS. STATE (2018) 17 NWLR (PT. 1647)115; STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727)484; STATE VS. SHONTO (2019) 12 NWLR (PT. 1686)255 AND ITODO VS. STATE (2020) 1 NWLR (PT. 1704)1.

The burden placed on the prosecution in a criminal charge is a heavy one. Section 135(2) of the Evidence Act, 2011 provides that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. In other words, the prosecution must establish the guilt of the accused beyond reasonable doubt. This burden never shifts. Where the prosecution fails to prove its case beyond reasonable doubt, the accused must be discharged. See USMAN VS. STATE (2018) 15 NWLR (PT. 1642) 320; ADEGBITE VS. STATE (2018) 5 NWLR (PT. 1612) 183; EBENEZER VS STATE (2020) 8 NWLR (PT. 1727) 573; IGWE VS. THE PEOPLE OF LAGOS STATE (2021) 7 NWLR (PT. 1776) 425 AND MABA VS STATE (2021) 1 NWLR (PT. 1757) 353.
PER OJO, J.C.A.

THE INGREDIENTS OF THE OFFENCE OF MURDER

The law is settled that in a charge of murder, the burden is on the Prosecution to prove the following ingredients:
(a) That the deceased had died;
(b) That the death of the deceased was caused by the Accused; and
(c) That the act or omission of the Accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See AKPAKPAN VS. STATE (2021) 17 NWLR (PT. 1805)231; NJOKU VS. STATE (2021) 6 NWLR (PT. 1771)157; OKERE VS. INSPECTOR-GENERAL OF POLICE (2021) 5 NWLR (PT. 1770)537; UDOR VS. STATE (2014) 12 NWLR (PT. 1422)548 AND NWAEZE VS. STATE (1996) 2 NWLR (PT. 428)1.
The above ingredients must co-exist in order to ground a conviction for the offence of murder. In other words, the Prosecution would be held not to have discharged the burden placed on it where it fails to prove any of the ingredients of the offence.
PER OJO, J.C.A.

THE POSITION OF LAW ON THE BEST EVIDENCE THE PROSECUTION CAN PRESENT TO COURT

It is trite that the evidence of an eyewitness is one of the best evidence the Prosecution can present to the Court at a Criminal trial. Eyewitness account is reliable evidence provided the witness is truthful. See OPEKE VS. STATE (2021) 1 NWLR (PT. 1758)570; KUSHIMO VS. STATE (2021) 16 NWLR (PT. 1801)147; KAREEM VS. STATE (2021) 17 NWLR (PT. 1806)503; UDO VS. STATE (2018) 8 NWLR (PT. 1622)462 AND AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497)503. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court, Ilaro Judicial Division in Charge No.HCY/1C/2015 delivered on 6th of November, 2018 wherein the Appellant who stood trial for the offence of Murder was found guilty as charged and sentenced to death by hanging.

The Charge against the Appellant is as follows:
COUNT 1:
STATEMENT OF THE OFFENCE
MURDER, contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Vol. 1, Law of Ogun State of Nigeria.
PARTICULARS OF OFFENCE
RAMONI ADESINA (M) on or about the 16th day of June, 2013 at the Ile-baale, Imeko-Afon in the Aiyetoro Judicial Division stabbed Isiaka Lateef which resulted in his death on 20/6/2013.

The facts of the case as summarised by the learned trial Judge in his judgment is as follows:
​“The summary of the evidence of the Prosecution is that on the 16th of June 2013, there was an Egungun Festival at Imeko. Many people gathered at the house of the Father of the Accused, Sunday Adesina to pay him homage, he being one of the Chiefs of the Egungun group. A fight ensued between the Accused Person and the deceased Isiaka Lateef and the Accused Person stabbed the deceased in the abdomen and three other places and the intestine of the deceased came out. The deceased was rushed to the Imeko-Afon General Hospital and was later transferred to the Federal Medical Centre, Abeokuta where the deceased died. The Accused was arrested and he made a Confessional Statement.”

The Appellant pleaded not guilty to the charge and the case went to trial. At the trial, the Prosecution called eight witnesses. The Appellant testified in his own defence and did not call any witness. The learned trial Judge found the case against the Appellant proved beyond reasonable doubt. He held as follows in his judgment:
“In conclusion, I find that the Prosecution has proved all the ingredients of the offence of Murder in this case and has proved the charge of Murder against the Accused person beyond reasonable doubt. I hereby find the Accused Person guilty of Murder as charged.”

​Dissatisfied with the judgment of the trial Court, the Appellant has appealed to this Court. The original Notice of Appeal filed on 13th of November, 2018 is at pages 126 to 129 of the Record. The Notice of Appeal was amended pursuant to an Order of this Court. The Amended Notice of Appeal filed on 10th February, 2021 was deemed properly filed on 2nd of December, 2021.

In compliance with the Rules of this Court, parties filed and exchanged Briefs of Argument as follows:
1. The Appellant’s Brief of Argument settled by Chidi Anya, Esq filed on 2nd of March, 2021 was deemed duly filed on 2nd of December, 2021.
2. Respondent’s Brief of Argument settled by Oluwaseyilayo A. Ojo, Esq filed on 25th of October, 2021 was deemed duly filed on 2nd of December, 2021.
3. Appellant’s Reply Brief filed on 8th of November, 2021 was deemed duly filed on 2nd of December, 2021.

​The Appellant’s Counsel formulated the following two issues for determination:
1. Whether the Respondent has proved its case beyond reasonable doubt to have warranted the conviction of the Appellant by the lower Court.
(Grounds 2, 3 and 4 of the Amended Notice of Appeal)
2. Whether the Appellant’s right to fair hearing was in any way breached by the trial Court when it failed to address the issue raised by the Appellant’s Counsel that PW1-PW4 be considered as tainted witnesses. (Ground 1 of the Amended Notice of Appeal)

In his Brief of Argument, Counsel to the Respondent submitted the following lone issue for determination:
“Whether having regard to the circumstances of this case and the totality of the evidence, the lower Court was right to convict and sentence the Appellant as charged.”
(Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal)

I have carefully perused the issues nominated for determination by both parties and I am of the view that the two issues formulated on behalf of the Appellant will suffice. I shall however consider and determine the two issues together.

ISSUES 1 AND 2:
1. Whether the Respondent has proved its case beyond reasonable doubt to have warranted the conviction of the Appellant by the lower Court.
(Grounds 2, 3 and 4 of the Amended Notice of Appeal)
2. Whether the Appellant’s right to fair hearing was in any way breached by the trial Court when it failed to address the issue raised by the Appellant’s Counsel that PW1-PW4 be considered as tainted witnesses. (Ground 1 of the Amended Notice of Appeal)

Learned Counsel to the Appellant submitted that the evidence adduced by the Prosecution witnesses is riddled with inconsistencies and cannot sustain the charge. He argued that the inconsistencies between PW4 on one hand and that of PW1-PW3 create a doubt on whether PW4 was an eye witness. He also stated that there are contradictions in the evidence of PW5 and PW7 on how the Murder weapon (Exhibit 3) was recovered by the Police and also the date the Appellant was arrested. He contended that all these inconsistencies created a doubt in the case of the Prosecution and which doubt should enur in favour of the Appellant. He further submitted that the eye witness account of PW4 was unreliable as all other persons who he said witnessed the incidence gave evidence they did not witness the stabbing of the deceased.

​It is Appellant’s Counsel’s position that the contradictions and inconsistencies highlighted by him are material and substantial. He craved in aid of his submission the cases of ISIBOR VS. STATE (2002) LPELR- 1553(SC) AND ADOGA VS. STATE (2014) LPELR-22944(CA).

He conceded that where the Court believes the evidence of a single witness it may proceed to rely on it to convict an Accused Person but that where the evidence given by that witness is discredited under cross-examination or open to doubt, it will be wrong to rely on it.

On whether the evidence of PW1-PW4 should be treated as tainted evidence, he submitted that the learned trial Judge did not address the issue in his judgment and that failure to do so was a breach of the Appellant’s right to fair hearing. He craved in aid of his submission, the cases of NGGILARI VS. STATE & ORS (2017) LPELR-42985 (CA); MOBIL PRODUCING UNLTD VS. PEPPLE (2019) LPELR-47473(CA); PAN OCEAN OIL CORP. (NIG) LTD VS. FMON (NIG) LTD & ANOR (2018) LPELR- 44173(CA) AND OGUNDARE & ORS VS. ALAO (2013) LPELR- 21845(CA).

He relied on the cases of PIUS VS. THE STATE (2015) LPELR- 24446(SC) AND ITU VS. STATE (2016) LPELR- 26063(SC) on who a tainted witness is. He submitted that PW1-PW4 are tainted witnesses who should have been treated as such by the trial Court.

He finally urged us to allow the appeal, set aside the conviction of the Appellant and in its place enter a verdict of discharge and acquittal in his favour.

Arguing per contra, learned Counsel to the Respondent submitted that inconsistencies in the evidence of Witnesses will be deemed to be material if it is tied to the resolution of the main fact in the appeal and urged us to hold that the alleged inconsistencies highlighted by the Appellant are not on material facts. He cited the cases of CPL ISAH AHMED VS. THE NIGERIAN ARMY (2016) 17 NWLR (PT. 1540)34 AND ASUQUO VS. THE STATE (2016) 14 NWLR (PT. 1532)309.

He conceded that there exist inconsistencies in the evidence of PW5 and PW6 but argued that the inconsistencies are not on material facts. On the submission of Appellant’s Counsel that PW1-PW4 were tainted witnesses he submitted that there is nothing on record to show that the Witnesses have a purpose of their own to serve.

​He submitted that the Prosecution discharged the burden on it by proving beyond reasonable doubt that the victim is deceased and his death was caused by the Appellant with knowledge that death was the probable consequence of his action. He argued further that the fact that the Appellant retracted his Statement at the trial does not render it inadmissible.
He finally urged us to dismiss the appeal.

I have earlier on indicated that the Appellant filed a Reply Brief of Argument. In the Reply Brief, Counsel reargued the issue of inconsistencies and contradictions in the evidence of the Prosecution Witnesses. He harped on the need to corroborate the retracted confession contained in the Appellant’s extra-judicial statement. All these arguments were already canvassed in the Appellant’s Main Brief of Argument.

Order 19 Rule 5(1) Court of Appeal Rules, 2021 provides as follows:
“The Appellant may also, if necessary, within fourteen (14) days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent, a reply brief which shall deal with all new points and points of preliminary objection or any challenge to the appeal raised and argued in the Respondent’s Brief.”
​The essence of a Reply Brief is not to reopen arguments already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of Argument. It is not a forum for the Appellant to strengthen his main brief by repeating or expanding the arguments contained therein. See KOMOLAFE VS FEDERAL REPUBLIC OF NIGERIA (2018) 15 NWLR (PT. 1643)507; IDAGU VS STATE (2018) LPELR-44343 (SC); ZUBAIRU VS. STATE (2015) 16 NWLR (PT. 1486)504; GODSGIFT VS. STATE (2016) 13 NWLR (PT. 1530)444 AND ONWUDIWE VS. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (PT. 988)382. In this appeal, the Respondent did not raise any new issue which the Appellant needed to respond to. The Appellant filed a Reply Brief of Argument to have another bite at the Cherry. This will not be encouraged by this Court. Therefore, all the arguments made in violation of this principle in the Reply Brief are hereby discountenanced.

​It is a well settled position of the law that an Accused Person is presumed innocent until he is proved guilty or his guilt is established beyond reasonable doubt. This is preserved in the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is the duty of the prosecution to prove the charge against the Accused Person but not for the accused to establish his innocence. See CHIDOZIE VS. COMMISSIONER OF POLICE (2018) 6 NWLR (PT. 1615)373; TAIYE VS. STATE (2018) 17 NWLR (PT. 1647)115; STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727)484; STATE VS. SHONTO (2019) 12 NWLR (PT. 1686)255 AND ITODO VS. STATE (2020) 1 NWLR (PT. 1704)1.

The burden placed on the prosecution in a criminal charge is a heavy one. Section 135(2) of the Evidence Act, 2011 provides that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. In other words, the prosecution must establish the guilt of the accused beyond reasonable doubt. This burden never shifts. Where the prosecution fails to prove its case beyond reasonable doubt, the accused must be discharged. See USMAN VS. STATE (2018) 15 NWLR (PT. 1642) 320; ADEGBITE VS. STATE (2018) 5 NWLR (PT. 1612) 183; EBENEZER VS STATE (2020) 8 NWLR (PT. 1727) 573; IGWE VS. THE PEOPLE OF LAGOS STATE (2021) 7 NWLR (PT. 1776) 425 AND MABA VS STATE (2021) 1 NWLR (PT. 1757) 353.

​In the instant appeal, the Appellant was arraigned, tried, convicted and sentenced for the offence of murder contrary to Section 318 and punishable under Section 319 of the Criminal Code Law, Laws of Ogun State, 2006. The enormity of the penalty is such that a Court of law must before returning such verdict be satisfied that the prosecution has proved its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all iota of doubt. It simply means establishing the guilt of the accused person with cogent, compelling and conclusive evidence. Proof beyond reasonable doubt must therefore not be stretched beyond reasonable limit. It is attained where all the essential ingredients of the offence charged have been proved or established by the prosecution. See STATE VS. MUHAMMAD (2021) 3 NWLR (PT. 1763) 241; STATE VS. BUHARI (2019) 10 NWLR (PT. 1681) 583; UKPONG VS. STATE (2019) 6 NWLR (PT. 1667)1; HARUNA VS. STATE (2018) 11 NWLR (PT. 1631) 559 AND AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)143.

The law is settled that in a charge of murder, the burden is on the Prosecution to prove the following ingredients:
(a) That the deceased had died;
(b) That the death of the deceased was caused by the Accused; and
(c) That the act or omission of the Accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See AKPAKPAN VS. STATE (2021) 17 NWLR (PT. 1805)231; NJOKU VS. STATE (2021) 6 NWLR (PT. 1771)157; OKERE VS. INSPECTOR-GENERAL OF POLICE (2021) 5 NWLR (PT. 1770)537; UDOR VS. STATE (2014) 12 NWLR (PT. 1422)548 AND NWAEZE VS. STATE (1996) 2 NWLR (PT. 428)1.
The above ingredients must co-exist in order to ground a conviction for the offence of murder. In other words, the Prosecution would be held not to have discharged the burden placed on it where it fails to prove any of the ingredients of the offence.

Upon evaluation of facts and evidence before him, the learned trial Judge found the prosecution proved the three essential ingredients of the offence of murder against the Appellant. At paragraph 4.22 of the Appellant’s Brief, his Counsel conceded that the Prosecution proved the deceased died but that the other two ingredients were not proved.

​The question now is whether the prosecution has proved by credible evidence the other two ingredients of the offence of Murder i.e.
(1) That the death of the deceased was caused by the Accused and
(2) That the act or commission of the Accused which caused the death of the deceased was intentional and with the knowledge that death or grievous bodily harm was its probable consequence.

The settled position of the law is that the commission of crime may be proved by all or any of the three methods enumerated below:
1. By direct evidence of an eye witness;
2. By extra-judicial statement of the accused person which is confessional in nature and made voluntarily;
3. By circumstantial evidence, positive and which point to only one conclusion that the accused committed the offence.
See FAMUYIWA VS STATE (2018) 5 NWLR (PT. 1613)515; BILLE VS. STATE (2016) 15 NWLR (PT. 1536)363; ILODIGWE VS. STATE (2012) 18 NWLR (PT. 1331)1; ABIRIFON VS STATE (2013) 13 NWLR (PT. 1372)619 AND UGBOJI VS. STATE (2018) 10 NWLR (PT. 1127)346.

​I have carefully perused the printed Record and it is evident that the Prosecution relied on the three methods to prove the guilt of the Appellant. In his oral testimony at the trial, one Amusa Waliu who testified as PW4 stated that his father Azeez Amusa who carried the Masquerade Paraphernalia on the day of the incident danced along with others to the house of the Appellant’s father (Sunday Adesina). He said when they got there some of them went inside the house while others stayed outside. It was while inside the house that he heard some noise from outside that the deceased and the Appellant were fighting. He went outside and saw the Appellant enter his father’s house brought out a knife and stabbed the deceased.

It is trite that the evidence of an eyewitness is one of the best evidence the Prosecution can present to the Court at a Criminal trial. Eyewitness account is reliable evidence provided the witness is truthful. See OPEKE VS. STATE (2021) 1 NWLR (PT. 1758)570; KUSHIMO VS. STATE (2021) 16 NWLR (PT. 1801)147; KAREEM VS. STATE (2021) 17 NWLR (PT. 1806)503; UDO VS. STATE (2018) 8 NWLR (PT. 1622)462 AND AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497)503.

​The evidence of PW4 is an eye witness account of the incident. Learned Counsel to the Appellant has however argued that the eye witness account given by PW4 is inconsistent with the evidence of the other Prosecution Witnesses. He stated that contrary to the evidence of PW4 that PW1, PW2 and PW3 witnessed the fight, their evidence is that they were not present at the scene when the Appellant stabbed the deceased.

In the case of ASANYA VS STATE (1991) 3 NWLR (PT. 180)422 AT 446, PARAGRAPHS C-F, the Supreme Court per Nnaemeka-Agu, JSC held as follows:
“What then is the meaning of “inconsistent” in relation to the law of evidence? A number of definitions have been suggested. But the one I find most appropriate is that in Black’s Law Dictionary (5th Edn.) p.6189. Citing a judicial opinion in Barry v. City of Forth Worth, Tex. Civ. App.110 S.W. 2nd 95, 103, the learned author stated that two pieces of evidence are inconsistent when they are –
“Mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.”
In other words, two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true the other must be false because they are essentially contradictory. This is the sense in which the word has been understood in many decisions of this Court. See – Isaac Stephen vs. The State (1986) 5 NWLR (Pt.46) 978, p.1000; R. vs. Ukpong (1961) 1 All NLR 25; (1961) 1 SCNLR 53, Onubogu & Anor. vs. The State (1974)9 S.C. 1.”
It is settled that two sets of evidence are inconsistent if they are mutually exclusive such that one is true and the other is false. In other words, a witness is said to give inconsistent evidence if he or she gives evidence that is materially contradictory to the other.  I wish to emphasize that there is a distinction between when a piece of evidence is contradictory and when it constitutes a discrepancy. ​A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated. In such circumstance, the witness who gives such evidence is said to have given inconsistent evidence. However, a discrepancy occurs when a piece of evidence says or contains some differences in details. Undoubtedly when two or more persons are called as witnesses to say what they saw on a particular incident, there are bound to be discrepancies in those testimonies in respect of details. Courts of law have therefore been enjoined to concentrate on material facts and not on peripherals that have no bearing on the substance of the case. Minor contradictions which do not affect the credibility of witnesses will not avail the accused person. See AYINDE VS STATE (2019) 12 NWLR (PT. 1687)410; NWANKWOALA VS FEDERAL REPUBLIC OF NIGERIA (2018) 11 NWLR (PT. 1631)397; DAGAYYA VS. STATE (2006) 7 NWLR (PT. 980)637; MUSA VS STATE (2009) 15 NWLR (PT. 1165)465; EGWUMI VS THE STATE (2013) 13 NWLR (PT. 1372)525 AND GABRIEL VS. STATE (1989) 5 NWLR (PT. 122)457.

At page 49 of the printed Record, PW4 stated under cross-examination as follows:
“…. I do not know whether there was a clash or fight between the two factions of O.P.C. on 16th June, 2013. On that day my friends that were outside the house of Sunday Adesina were Tajudeen Alamu, Yusuf Olaegbe, Olaniyi Fadele they were the ones who witnessed the fight. The Accused person fought with Isiaka (the deceased) and Tajudeen (PW1) …….”

PW2 admitted he was not at the scene of crime during the fight. The evidence of PW1 is that he saw the Appellant with a knife with the deceased’s intestine protruding outside his stomach. He did not witness the stabbing. PW3’s testimony is that he witnessed the fight between the Appellant and the deceased but did not see when the stabbing took place. The main issue before the trial Court was whether it was the Appellant that stabbed the deceased. It is not the evidence of PW1, PW2, PW3 that it was not the Appellant that stabbed the deceased. The inconsistency in their evidence is on whether or not they witnessed the stabbing. To my mind, the discrepancy in their evidence is minor and would not affect the substance of who stabbed the deceased. It would not affect the evidence of PW4 that he saw the Appellant take a knife with which he stabbed the deceased. Whatever discrepancy is in their evidence does not derogate from the fact in issue which is whether or not the Appellant stabbed the deceased.

The Appellant further submitted that the evidence of PW5 and PW7 the investigating Police Officers contradict each other. I have perused the evidence of the two witnesses and I am of the view that the discrepancies if any are not on material facts and I so hold. They are minor and do not affect the substance of the ingredients that require proof. After all, they are human beings whose perception and appreciation of incidents differ. It would be out of touch with reality to expect one hundred percent accuracy in the recollection of two or more people who observed the same incident simultaneously. It must be stressed that it is not all instances of discrepancies or contradictions in the evidence of Prosecution Witnesses that are fatal. An Accused Person would only benefit from such discrepancies if and only if they are on material facts. See BABATUNDE VS. STATE (2014) 2 NWLR (PT. 1391)298; AKINDIPE VS. STATE (2012) 16 NWLR (PT. 1325)94; AKPABIO VS. THE STATE (1994) 7 NWLR (PT. 359)635; THEOPHILUS VS. STATE (1996)1 NWLR (PT. 423) PG. 139 AND WANKEY VS. STATE (1993) 5 NWLR (PT.295) 542 AT 552.

​The alleged inconsistencies and contradictions in the evidence of the Prosecution Witnesses are not such that would cause a reasonable and prudent person to pause and hesitate to act upon the truth of the matter. I therefore hold that contrary to submissions made on behalf of the Appellant the said inconsistencies and contradictions did not create any doubt in the case presented by the Prosecution at the trial.

It is the law that circumstantial evidence is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is a combination of evidence of circumstances against an accused which when taken together, create strong conclusion of his guilt with high degree of certainty. For circumstantial evidence to ground a conviction, it must lead to one irresistible conclusion, that is, the guilt of the accused. Any slight doubt must leave room for an acquittal. See ILIYASU VS. STATE (2015) 11 NWLR (PT. 1469)26; OKETAOLEGUN VS. STATE (2015) 13 NWLR (PT. 1477)538; OMOREGIE VS STATE (2018) 2 NWLR (PT. 1604)107; STATE VS. SUNDAY (2019) 9 NWLR (PT. 1676)115.

​PW3 testified that the Appellant fought with the deceased. He (PW3) and others went out of the sitting room to separate them. They went back into the sitting room where they were informed the Appellant had stabbed the deceased. When he got outside, he saw the Appellant with a knife in his hand and the intestine of the deceased (who he had been fighting with) were out of his stomach.

In his own oral evidence, PW1 stated under the sanctity of oath that on the date of the incidence, the Appellant fought and boxed him. That Appellant’s father intervened by taking him (PW1) into his sitting room. It was while he was in the sitting room that he heard some noise. When he got outside he saw the Appellant holding a knife and saw the intestine of the deceased out of his stomach. Premised on this, the learned trial Judge drew an inference that the Appellant who was seen fighting the deceased and who was later seen to be holding a knife while the deceased’s stomach had been slit was the one who stabbed the deceased.

Section 167 of the Evidence Act, 2011 provides as follows:
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, …..
​Section 167 (supra) empowers the Court to draw inferences from known facts bearing in mind the common course of natural events. Hence where there are a number of circumstances not from direct testimony of eye witnesses, which are accepted so as to make a complete and unbroken chain of evidence if established to the satisfaction of the Court pointing unequivocally and forcibly to the commission of the offence, the Court can safely act upon such evidence. See UNILORIN VS. OBAYAN (2018) 13 NWLR (PT. 1635)72; STATE VS. USMAN (2005) 1 NWLR (PT. 906)80; AKINMOJU VS. STATE (2000) 6 NWLR (PT. 662)608; ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR (PT. 1120)1; HIGHGRADE MARITIME SERVICES LIMITED VS. FIRST BANK OF NIGERIA LIMITED (1991) 1 NWLR (PT. 167)290 AND UKORAH VS. STATE (1977) 4 SC. 167.
A Court may therefore presume that a man who engages in a fight with another and who was later found with a knife while the person he had fought with had been stabbed is the one who stabbed him. The Appellant was not able to rebut this presumption throughout the trial. I cannot fault the learned trial Judge when he relied on the foregoing circumstantial evidence to hold as follows:
“I find the circumstantial evidence in this case very compelling and it is more so because it is corroborated by direct eye witness account, even without considering other forms of evidence available. I have no problem in holding that the evidence of PW1 and PW3 fixed the Accused Person to the scene of the crime.”

​The Appellant made extra-judicial statements at the Imeko Divisional Police Officer and at the State Criminal Investigation Department, Police Headquarters, Eleweran, Abeokuta. The two statements were admitted in evidence as Exhibits 1 and 2 respectively.

A copy of Exhibit 1 is at pages 9 to 9A of the printed Record. There the Appellant admitted there was a fight between him and PW1. That the deceased interfered and he got angry and used a knife to stab him in a dangerous part of his body. Having done so, he (Appellant) ran away and hid himself in a bush till the following morning. He returned to his father’s residence and it was there he was arrested. He admitted same in Exhibit 2.

​A confession is an acknowledgment in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. Section 28 of the Evidence Act has provided that a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. Once it is established that the confession was freely and voluntarily made it is admissible in evidence and should not be taken lightly being one from the Accused Person himself. See OFFOR VS. STATE (2021) 18 NWLR (PT. 1807)31; DONDOS VS. STATE (2021) 9 NWLR (PT. 1780)24; AKIBU VS. STATE (2019) 11 NWLR (PT. 1684)433; EYOP VS. STATE (2018) 6 NWLR (PT. 1615)273.

The extra-judicial statements made by the Appellant (Exhibits 1 and 2) are confessional in nature. He however retracted this confession in his defence at the trial. The position of the law on retracted statement is well settled. It is that the retraction of a confessional statement by an accused person in his oral testimony in Court during trial is of no moment. The most important thing is that the Court must be satisfied as to the truth of the confession and can rely on it alone to ground conviction. See SAMAILA VS. STATE (2021) 4 NWLR (PT. 1767)528; ADAMU VS. STATE (2019) 8 NWLR (PT. 1675)478; ASUQUO VS. STATE (2016) 14 NWLR (PT. 1532)309; STATE VS. MASIGA (2018) 8 NWLR (PT. 1622)383. It is however desirable that the Court should look for some corroborative evidence outside the Confessional Statement no matter how slight. Where an Accused Person retracts his statement at the trial, the trial Judge must examine the evidence led in order to see if there is independent evidence to corroborate the confessional statement. The best way to go about it is by subjecting the confession to the under listed six way test namely:

(a) is there anything outside the confession to show that it is true?
(b) is the confessional statement corroborated?
(c) are the statement made in it of facts and so far as we can test them true?
(d) is the accused person a person who had the opportunity of committing the offence?
(e) is the confession possible?
(f) is it consistent with other facts which have been ascertained and which have been proved at the trial?
See IFEDAYO VS. STATE (2019) 3 NWLR (PT. 1659)265; STATE VS. YAHAYA (2019) 13 NWLR (PT. 1690)387; MOHAMMED VS. STATE (2019) 6 NWLR (PT. 1668)203; TOBI VS. STATE (2019) 8 NWLR (PT. 1673)74.

​The learned trial Judge applied the foregoing test when he held at pages 123 to 124 of the printed Record as follows:
“In the instant case, the Accused person made confessional statements at both the Imeko Police Divisional level and at the State C.I.D. Police Headquarters, Eleweran, Abeokuta. His Counsel did not object to the admissibility of the statements but said that the Accused person would retract the statement made at the State C.I.D. (Exhibit P2). I have already analysed and evaluated other evidence available in this case which makes the confessional statements of the Accused Person satisfy the principles for testing the veracity of confessional statements earlier stated. See OKOH V. STATE (supra), the evidence of PW4, an eye witness, the circumstantial evidence of PW1 and PW3 and the evidence of PW5, PW6 and PW7 who all investigated or participated in investigating the crime.”

By Exhibits 1 and 2, the Appellant confessed that he stabbed the deceased with a stainless steel knife. In Exhibit 2 he specifically stated that he stabbed the deceased in a dangerous part of his body. That he did so intentionally to revenge the misunderstanding they had in the past.

​Courts have consistently maintained that proof of motive on the part of an Accused on a charge of murder is not a sine qua non (of great importance) to his conviction for the offence. See ABDULLAHI VS. STATE (2018) 16 NWLR (PT. 1644)121; UBANI VS. STATE (2003) 18 NWLR (PT. 851)224; NWEKE VS. STATE (2001) 4 NWLR (PT. 704)588; MADJEMU VS. STATE (2001) 9 NWLR (PT. 718)349; JIMOH ISHOLA VS. THE STATE (1978) 9-10 S.C.81 AT 104 AND YEKINI WAHABI OKUNNU VS. THE STATE (1977) 3 S.C.151 AT 161.

The Appellant, vide Exhibit 2 did more than confess that he stabbed the deceased. He further confessed that he intentionally stabbed the deceased in a dangerous part of the body to revenge past misunderstanding between them. He admitted it was his act that killed the deceased and he did it with the intention that death or grievous bodily harm may be occasioned. Through his confession, the second and third ingredients required to sustain conviction for the offence of murder was proved beyond reasonable doubt.

Having said that, it is clear that the Prosecution/Respondent proved its case against the Appellant beyond reasonable doubt. I resolve Issue No. 1 in favour of the Respondent and against the Appellant.

​In his arguments under Issue No. 2, learned Counsel for the Appellant submitted that the trial Court which was urged to treat PW1-PW4 as tainted witnesses failed to pronounce on this issue. His contention is that the Appellant’s right to fair hearing was thus breached.

​Now, the law is trite that a Court has a duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it has failed to do so, it may not necessarily result into miscarriage of justice or breach of the right to fair hearing. The law is further settled that where a trial Court fails to avert its mind and treat all issues in controversy fully and there is sufficient material before the Appellate Court for the resolution of the matter, an Order of retrial will not be made. See BI-COURTNEY LIMITED VS. ATTORNEY-GENERAL OF THE FEDERATION (2019) 10 NWLR (PT. 1679)112; STATE VS. AJIE (2000) 11 NWLR (PT. 678)434; ADEBAYO VS. ATTORNEY-GENERAL OF OGUN STATE (2008) 7 NWLR (PT. 1085)201; UNIVERSITY OF CALABAR VS. AKINTUNDE (2013) 3 NWLR (PT. 1340)1; OSASONA VS. AJAYI (2004) 14 NWLR (PT. 894)527; OKEOWO VS. MIGLIORE & ORS. (1979) ANLR 280; AWOTE VS. OWODUNNI (NO. 2) (1987) 2 NWLR (PT. 57)366.

The learned trial Judge did not pronounce on the effect of the Appellant’s submission that PW1-PW4 are tainted witnesses. There is however sufficient evidence on record on which this Court can consider the issue. This is one instance where this Court can exercise its powers to look into the allegation.

It is trite that a tainted witness is a person who may or may not be an accomplice but who by the evidence he gives (whether as witness for the prosecution or for the defence) may be regarded as having some purpose of his own to serve. What is paramount is that the party seeking to declare a person as a tainted witness must satisfy the Court through evidence led on record that the witness has some personal purpose to serve. The evidence adduced by a tainted witness is not reliable. It should be treated with considerable caution and examined with a tooth comb. It should not be relied upon by the trial Court without some corroboration. A witness who comes to Court to tell the truth cannot be declared as a tainted witness. See OCHANI VS STATE (2017) 18 NWLR (PT. 1596)1; UZIM VS. STATE (2019) 14 NWLR (PT. 1693)419; EGWUMI VS STATE (2013) 13 NWLR (PT. 1372)525; MBENU VS. STATE (1988) 3 NWLR (PT. 84)615; AMINU VS STATE (2020) 6 NWLR (PT. 1720)197.

​In support of his submission that PW1-PW4 are tainted witnesses, Counsel to the Appellant referred us to the evidence that they belong to rival factions of the Oodua Peoples’s Congress. I have carefully examined the evidence given by witnesses called by the parties. I cannot see where the Appellant established the existence of bad blood between members of the Gani Adams led faction of Oodua Peoples’ Congress and that led by Dr. Frederick Fasheun. From evidence elicited from PW2 under cross-examination, the Appellant’s father is the Chairman of the Gani Adams faction of the Oodua Peoples’ Congress. There is evidence that PW4’s father and others who are members of the Dr. Fasheun faction went to the house of the Appellant’s father to celebrate a masquerade event. If belonging to rival groups did not stop them from felicitating with each other during masquerade event, then there is no bad blood amongst them to warrant them giving evidence against the son of the man they hold in reverence as the “Agba Oje” (the head of all Masquerade groups). There is nothing on record to suggest that the Witnesses were biased in any way or that they had any purpose to serve by implicating the Appellant. They are not tainted Witnesses and I so hold. Issue No. 2 is therefore resolved in favour of the Respondent and against the Appellant.

Having resolved the two issues nominated for consideration of this appeal against the Appellant and in favour of the Respondent it follows that this appeal lacks merit. It fails and it is accordingly dismissed. I affirm the judgment of the Ogun State High Court of Justice delivered on 6th of November, 2018, in Suit No. HCV/1C/2015.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment in this appeal, prepared by my learned brother, FOLASHADE AYODEJI OJO, JCA, a draft copy of which was made available to me before now, has exhaustively dealt with the two issues formulated by the Appellant for the determination of the appeal. The issues were so comprehensively covered that any attempt to discuss it will amount to repetition of the content of the leading judgment. I do not intend to embark on that repetitious exercise. My duty here is to express my total concurrence with the lead judgment which dismissed the appeal, with nothing more to add. There is no scintilla of merit in this appeal. I also dismiss it without much ado.

ABBA BELLO MOHAMMED, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. I fully concur with the elaborate reasons and conclusions stated therein.

In proof of its case against the Appellant, the Prosecution had relied on the evidence of eye witnesses especially PW4 who saw the actual commission of the crime, as well as the confessional statements of the Appellant (Exhibit 1 and 2). It is settled law that a trial Court can convict on the evidence of a single eye witness once the evidence is found to be cogent and credible. See: ADISA v STATE (2014) LPELR-24221 SC. per Muntaka-Commassie. JSC at pages 28—29. paras. F—A: and MOHAMMED v STATE (1991) 5 NWLR (Pt. 192) 438 at 442. 

It is also trite that the retraction of a confessional statement does not render same inadmissible. Rather it invites the Court to test the veracity of the confessional statement against other evidence in order to determine the weight to be attached to it. See: BISI v STATE (2021) LPELR-56680(SC). per Eko. JSC at page 25. Para. B: and MOHAMMED v STATE (2014) LPELR-22916(SC). per Muhammad, JSC at pages 54-55. paras. E- B. In fact, a trial Court can convict on a retracted confession once satisfied as to its veracity: NEMI & ORS v. STATE (1994) LPELR-24854(SC). per Bello, JSC (as he then was) at pages 41—42. paras. D— A.

In the instant appeal, the evidence of PW4 who saw the actual commission of the crime by the Appellant, as well as PW1, PW2 and PW3 who testified as to what happened immediately before and immediately after, all corroborate the confessional statements of the Appellant in Exhibits 1 and 2. The trial Court had in my view rightly relied on same. The contention of the Appellant to the effect that there are contradictions in the testimonies of the Prosecution witnesses is unsubstantiated by the evidence on record. As elaborated in the lead judgment just delivered, what the Appellants referred to as contradictions are actually the usual discrepancies or differences expected in testimonies of individual witnesses while giving account of the same incident. These cannot be regarded as contradictions. It is only when evidence asserts the opposite of another that it is contradictory of that other: DAGAYYA v STATE (2006) LPELR-912(SC). per Mohammed, JSC at pages 45—46. paras. F— D.

I am in full agreement that from the evidence on record the trial Court was right on relying on the eye witness evidence of PW4; the confessional Statements of the Appellant in Exhibits 1 and 2; as well as the circumstantial evidence as deduced from the testimonies of the other Prosecution witnesses, in convicting the Appellant for the offence of murder and in sentencing him accordingly.

It is for this and all the reasons which have been more succinctly elaborated in the lead judgment, that I also find no merit in this appeal. I accordingly join in dismissing same and affirming the judgment of the trial Court delivered on 6th November, 2018 in suit No. HCV/1C/2015.

Appearances:

Chidi Anya, Esq. with him Abiola Lamina For Appellant(s)

Oluwaseyi Layo Ojo, Esq. For Respondent(s)