AKPUTA v. STATE
(2020)LCN/14808(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/E/91C/2019
RATIO
CRIMINAL LAW: DUTY OF COURT TO PROVIDE AN INTERPRETER TO AN ACCUSED WHO DOES NOT UNDERSTAND ENGLISH
Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that:
(6) “Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
I must state clearly the fact that an accused elects to speak in his native language or any other language apart from English Language which is the language of the Court does not automatically lead to a conclusion that he is an illiterate or that he cannot speak, understand or write in English language. By virtue of Section 36 (6) (e) of the Constitution, every person who is charged with a criminal offence shall be entitled to the assistance of an interpreter if he cannot understand the language used at his trial for a criminal offence. The Constitution must be interpreted as the authors intended it. It is clear from the wordings of the Constitution that for an accused to get the assistance of an interpreter, he or his counsel has to inform the Court that he does not understand the language being used at his trial. PER BOLAJI-YUSUFF, J.C.A.
CRIMINAL LAW: EFFECT OF ABSENCE OF AN INTERPRETER IN A CRIMINAL TRIAL WHERE THE ACCUSED PERSON DOES NOT UNDERSTAND THE PROCEEDINGS
it is settled law that the absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the trial Court is a clear violation of his constitutional right, but it does not render the whole trial “null and void.” It is only the testimony of witnesses whose evidence was established not to have been interpreted as required by law that needs to be expunged from the records. In MADU V. STATE (1997) LPELR-1808 (SC) AT 32 (B-E), the Supreme Court per IGUH ,J.S.C . held as follows:
“Without doubt, the main purpose of the provision of Section 33(6)(e) of the 1979 Constitution is for an accused person to understand the proceedings of the Court that is called upon to try allegations of crime against him. The absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the Court is a clear violation of his constitutional right and a denial of his right to fair hearing. But as this Court observed per the leading judgment of Akpata, J.S.C. in Edwin Ogba v. The State (1992) 2 NWLR (Pt.222) 164. “A reasonable person who was present in Court and observed that an accused had the assistance of an interpreter would be impressed that the accused had a fair hearing and that justice had been done. He would be unaffected by the absence from the Court’s record of the assistance rendered to the accused by way of interpretation.”
See also NWACHUKWU V. STATE (2007) LPELR-8075 (SC) AT 17-18(F-D). See EGWUMI V STATE (SUPRA). PER BOLAJI-YUSUFF, J.C.A.
ILLITERACY: PROOF OF ILLITERACY
Contrary to the argument of the appellant’s counsel that the appellant is presumed to be an illiterate because of the level of his education, the issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the Court. Illiteracy cannot be proved by the speculation, conjecture and presumption of counsel in a brief of argument. See ANAEZE V. ANYASO (1993) LPELR- 480(SC) AT 19-20 (G-A). JEJE V ENTERPRISE BANK LTD. & ORS. (2015) LPELR-24829 (CA) AT 28-33(C-A). PER BOLAJI-YUSUFF, J.C.A.
COURT: WHETHER A COURT DECIDE A CASE BASED ON ASSUMPTIONS AND SPECULATIONS
It is settled that a Court should not decide a case on mere assumption, conjecture or speculation. The Courts decide issues on facts established by legally admissible evidence properly placed before them and the applicable law, never on speculation and conjecture. See ADEGBITE V. STATE (2017) LPELR-42585 (SC) AT 13-14 (C-B). CHUKWU & ANOR. V.CHUKWU & ORS. (2018) LPELR-45482 (CA) AT 47-48 (F-B). PER BOLAJI-YUSUFF, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
NWIBOKO AKPUTA APPELANT(S)
And
THE STATE RESPONDENT(S)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HAB/13C/2014 on 19/9/2018. The appellant and one other person were arraigned before the Court on a one count charge of murder contrary to Section 319(1) of the Criminal Code Law, Cap 33 Volume 1, Laws of Ebonyi State of Nigeria, 2009. They were alleged to have killed Chukwuma Akputa, the appellant’s brother on 13/7/2013 at Ogozorunwenya, Abakaliki Judicial Division, Ebonyi State.
The case of the prosecution was that the appellant called the deceased on phone and lured him to a bush where the appellant and his co-accused attacked and stabbed him to death with daggers. When the deceased did not return home, he was declared missing and a search party was organised to look for him. The appellant joined the search party. The matter was reported to the police. Based on their investigation, the appellant confessed that he and the 2nd accused killed the deceased. He took the police and the villagers to where the body of the deceased was dumped.
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The prosecution called 5 witnesses and tendered exhibits including the extra judicial statements of the appellant admitted as exhibits D and H. The appellant as the 1st accused testified in his own defence and called no other witness. The 2nd accused also testified in his defence. The Court below in its considered judgment delivered by A. N. NWANKWO, J. found the appellant guilty of murder and sentenced him to death. The 2nd accused was found not guilty. He was discharged and acquitted.
The appellant being dissatisfied with the judgment filed a notice of appeal on 18/12/8. An amended notice of appeal was filed on 15/5/20 pursuant to the leave to amend the notice of appeal granted by this court on 4/5/20. The grounds of appeal without their particulars are as follows:
GROUND 1 – ERROR IN LAW
“The learned trial judge erred in law when he admitted exhibits D and H in evidence as evidence of its contents and attached probative value to them. Rather than same being used only for the purpose of cross examination.
GROUND 2 – ERROR IN LAW
The learned trial judge erred in law when he held that the prosecution proved the
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charge of murder against the appellant and convicted him based on the alleged confession without corroborative evidence of circumstances which made it probable that the confession is true and correct.
GROUND 3 – ERROR IN LAW
The trial Court misdirected itself when he held, applying the doctrine of last seen, that the deceased was last seen with the appellant.
GROUND 4 – ERROR IN LAW
The trial Court erred in law when it admitted and placed heavy reliance on exhibits D and H (unproven extra-judicial statement of the accused/appellant) in holding that the guilt of the accused/appellant was proven beyond doubt as to ground conviction.
GROUND 5 – ERROR IN LAW
The trial Court misdirected itself as to the evidence before the Court when it accepted the evidence of PW3 and acted on same in convicting the accused/appellant without any evidence of proper identification of the corpse of the alleged deceased to the said PW3, which said misdirection occasioned miscarriage of justice the accused/appellant.
GROUND 6 – ERROR IN LAW
The trial Court erred in law when it conducted trial within trial during which the
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proceedings were not interpreted to the appellant which said failure occasioned miscarriage of justice.”
The appellant’s brief of argument was filed on 9/10/20. The respondent’s brief was filed on 15/5/20. Both briefs were deemed as properly filed and served on 15/10/20. The appellant raised the following issues for determination:
1. “Whether the trial Court was right in admitting exhibits “D” and “H” and placing heavy reliance on same in convicting the appellant, being that the said exhibits are extra judicial statements recorded without evidence of which language it was spoken and/or proper interpretation.
2. Whether the trial Court was right in holding that the prosecution proved its case beyond reasonable doubt to secure conviction of the appellant even without any evidence of proper identification of the alleged corpse of the deceased.
3. Whether the trial Court was right in holding that the doctrine of last seen applied in this matter and operated to render the accused/appellant liable to conviction.
4. Whether the whole process of trial within trial was not a nullity for
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failure to interpret the proceeding.”
The respondent raised the following issues for determination:
1. “Whether the evidence of PW1, PW2 and PW4 on the fact that the appellant confessed to the murder of the deceased and further took the police and villagers to where he dumped the corpse of the deceased after stabbing him to death could have been dismissed as being irrelevant; and whether those pieces of evidence were not cogent and compelling enough even without his written extra-judicial confessions to ground his conviction in a murder trial.
2. Whether the trial Court was right in law when he held that the prosecution proved its case beyond reasonable doubts and therefore convicted the appellant and sentenced him to death.”
I have considered the issues raised by counsel to both parties with the grounds of appeal. I find the issues formulated by the appellant to be apt for the determination of this appeal.
Issues 1 and 4 shall be considered together as both issues relate to statements of the appellant, exhibits D and H. On those issues, the appellant’s counsel contended that the language in
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which the appellant made his statement before being recorded in English language is not clear and was not proven by the prosecution. Therefore, the authenticity of the content of the statement is doubtful and the statement cannot be said to have been proven. The Court cannot rely on it to convict the accused. He argued that the appellant who is a primary five school dropout is presumed to be an illiterate and it is hard to assume that such a person is proficient enough to use the English language contained in exhibits D and H.
He further argued that the likelihood of the appellant being an illiterate in English language manifested when he readily chose to speak in Izzi dialect of Igbo language. He further contended that the trial within trial is a nullity because there is no evidence that there was a sworn interpreter to interpret the appellant’s evidence from Izzi dialect of Igbo language to English language and vice versa and the evidence of PW1 in the trial within trial was not interpreted to the understanding of the appellant. He referred to MSUGHANDO V. THE STATE (FAC/K/61/79 of 31/7/79 cited in the book titled DIGEST OF APPEAL CASES by OLAKUNLE OROJO (1980) AT PAGES 109-110
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BURAIMOH AJAYI V. ZARIA N.A. (1964) NNLR 61 AT 63.
In response, the respondent’s counsel submitted that the appellant never stated that he is an illiterate. He merely stated the level of his education as first school leaving certificate and there was no evidence that he could not read or write in English language. He referred to FRANCIS ANAEZE V. UDE ANYASO (1993) 5 NWLR (PT.291)1.
RESOLUTION
Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that:
(6) “Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on
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the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
I must state clearly the fact that an accused elects to speak in his native language or any other language apart from English Language which is the language of the Court does not automatically lead to a conclusion that he is an illiterate or that he cannot speak, understand or write in English language. By virtue of Section 36 (6) (e) of the Constitution, every person who is charged with a criminal offence shall be entitled to the assistance of an interpreter if he cannot understand the language used at his trial for a criminal offence. The Constitution must be interpreted as the authors intended it. It is clear from the wordings of the Constitution that for an accused to get the assistance of an interpreter, he or his counsel has to inform the Court that he does not understand the language being used at his trial. The appellant was represented by counsel throughout the trial including the trial within trial. It was
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the duty of the appellant to raise objection to the alleged non-provision of a sworn interpreter at the trial within trial as it is settled that objection to non-provision of an interpreter must be taken at the trial not on appeal. See MAMMAN V. STATE (2017) LPELR-43188 (CA). Neither the appellant nor his counsel informed the Court that he did not understand the language used during trial within trial or requested for the assistance of a sworn interpreter.
Neither the appellant nor his counsel raised objection on the alleged absence of an interpreter. The appellant having participated in the trial within trial without any complaint as to the procedure adopted or any irregularity during the trial within trial, he cannot be heard to complain for the first time on appeal about any irregularity in the trial within trial. In NWOKOCHA V. A.G. (IMO STATE) (2016) LPELR-40077(SC) AT 46 (A-C), the Supreme Court per PETER-ODILI, J.S.C. held as follows:
“Interestingly the question raised on whether or not an interpreter was used is only just being raised at this stage in the Brief of the Appellant and it is noted that at the time of the plea, the appellant
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was represented by counsel and no objection raised at any point on the matter of interpreter or any part of the proceedings. That being the case the right to so object later is lost for all time. I rely on State v. Salihu Mohammed Gwonto & Ors. (1983) 1 ACNJ 142; Anyanwu v. The State (supra) 1355.”
See also EGWUMI V STATE (2013) LPELR- 20091(SC) AT 11 (C-F). BAALO V. FRN (2016) LPELR-40500 (SC) AT 29-30 (E-A). SALEH V. STATE (2018) LPELR-46337(SC) AT 18 (B-E).
The argument of the appellant’s counsel that failure to interpret the evidence of the appellant from Izzi dialect of Igbo language to the Court in English language and the Court’s language to the appellant might be the reason why the Court did not get the whole gist of the appellant’s testimony which bothers on retraction instead of involuntariness is totally baseless and untenable. The proceedings of the Court below at pages 104-105 of the record of appeal clearly shows that when the prosecution applied to tender the statement of the appellant, exhibit D through PW4, the appellant’s counsel raised objection to the admissibility of the statement on the ground
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that the appellant was tortured to make the statement. The appellant’s counsel applied for trial within trial to determine the voluntariness or otherwise of the appellant in making the statement. The Court in line with the settled position of the law granted the prayer and a trial within trial was conducted. The appellant participated in the trial within trial and a ruling was delivered. The Court overruled the objection. The appellant’s statement made on 15/7/2013 was admitted as exhibit D. When the prosecution applied to tender the appellant’s statement made on 17/7/2013 through PW5, no objection was raised to the admissibility of the statement at all. The statement together with attestation form were admitted as exhibits H and H1. The alleged absence of a sworn interpreter has not rendered the entire proceedings void because the complaint of the appellant is only about his own evidence which as stated above has no basis. His complaint about exhibit D was clearly stated and understood by the Court. It is futile for the appellant to argue on appeal that his evidence borders on retraction. Even if there was need for an interpreter, the
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absence of an interpreter will affect his own evidence only since it is settled law that the absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the trial Court is a clear violation of his constitutional right, but it does not render the whole trial “null and void.” It is only the testimony of witnesses whose evidence was established not to have been interpreted as required by law that needs to be expunged from the records. In MADU V. STATE (1997) LPELR-1808 (SC) AT 32 (B-E), the Supreme Court per IGUH ,J.S.C . held as follows:
“Without doubt, the main purpose of the provision of Section 33(6)(e) of the 1979 Constitution is for an accused person to understand the proceedings of the Court that is called upon to try allegations of crime against him. The absence of an interpreter in a criminal trial where the accused person does not understand the proceedings of the Court is a clear violation of his constitutional right and a denial of his right to fair hearing. But as this Court observed per the leading judgment of Akpata, J.S.C. in Edwin Ogba v. The State
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(1992) 2 NWLR (Pt.222) 164. “A reasonable person who was present in Court and observed that an accused had the assistance of an interpreter would be impressed that the accused had a fair hearing and that justice had been done. He would be unaffected by the absence from the Court’s record of the assistance rendered to the accused by way of interpretation.”
See also NWACHUKWU V. STATE (2007) LPELR-8075 (SC) AT 17-18(F-D). See EGWUMI V STATE (SUPRA).
Contrary to the submission of the appellant’s counsel that PW4 did not state the language in which the appellant made his statement to the police, PW4 (PW1 in the trial within trial) in his evidence in chief at page 106 of the record during trial within trial categorically stated that the appellant volunteered his statement in English Language. He was not cross examined on that evidence. It is clearly stated on exhibit H that the appellant’s statement was taken in English language and read to him in English language before he signed. PW5 in his evidence before the Court stated that he charged and cautioned the appellant in English language and the appellant volunteered his statement which he
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(PW5) recorded in English language and read over to the appellant before he signed. He too was not asked any question about the statement under cross examination. The appellant in his evidence during trial within trial and in the main trial never said that he did not volunteer his statement in English language. His case was that he was tortured to sign the statement. From the entire evidence on record and on the face of exhibits D and H, it is clear that the appellant volunteered his statement in English language. The unchallenged evidence of PW4 that the appellant volunteered his evidence in English Language confirms that the argument that the appellant does not understand English language as an afterthought.
Contrary to the argument of the appellant’s counsel that the appellant is presumed to be an illiterate because of the level of his education, the issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the Court. Illiteracy cannot be proved by the speculation, conjecture and presumption of counsel in a brief of argument. See ANAEZE V. ANYASO (1993) LPELR- 480(SC) AT 19-20 (G-A). JEJE V ENTERPRISE BANK LTD. & ORS.
14
(2015) LPELR-24829 (CA) AT 28-33(C-A). In the instant case, the appellant neither raised the issue of being an illiterate throughout his trial at the Court below nor led any scintilla of evidence to establish the fact that he is an illiterate or that he does not speak or understand English language. The argument of the appellant’s counsel that the appellant may not be proficient in English language because he read up to first school leaving certificate only is pure speculation and conjecture. It is settled that a Court should not decide a case on mere assumption, conjecture or speculation. The Courts decide issues on facts established by legally admissible evidence properly placed before them and the applicable law, never on speculation and conjecture. See ADEGBITE V. STATE (2017) LPELR-42585 (SC) AT 13-14 (C-B). CHUKWU & ANOR. V.CHUKWU & ORS. (2018) LPELR-45482 (CA) AT 47-48 (F-B). Issues 1 and 4 are resolved against the appellant.
On issues 2 and 3, the appellant’s counsel contended that the Court below erroneously believed exhibits D and H to be true and relied on them to convict the appellant
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for murder without subjecting the statements to the tests of veracity and truthfulness as required by the law and without any evidence outside those statements corroborating same. He further contended that the application of the doctrine of “last seen” in this case is misconceived because the evidence and circumstances in a case must point conclusively to the fact that as the time the deceased died, he was in the company of the accused before the doctrine can be applied. He referred to ONITILO V. STATE (2017) 4 WRN 30 AT 35. EMEKA V. STATE (2001) 32 WRN 37, (2001) 14 NWLR (PT.734)666. OMOREGIE V. STATE (2017) 35 WRN 40 AT 43. STEPHEN HARUNA V.ATT.GEN. OF THE FEDERATION (2012) LPELR-7821(SC).
Counsel argued that the deceased’s wife who said that the appellant called the deceased on phone to come to his house failed to state how she got to know that it was the appellant that called the deceased and the police investigation did not link or establish any communication between the appellant and the deceased. He submitted that in the absence of overwhelming evidence pointing conclusively that the deceased was last seen in the company of the
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appellant, the application of the doctrine of the “last seen” to convict the appellant was misconceived and has occasioned a miscarriage of justice.
The appellant’s counsel also contended that failure to call the person who identified the corpse of the deceased to the doctor that performed the autopsy is fatal to the prosecution’s case. He referred to MSUGHANDO V. THE STATE (FCA/K/61.79 of 31/7/80) cited in the book: DIGEST OF APPEAL CASES by OLAKUNLE OROJO. He submitted that while the doctor that performed the autopsy testified that the corpse was identified by one MR. SUNDAY OGBOLOKO who testified as PW2, SUNDAY OGBOLOKO never testified that he identified the corpse to the doctor. Counsel argued that the prosecution has failed to prove that the deceased died since they failed to prove the identity of the deceased in respect of which the doctor (PW3) testified that he carried out an autopsy.
In response to the above submissions, the respondent’s counsel submitted that the evidence of PW1, PW2 and PW4 that the appellant confessed to the killing of the deceased and he took the villagers and the police to the bush near the
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river bank where he killed the deceased and dumped his body which evidence was not challenged or impeached under cross examination without more are enough to resolve the issues in favour of the respondent. He referred to OFORLETE V. THE STATE (2000) 12 NWLR (PT.681) 415. IGHALO V. THE STATE (2013) LPELR-20762 (CA) 48. BABALOLA V. THE STATE (1989) NWLR (PT.115) 264 AT 281. (D-E). He further submitted that there was ample evidence outside exhibits D and H which confirmed the complicity of the appellant in the murder of the deceased.
On the identification of the corpse of the deceased, counsel submitted that where the totality of the evidence adduced is in tandem with the autopsy report on the deceased, a separate witness is not a necessity. He referred to EGHAREVBA V. STATE (2016) 8 NWLR (PT.1515) 433 AT 438. He further submitted that identification of the corpse to the doctor who performed the post mortem examination is not a sine qua non in all cases and in any case, the body of the deceased was identified by PW2 who was a relation of the deceased and the body was later handed over to PW2 for burial. He urged the Court to dismiss the appeal.
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RESOLUTION
The law is settled that the burden to prove the guilt of an accused beyond reasonable doubt is on the prosecution and the burden can be discharged by any one or a combination of the following methods: 1) Evidence of an eyewitness who saw the commission of the crime. 2) Confession of the accused that he committed the crime. 3) Circumstantial evidence. In the instant case, the prosecution relied on the confessional statements of the appellant.
It is settled that the Court can convict on the retracted confessional statement of the accused person. However, the Court is enjoined to satisfy itself that the confession was free, voluntary and properly taken and that it passed the six tests laid down in a plethora of cases starting from Ridley. J. in R v. Sykes (1913) 18 CR App R. B233. The tests are: (i) Anything outside the confession to show that it is true. (ii) Is it corroborated in any way (iii) Are the relevant statements of fact made in it (most likely to be) true as far as they can be tested (iv) Did he have the opportunity of committing the offence (v) Is the confession possible (vi) Is the alleged confession consistent with other facts, which have been
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ascertained. See AFOLABI V. STATE (2016) LPELR-40300(SC) AT 33 (A-D). EDUN & ANOR. V.FRN (2019) LPELR-46947 (SC) AT 39-40 (E). UZIM V. STATE (2019) LPELR-48983 (SC) AT 24-25(A-B). The Court in compliance with the law considered the contents of exhibits D and H along with other pieces of evidence on record. At pages 200-202 of the record of appeal, the Court held as follows:
“In this case, the confessional statements, exhibit “D” and “H” were made by the 1st accused person charged jointly with the 2nd accused person who made exhibits “C” and “G”. There is neither evidence nor allegation that the statement was made in the presence of the 2nd accused person or that he adopted same. Accordingly, under Section 29 (4) of the Evidence Act, 2011, the exhibits could not be taken into consideration against him and I so hold on the authorities of Anyanwu v. State (Supra), Ozaki v. State (1990) 1 NWLR (pt.124) 92; Ogugu v. State (1990) 1 NWLR (pt.134) 539; Kasa v. State (1994) 5 NWLR (pt.344) 269.
On the third element which is that the acts or omission of the accused persons which caused the death of the
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deceased must have been intentional. The reason for the acts or omission of the accused persons to be intentional is simply because under Section 316 (i) and (ii) of the Criminal Code Law, Cap 33, Laws of Ebonyi State, 2009, an accused person is said to have committed the offence of murder if he intends to cause the death of the person or to do some other person grievous harm, under paragraph (iii) of the same section, a person is said to have committed the offence of murder if death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life.
In law that an accused person is taken to intend the natural and probable consequences of his act. See Mohammed v. The State (1991) 5 NLWR (pt.192) 438 at 442.
It is my view that the natural and probable consequence of stabbing the deceased with a machete that gave the deceased a deep penetrating laceration injury to the abdomen affecting the large intestine as per the evidence of PW3 and the information in exhibit “A”, “D” and “H” is death. I will further hold that the intent to
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murder the deceased is an inference that can be drawn from the act of the 1st accused person. Therefore, the cumulative evidential effect of exhibit “D”, “H” and “H1” inclusive of the evidence of PW1, PW2, PW3, PW4 and PW5 is the infamy of killing the deceased on the 13th day of July, 2013 when the 1st accused person lured him into his house and requested the deceased to escort him to Oguzoronweya village and the deceased was murdered on their way near Ebonyi River.
Under our law, when apparent damning facts are established against an accused person and he fails into give explanation, an inference will be drawn against him. See Adepetu v. State (1998) 9 NLWR (Pt.565) 185.
In this case, the unanswered question by the defence is why it was only the 1st accused person while in their family meeting that was asked to take the deceased’s wife in search of the deceased. My view is that the answer was provided by the evidence of PW1, PW2 and the information in exhibits “D”, “H” and ”H1”.
DW1 in his evidence did not state before the Court who told the villagers and the
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police that the deceased was no longer missing but had been killed. An inference can therefore be drawn from the evidence of PW1, PW2, PW4 and the information in exhibit “D”, “H” and “H1”.
It is glaring from the excerpts from the judgment of the Court below that the argument that the Court below did not subject the appellant’s confessional statements to the laid down tests to ascertain its veracity is totally misconceived. The evidence of PW2 and PW4 that the appellant took the villagers and the police investigating team to the place where he killed and dumped the body of the deceased was not debunked or discredited in any way. PW2 was categorical that he accompanied the team to the scene of the crime. PW4 snapped the photographs of the body of the deceased and tendered same in evidence. The evidence of PW2 and PW4 was cogent and compelling and it confirmed the truthfulness of exhibits D and H. The appellant alleged that he was forced to sign exhibit D which was found to be false. There was no objection to the admissibility of exhibit H when it was tendered. Most importantly, the appellant never denied the fact
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that he was the one that led PW2, PW4 and others to the place where he dumped the deceased after killing him and the corpse of the deceased was found there. The search party organized by the villagers did not succeed in locating the deceased. The fact that the appellant took PW2, PW4 and others straight to where the body of the deceased was found is a circumstantial evidence which pointed irresistibly to the fact that the appellant knew what happened to the deceased.
The law is trite that a free, voluntary and unequivocal confessional statement of an accused that he committed the crime is sufficient to ground a conviction. A retraction of the confession at the trial would not affect its admissibility once the Court evaluate it along with other evidence before it and find that the statement is true. See JATO V. STATE (2019) LPELR-49310 (SC) AT 7-8 (A-B). IFEANYI V. FRN (2018) LPELR-43941(SC) AT 45-47 (B-D). In the instant case the Court below having found that exhibits D and H were voluntarily and freely made by the appellant and having examined the statements along with other pieces of evidence outside the statements which established beyond
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reasonable doubt that the deceased was killed by the appellant, the Court below was right to believe the contents of the statements and in relying on them.
The appellant’s counsel made a heavy weather about the identity of the person on whom PW3 did autopsy. The deceased was the appellant’s brother. He was the one that took PW2 and PW4 to the place where he dumped his brother’s body after killing him. PW2 stated that the body of the deceased was discovered with machete wounds. The body was taken to the police station from where it was taken to the mortuary at Federal Teaching Hospital. After the autopsy, the body was released to them for burial. The photograph of the body of the deceased taken by PW4 in the presence of the appellant was not challenged by the appellant. In EGHAREVBA V. STATE (SUPRA) AT 14-15 (E-A), the Supreme Court per Ngwuta J.S.C. held that:
“It has been held severally that where the totality of the evidence of the prosecution shows consistently that the body on which a doctor performed a post mortem examination was that of the deceased, a separate witness on the issue of the deceased’s identity, though
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desirable, is not a necessity, see Enewoh v. State (1990) 4 NWLR (Pt.145) 459; Princewill v. State (1994) 6 NLR (Pt.353) 703 at 713 G-H.”
The appellant never made the identity of the deceased or the person whose photograph was taken by PW4 at the spot where the appellant took PW2, PW4 and others to or the body on which autopsy was performed an issue at his trial. It is not his case that his brother Chukwuma Akputa is alive. On the entire evidence and circumstances of the instant case, it does not lie in the mouth of the appellant to say that he does not know the identity of the person on whose body PW3 did autopsy. See LANRE V. STATE (2018) LPELR-45156 (SC) AT 21-23(D-E).
I do not agree with the appellant’s counsel that the doctrine of “last seen” is inapplicable to the circumstance of the instant case. The doctrine simply means that the law presumes that the person last seen with the deceased bears full responsibility for his death, if it turns out that the person last seen with him is dead. See ANYASODOR V. STATE (2018) LPELR- 43720 (SC) AT 21-23 (F-B). PW1, the appellant’s wife said the
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appellant called the deceased on phone and asked him to come to his house. The deceased left immediately after receiving the appellant’s phone call. That was the last time he was seen alive. The next time he was seen he was dead and it was the appellant that took the police and the villagers to where the corpse of the deceased was found after confessing to the killing of the deceased. The search party including the appellant organized by the villagers could not find the corpse of the deceased until the appellant took the police to the place where he killed the deceased and dumped his body. There are also the confessional statements of the appellant wherein he confirmed that he killed the deceased. The circumstantial evidence irresistibly pointed to no one else but the appellant as the last person who was with the deceased before his death and as the killer. The Court below rightly applied the doctrine of “last seen” in the circumstances of this case. See KOLADE V. STATE (2017) LPELR-42362(SC) AT 49-50 (E-F). Even if the doctrine is inapplicable in this case, wrong application of the principle of “last seen” will not vitiate
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the correct finding of the Court that the prosecution proved their case against the appellant beyond reasonable doubt because there are other cogent, credible and compelling evidence which clearly established the guilt of the appellant beyond reasonable doubt.
The law is settled that an appellate Court will not reverse the decision of the Court below which is right and just merely because it was based on a wrong reason. See IBULUYA & ORS. V. DIKIBO & ORS. (2010) LPELR-1414(SC) AT 29-30(D-A). KWARA STATE JUDICIAL SERVICE COMMISSION V. TOLANI (2019) LPELR- 47539 (SC) AT 20(A-C). For the above reasons Issues 2 and 3 are resolved against the appellant.
In conclusion, this appeal fails. It is hereby dismissed. The judgment of the High Court of Ebonyi State delivered in charge no. HAB/13C/2014 on 19/9/2018 by Hon Justice A. N. Nwankwo is hereby affirmed. The conviction and the sentence passed on the appellant is affirmed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI- YUSUFF, JCA and I totally
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endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.
For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. The conviction and the sentence passed on the appellant by the trial court is hereby affirmed.
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Appearances:
No appearance For Appellant(s)
I. Alobu, D.P.P. Ebonyi State, with him R. O. O. Udeh, C. S.C., Ministry of Justice For Respondent(s)
