ASUQUO OKON ESSIEN v. THE STATE
(2018)LCN/12379(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of February, 2018
CA/C/415C/2014
RATIO
CRIMINAL LAW: CONSPIRACY TO COMMIT UNLAWFUL PURPOSE
“Fundamentally, the prosecution is under a duty to prove beyond reasonable doubt the following ingredients: (i) That there were two or more persons;
(ii) The two persons must form a common intention;
(iii) The common intention must be towards prosecuting an unlawful purpose.
(iv) An offence must be committed in the process; and
(v) The offence must be such a nature that its commission was a probable consequence.
See AKINKUNMI VS. STATE [1987] 1 NWLR [Pt. 52] 608.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CRIMINAL LAW: WHERE THERE IS COMMON INTENTION TO COMMIT AN UNLAWFUL ACT
“It is a trite principle, that the question of whether or not there is common intention to commit an unlawful act is not necessarily always probable by direct evidence of express agreement of the accused persons(s). Indeed, such a common intention may be inferred from the surrounding circumstances as disclosed in evidence. See OKOSI VS STATE [1998] ACLR 281 @ 309; OMOTOLA VS STATE [2009] 8 ACLR 29 @ 171.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
CRIMINAL LAW: INGREDIENTS FOR MURDER
“The law is trite, that the prosecution in a murder charge has a duty to establish beyond reasonable doubt:
(i) The death of the deceased person;
(ii) That death resulted from the act of the accused person;
(iii) That the act was intentional, with knowledge that death or grievous bodily harm was its probable consequence;
See OGEDENGBE VS STATE [2014] ALL FWLR [Pt. 752] 1724 @ 1750 F & G; JIMMY VS STATE [2013] 54. 2 NSCQR 1090 @ 1094.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
MEDICAL LAW: WHERE THE DECEASED BODY IS EXAMINED
“Indeed, it is trite, that where there are facts from which the Court can infer that the corpse examined by the Medical Doctor was actually that of the deceased, the evidence of the person said to have identified the corpse is not indispensable. It was aptly held in the case of ENEWOH VS STATE:
Indeed, a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. See [1990] 4 NWLR [Pt. 145] 469 @ 482. See also EDIM VS STATE [1972] 4 SC 160; IKUMONIHAN VS STATE [2014] 2 NWLR [Pt. 1392] 564 @ 604.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAHJustice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLEJustice of The Court of Appeal of Nigeria
Between
ASUQUO OKON ESSIENAppellant(s)
AND
THE STATERespondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment):
The present appeal is consequent upon the judgment of Akwa Ibom State High Court, holden at Uyo, delivered on July 23, 2012 in charge No. HU/16C/2006. By the judgment in question, the Court below convicted the Appellant for the offences of conspiracy to effect an unlawful purpose, defilement and murder punishable under Sections 556 (1)(f), 219 (1) and 326 (1) of the Criminal Code CAP. 38 Volume 2, Laws of Akwa Ibom State of Nigeria, 2000. Whereupon, was sentenced to two years imprisonment under counts 1 and 2. While under count 3 of the charge, the Appellant was sentenced to death by hanging.
BACKGROUND FACTS
The instant case has had an obvious chequered history. The offences for which the Appellant and other one person [ENEFIOK MICHAEL TOM] were charged in the Court below was alleged to have been committed on 18/8/2004. The 1st Accused person however gave up the ghost while in the prison during the course of the trial. Thus, his name had to be struck out of the proceedings at the instance of the prosecution. Consequently, the charge was amended on 23/02/2012:
Count 1: STATEMENT OF OFFENCE
CONSPIRACY TO EFFECT AN UNLAWFUL PURPOSE punishable under Section 556 (1)(f) of the Criminal Code, Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
ASUQUO OKON ESSIEN ‘M’ and ENEFIOK MICHAEL TOM now deceased on or about the 18th day of August 2004 at Ikot Ambon Village in Ibesikpo Asutan LGA in Uyo Judicial Division conspired amongst yourselves to effect an unlawful purpose, to wit, DEFILEMENT.
STATEMENT OF OFFENCE
DEFILEMENT punishable under Section 219(1) of the Criminal Code, Cap 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
PARTICULARS OF OFFENCE
ASUQUO OKON ESSIEN ‘M’, and ENEFIOK MICHAEL TOM (now deceased) on or about the 18th day of August 2004 at Ikot Ambon Village in Ibesikpo Asutan LGA, in Uyo Judicial Division had unlawful carnal knowledge of NAOMI EFFIONG SUNDAY aged 9yrs, (now deceased).
STATEMENT OF OFFENCE
MURDER punishable under Section 326(1) of the Criminal Code Cap 38 Vol. 2, Laws of Akwa Ibom State of Nigeria 2000.
PARTICULARS OF OFFENCE
ASUQUO OKON ESSIEN ‘M’, and ENEFIOK MICHAEL TOM (now deceased) on or about the 9th day of September, 2004 at Ikot Ambon Village in Ibesikpo Asutan LGA in Uyo Judicial Division MURDERED NAOMI EFFIONG SUNDAY.
Not unexpectedly, the Appellant pleaded not guilty to the three counts [Amended] charge.
The case proceeded to trial. In proof of the case thereof, the prosecution called three witnesses in the persons of Effiong Sunday Udo, CPL Owoidighe Nkanang and Dr. Ekong George Udoro, who testified as PW1, PW2 and PW3, respectively. A total of four exhibits were equally tendered and admitted as A, B, C and D, respectively.
The Appellant testified in his own defence but called no witness. At the conclusion of the trial, the Court below came to the conclusion in the vexed judgment:
“In the final result, I convict the accused in each of the offences in respect of which earlier found him guilty in three counts because I am satisfied that the prosecution proved the counts beyond reasonable doubt against the accused. In doing all what he did to the deceased as disclose in evidence before me, the accused is a very heartless man.
ALLOCUTOS:
The accused said he has nothing to say.
Udofia, Esq.,-
The accused is a young man who if given an opportunity may be reformed. He has been in detention for a long time. He has learned his lesson and if given an opportunity he will not do such a thing again. I urge the Court to exercise it is discretion in favour of the accused.
Thus, having convicted the Appellant under the three count charge in question, the Court proceeded to sentence him;
SENTENCE:
In each of counts 1 and 2, the accused [sic] is sentence [sic] to two years imprisonment. The sentence are to run concurrently. In respect of count 3, the sentence of the Court upon you, Asuquo Okon Essien is that you be hanged by the neck until you be dead and ma [sic] the Lord have mercy on your soul.
The clerk of Court shall keep in her custody all the exhibits pending appeal.
Sgd:
Justice Andrew E. Okon
Judge.
23/7/2012
On 17/10/2012, the Appellant filed in the Court below the notice of appeal thereof against the said judgment. The appeal was deemed properly entered on 09/01/18. The Appellant’s brief filed on 28/10/14, spans a total of 30 pages. At page 3 of the brief, a sole issue has so far been raised:
WHETHER FROM THE EVIDENCE ADDUCED AT THE TRIAL, THE PROSECUTION HAS DISCHARGED THE REQUISITE BURDEN OF PROOF IN REGARD TO THE OFFENCES WITH WHICH THE APPELLANT WAS CHARGED? [Proof beyond reasonable doubt issue].
It was submitted, in the main, that as a general principle the offence of conspiracy is proved by inference drawn from established facts. See ONYENYE VS THE STATE [2012] 15 [Pt. 1324] 586; BRIGHT VS. STATE [2012] 8 NWLR [Pt.1302] 297.
Further submitted, that the Court below, on the strength of Exhibit B, inferred the existence of an agreement between the Appellant and late Enefiok Michael Tom [deceased] to indecently assault the deceased. That, such an inference is not supported by Exhibit B, or indeed, any other evidence on record. Allegedly, because [a] there is no evidence that the Appellant knew, either directly or constructively, of the 1st accused’s intention to have sexual intercourse with the deceased prior to ‘ushering her into the 1st Accused’s room; [b] the mere fact that the Appellant invited the deceased into 1st Accused room is not evidence of an agreement to defile the deceased or assault her indecently; [c] that the Appellant only became aware that the 1st accused had sex with the deceased after the latter told me that he was [sic] sex with the girl for two times’ (page 9 of the Record); [d] that the Appellant’s sexual encounter with the deceased was done independently of the 1st accused and without the knowledge of the 1st accused.
That the Court below failed to consider the totality of the evidence. Thus, no conspiracy to effect an unlawful purpose was disclosed by the evidence. Accordingly, the Court is urged to discharge and acquit the Appellant on count 1 of the charge.
The argument on count 2 of the charge, is contained at pages 11 – 15 of the Appellant’s brief. It is submitted, that instead of convicting the Appellant for offence of defilement under Section 219 (1) of the Criminal Code the Court below convicted the Appellant of the offence of indecent treatment of girls under the age of 13 years, contrary to Section 223(1)(c) of the Criminal Code, on the ground that the deceased was only 12 years old at the time she was illegally assaulted. See pages 124 of the Record.
Further submitted, that the Court below was wrong, to have so held. That for a conviction to be sustained under Section 223(1) of the Criminal Code [supra], the victim must be under 13 years. It was contended, that there is no evidence on record showing the age of the deceased, Naomi, at the relevant time. See Exhibit D [page 13 of the record] vis-a-vis the finding of the Court below [at page 124, lines 8 – 11 of the Record].
Further contended, that in the absence of such vital evidence of identification of the corpse and in particular, the age of the deceased, it was wrong for the Court below to rely on Exhibit D to find that the deceased was under 13 years. See PRINCEWILL VS. STATE [1994] 6 NWLR [Pt. 353] 703; ENEWOH VS. STATE [1990] 4 NWLR [Pt.145] 469.
Allegedly, the conviction has caused substantial injustice to the Appellant, and it should be quashed by this Court.
The third count has been postulated upon at pages 15 – 30 of the brief, to the effect that the evidence of PW1 and PW2 has shown that Naomi Effiong Sunday had died, thus establishing the first ingredient of the offence of Murder.
The second ingredient of the charge is argued at pages 17 – 29 of the brief, to the effect that the Court below has completely erred in its findings [pages 128 – 129 of the record] that there is evidence linking between the death of the deceased and the acts of the accused.
It was submitted, that from the evidence, the prosecution did not establish a nexus between the death of the deceased and the alleged act of the Appellant, for a number of distinct reasons. First, the Court below allegedly misunderstood the slant of the Appellant’s confession in Exhibit B. That, in Exhibit B, the Appellant did not say he poured acid ‘into’ the mouth of the deceased, but that ‘It was acid that I poured on the girl Naomi on the mouth and neck’. Second, that the prosecution neither established the cause of death nor established that it was the act of the Appellant that caused the death of the deceased.
It was contended, that the oral evidence of PW3 is quite illuminating, in that apart from showing that the deceased died on September 9, 2004, the PW3[he] was not sure about what caused the death of the deceased. That the PW3 was unsure as to whether the deceased died from low blood sugar, dehydration, infection or even concoction that was administered on the deceased.
Thus, it was posited that where there exist alternative possibilities to the cause of death, it would not have been established sufficiently to sustain a conviction, and the appellant would be entitled to an acquittal. See BOSAH VS. STATE [1980] 1 NCR 204 @ 209, lines 5 – 30; 211 line 5.
Third even if it is accepted that the Appellant poured acid on the deceased, it must be proved beyond reasonable doubt that Naomi died as a result of the acid attack. See AKINFE VS. STATE [1988] 2 NSCC 313 @ 324 lines 35 ? 45.
It was contended, that there is no evidence that it was the acid poured on the deceased that caused her death; there is an irrefutable evidence from PW3 that the corpse was not dissected for forensic examination; that the acid was neither recovered nor tendered in evidence, and no scientific examination was carried out on the said acid.
Fourth, Exhibit B does not in any way assist the case of the prosecution. The Appellant had retracted Exhibit B in his evidence. The Court is enjoined to look for some independent evidence outside the confession, which makes it probable. See AKINFE VS. STATE [supra] @ 326 lines 5 – 15; REX VS. SKYES [1913] 8 CAR 233; KANU VS. THE KING [1952] 14 WACA 30; DAWA VS. STATE [1980] 8 – 11 SC 236; et al.
It is postulated, that the prosecution has failed miserably to show that the deceased died as a result of the act of the Appellant. The Court is urged upon to so find.
The third ingredient of the offence of murder is canvassed at pages 29 – 30 of the brief, to the effect that flowing from the foregoing argument, there is no evidence to show that in spite of the Appellant’s confession in Exhibit B, the Appellant in fact poured acid on the deceased. Accordingly, it is argued that by merely treating the deceased in an indecent manner, the Appellant cannot be said to have intended the death of the deceased would be the probable consequence of this action. The Court is urged to so find.
Conclusively, the Court is urged upon to reverse the decision of the Court below because the prosecution has woefully failed to prove its case beyond reasonable doubt.
Contrariwise, the Respondent’s brief deemed properly filed on 13/4/2016, equally spans a total of 30 pages. At page 4 of the said brief, the sole issue raised by the Appellant has been adopted by the Respondent.
Count 1, is canvassed at pages 5 – 11 of the brief, to the effect that the Court below was right in convicting the Appellant in consideration of the totality of the evidence. That the inference of agreement between the Appellant and the deceased 1st accused [Enefiok Michael Tom] is rightly supported by Exhibit B, and the evidence of PW1 and PW2.
Further submitted, that the Appellant in the instant case assented to and encouraged the common design of the deceased 1st accused, when he ushered in the deceased into the room of the latter. See ERIM VS. STATE [2012] 9 ACLR 344 @ 367; AKINKUNMI VS. STATE [1987] 1 NWLR [Pt. 52] 608.
The Court is urged to resolve that the Court below was right in convicting and sentencing the Appellant to two years imprisonment for the offence of conspiracy to commit an unlawful purpose.
The second count of the charge has been argued at pages 11 – 15 of the Respondent’s brief. It is submitted that Exhibit D is a document that speaks for itself. It is a sufficient evidence and the Court below was right to have relied on it to reach the conclusion that the deceased was 12 years old at the material time.
Further submitted, that there is an ample evidence showing that the PW3, the medical Doctor, could identify the corpse of the deceased having treated the deceased from 28/8/04 till her death on 09/9/04. Thus, the failure of the prosecution to name the person who identified the corpse of the deceased is immaterial.
It was contended that the strong evidence of the prosecution proved beyond reasonable doubt that the death of the deceased was due to Septieramia [Septicemia] following burns and injury following suspected rape. That this conforms with the Appellant’s confession [Exhibit B] that he poured acid on the mouth and neck of the girl- Naomi and that he sexed the deceased two times after the deceased 1st accused already had sexed her twice. See Exhibit B, [pages 9 – 10 of the Record]: UKWA EGBE ENEWOH VS THE STATE [1990] 4 NWLR [Pt. 145] 469 @ 482; EDIM VS THE STATE [1972] 4 SC 160; IKUMONIHAN VS STATE [2014] 2 NWLR [Pt. 1392] 564 @ 604 C – D.
Further contended, that the issue of identification of the corpse of the deceased should be discountenanced, on the ground that it was raised for the first time on appeal. The said issue is allegedly incompetent, as no leave was sought and obtained. See CHIEF SUNDAY ORIORIO VS. CHIEF JOSEPH OSAIN [2012] MRSCJ VOL. 8, 109 @ 129 E – G.
The Court is urged to resolve that the Court below was right in convicting and sentencing the Appellant to two years imprisonment for the said offence.
The submission on count 3 is contained at pages 15 – 28 of the Respondent’s brief. It was submitted, that there is an undisputed evidence of PW1, PW2, PW3 and Exhibit D, that the said Naomi [deceased] is dead.
Further submitted, that the Appellant in Exhibit B confessed to the role he played which resulted in the death of the deceased, that he poured acid on her mouth and neck and had two rounds of sex with her all night which is corroborated by the evidence of PW3 and Exhibit D.
It was contended that the Court below was right to have inferred the cause of death. See ADEKUNLE VS. THE STATE [1989] 5 NWLR [Pt. 123] 505.
Further submitted, that the evidence of the prosecution witnesses was not challenged or contradicted. [Therefore] the Appellant’s conviction based on his admission was proper. See SHANDE VS STATE [2005] 6 KLR [Pt. 198] 593.
It was argued that the prosecution need not tender the weapon of murder once there is sufficient evidence disclosing the type of weapon used in the commission of the crime, the part of the deceased body attacked, and the nature of the injuries inflicted on the deceased. See AYO VS THE STATE [2008] 6 ACLR 220 @ 254; KABAKA VS THE STATE [2011] 2020 LRCN 171 @ 173.
Again it is posited that since the point that the acid was neither recovered nor tendered in evidence, was never raised at the trial, the Court is urged upon to discountenance same. See ORIORIO VS OSAIN [supra].
On the whole, the Court is urged to so find, that upon the totality of the evidence in the record of appeal coupled with Exhibit B, the prosecution has sufficiently established that it was as a result of the act of the Appellant that the deceased died.
The third ingredient of the offence of murder is canvassed at pages 27 – 28 of the Respondents’ brief, to the effect that from the act of the Appellant, it is obvious that he intended to kill the deceased. See NWOKEARU VS STATE [2013] 54 NSC QR 398 @ 407.
Further submitted, that in the words of the Appellant in Exhibit B, he stated that ‘it was acid that I used on the girl Naomi [deceased] on the mouth and neck’. See page 10 of the record. It was contended that from the above, it is conclusive that the act of the Appellant that caused the death of the deceased was intentional, that death or grievous bodily harm was a probable consequence. The Court is urged to so hold.
Conclusively, the Court is urged upon to uphold the decision of the Court below and dismiss the appeal.
Instructively in the instant case, the Appellant’s notice of appeal [pages 135 – 136 of the Record] is predicated upon a sole ground of appeal:
That the judgment of the honourable Court was unreasonable, unwarranted and cannot be supported by the weight of evidence.
The Appellant accordingly urged upon the Court:
To allow the appeal, overrule the judgment of the Court below.
Not unexpectedly, the Appellant distilled a single issue from the said sole ground of appeal for the ultimate determination of the appeal. Thus, having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the records of appeal, as a whole, I have deemed it most appropriate to adopt the Appellant’s sole issue for the determination of the appeal, anon.
As copiously alluded to above, the sole issue raises the very vexed crucial question of: WHETHER FROM THE EVIDENCE ADDUCED AT THE TRIAL, THE PROSECUTION HAS DISCHARGED THE REQUISITE BURDEN OF PROOF IN CRIMINAL CASES, THAT IS, PROOF BEYOND REASONABLE DOUBT IN REGARD TO THE OFFENCES WITH WHICH THE APPELLANT WAS CHARGED [PROOF BEYOND REASONABLE DOUBT ISSUE].
Firstly, the 1st count of the charge relates to conspiracy to commit an unlawful purpose. Fundamentally, the prosecution is under a duty to prove beyond reasonable doubt the following ingredients: (i) That there were two or more persons;
(ii) The two persons must form a common intention;
(iii) The common intention must be towards prosecuting an unlawful purpose.
(iv) An offence must be committed in the process; and
(v) The offence must be such a nature that its commission was a probable consequence.
See AKINKUNMI VS. STATE [1987] 1 NWLR [Pt. 52] 608.
In the instant case, the testimony of the PW1, Effiong Sunday Udo, is to the effect:
On 19/8/2004 while I was preparing to go to work, I saw that accused and Enefiok riding on motorcycle with the deceased and dropped her on the road to my compound. At that time Naomi did not yet die. I was inside and observed that she could not walk well. She walked as someone having injury. I went outside and asked her what happened to her. She said she was not well. I left for work and on my return I asked her again and she said she was still sick.
In Exhibit B, the Appellant confirmed the fact himself and the late 1st Accused person had a carnal knowledge of the deceased prior to her death.
In his defence, the Appellant though admitted that he had a carnal knowledge of the deceased, he however insisted that it was rather a consentual sex. According to the Appellant:
I had sexual intercourse with Naomi on the day she stayed the night with me. In our compound, there are other people who live there. On the night Naomi stayed in my house there was no struggle between us and there was no trouble. See pages 107 – 108 of the Record.
It is a trite principle, that the question of whether or not there is common intention to commit an unlawful act is not necessarily always probable by direct evidence of express agreement of the accused persons(s). Indeed, such a common intention may be inferred from the surrounding circumstances as disclosed in evidence. See OKOSI VS STATE [1998] ACLR 281 @ 309; OMOTOLA VS STATE [2009] 8 ACLR 29 @ 171.
What’s more, the PW3, Dr. Ekong George Udoro, testified to the effect the deceased was taken to the hospital on 28/8/2004 unconscious with a history that she was raped three days earlier:
‘She had evidence of burns on her neck, mouth and face’ She had low blood sugar and dehydrated. I noted that she had abrasion in her vagina and there was posterior tear in the vagina. There was no hymen present. That gave us the impression that the area of vagina was tempered with. We brought her out of the unconsciousness. She was conscious for about 4 days and evidently died on 09/9/2004. After her death, we carried out post mortem examination on the body. After the post mortem examination, I wrote a report.
Exhibit D turned out to be the post mortem examination report the PW3 talked about. Exhibit D attests to the fact:
I noted that she had abrasion in her vagina. And there was posterior tear in the vagina.
See page 104 of the Record.
From the circumstances surrounding the case as depicted by the pieces of evidence on record, it is rather inconceivable, as the Appellant would want the Court to believe, that the deceased person would consent to be subjected to four rounds of sexual intercourse by the Appellant and the late 1st Accused person. Thus, the defence of consensual sex put forth by the Appellant is rather an after-thought and utterly preposterous, to say the least. And I so hold.
Secondly, the count relates to the alleged defilement [indecent] treatment of the deceased person allegedly under the age of 13 years. Instructively, it is the argument of the Appellant that there is no evidence on record showing the actual age of the deceased person [page 13 of the Appellant’s brief]. However, as aptly argued by the Respondent, Exhibit D is the evidence which the Court is bound to consider. Exhibit D is the Medical Report which summarises the history of the deceased person, its examination and diagnosis. The PW3, in addition to the examination in chief thereof, has this to say under cross examination by the Appellant’s defence counsel Udofia, Esq.:
The body [of the deceased] was not dissected during post mortem but if it was dissected it could have confirmed the conclusion we had but could not have changed our conclusion. Her vagina was torn. There was abrasion and tear which could not have been to herself by the girl. It could have been done by anyone else.
See page 103 of the Record.
Regarding the question of identification, I think there is some justification in the postulation by the Respondent, that the PW3 having treated the deceased person from 28/8/2004 till the death thereof on 09/9/2004, was in the proper position to identify the deceased. Thus, the failure of the prosecution to mention the name of the actual person that identified the corpse of the deceased is rather immaterial. And I so hold.
The findings of the Court below in the vexed judgment at page 127 of the Record are that:
In Exhibit B, the accused said it was acid he poured into the deceased’s mouth and on her neck. He did not say why he did that. However, in his defence in Court, he denied that he did not say in Exhibit B that he gave poison to the deceased. In his written address his counsel urged the Court to reject that evidence in Exhibit B which is obviously a confessional statement. The statement was tendered and admitted in evidence as Exhibit without any objection by the accused or his counsel. It is too late to raise an objection after the said statement has been admitted in evidence and may keep as an Exhibit. See the case of MBANG VS STATE.
Indeed, it is trite, that where there are facts from which the Court can infer that the corpse examined by the Medical Doctor was actually that of the deceased, the evidence of the person said to have identified the corpse is not indispensable. It was aptly held in the case of ENEWOH VS STATE:
Indeed, a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. See [1990] 4 NWLR [Pt. 145] 469 @ 482. See also EDIM VS STATE [1972] 4 SC 160; IKUMONIHAN VS STATE [2014] 2 NWLR [Pt. 1392] 564 @ 604.
In the circumstance, I would want to hold that there is a sufficient evidence before the Court below regarding the identity of the deceased person prior to the post mortem examination conducted by PW3.
In the circumstance, there is every cogent reason for me to hold that the evidence adduced by the Respondent at the trial clearly shows the ingredients of the offence of indecent treatment of girls under 13years contrary to Section 223(1) of the Criminal Code [supra], has been sufficiently proved. And I so hold.
Now, regarding the charge for murder under the third count, the ultimate finding of the Court below is to the conclusive effect:
There is evidence that the accused poured acid on the deceased and also caused her injury when he had sexual intercourse with her. There is link between the death of the deceased and the cause of death and the acts of the accused which caused same has been established ? SUNDAY UDOR VS STATE HELD 6; ABOKOKUYANRO VS STATE SUPRA HELD 10.
The law is trite, that the prosecution in a murder charge has a duty to establish beyond reasonable doubt:
(i) The death of the deceased person;
(ii) That death resulted from the act of the accused person;
(iii) That the act was intentional, with knowledge that death or grievous bodily harm was its probable consequence;
See OGEDENGBE VS STATE [2014] ALL FWLR [Pt. 752] 1724 @ 1750 F ? G; JIMMY VS STATE [2013] 54. 2 NSCQR 1090 @ 1094.
Afortiori, the rule is equally trite, that proof beyond reasonable doubt does not necessarily mean absolute certainty but rather a high degree of probability which does altogether eliminate the possibility of any doubt whatsoever. See OMOTOLA VS STATE [supra].
“In the instant case, as copiously alluded to above, the findings of the Court below is to the conclusive effect that-
The cause of death has been proved and the nexus between the cause of death and acts of the accused which caused same has been established.”
I hold that the offence in count 3 has been proved beyond reasonable doubt and I find the accused guilty of it.
See page 129 of the Record.
Undoubtedly, the above finding of the Court below is cogently unassailable and duly supported by the evidence on record.
The fact that the deceased, Naomi Effiong Sunday died is no longer contestable from the evidence adduced at the trial. The totality of the evidence adduced at the trial vide the PW1, PW2, PW3 and Exhibit D [the post mortem examination report] have attested to the fact that the said Naomi [deceased] actually died.
Secondly, by virtue of Exhibit B, the Court has had the privilege of first-hand knowledge of how the offence was committed by the Appellant and the accomplice thereof, the late 1st Accused person. As aptly postulated by the Respondent, there can certainly be no account of the commission of the offence more accurate than the account given personally by the Appellant who narrated how the offence was actually committed. Indeed, the law is trite, that retracting a confessional statement does not automatically vitiate its admissibility as a voluntary statement. The basic and fundamental requirement is that once a statement is proved to have been voluntarily made, it is direct, unequivocal and clear admission by the accused that he has committed the offence, its sufficient to sustain a conviction. Afortiori, the fact that such a confessional statement is subsequently retracted by the Court in the course of the trial, notwithstanding. See OGEDENGBE VS STATE [supra] @ 1726; ADEBAYO ADEYOMI VS STATE [2012] 9 ACLR 203 @ 219 – 220.
It ought to be reiterated at this point in time, that a confessional statement is admissible as the basis for conviction if it is direct, positive and properly made in law. Thus, for a confession, such as Exhibit B, to form the very basis for conviction of an accused person, it must be positive, direct and consistent with some other facts which have been duly ascertained and proved [beyond reasonable doubt] before the trial Court. See YESUFU VS STATE [1976] 6 SC 167; AGBOR VS STATE [2006] LPELR 11649 [CA].
By Exhibit B, the Appellant has confessed to have poured acid on the mouth and neck of the deceased. And that he had had two rounds of sex with the deceased all night. This stunning evidence has no doubt been corroborated by the evidence of PW3 vis-a-vis Exhibit D, the Post Mortem Examination Report in question.
Contrary to the insinuation of the Appellant, the evidence of the PW3 was not contradictory, but rather positively links the Appellant to the offences allegedly committed by him and the accomplice thereof, the late 1st Accused person. As copiously alluded to above, the PW3 reiterated under cross-examination by the Appellant?s learned counsel, Udofia, Esq.:
The body [of the deceased] was not dissected during post mortem but if it was dissected it could have confirmed the conclusion we had but could not have changed our conclusion. Her vagina was burn. There was abrasion and tear which could not have been done to herself by the girl. It could have been done by anyone else.
In my considered opinion, against the backdrop of the circumstances surrounding the case and the obvious evidence on record, the findings and conclusion reached in the vexed judgment by the Court below are most undoubtedly cogent and unassailable.
The findings of the Court below at pages 128 – 129 of the record are to the effect:
I have already shown that the Accused poured acid in the mouth of the deceased and on her neck. PW3 testified on Oath and Exhibit D has shown that the deceased suffered from burns on her hips, oral cavity, neck and anterior chest wall in addition to abrasions around her cabiamagora [i.e.vagina]. Acid is a dangerous liquid why would accused use acid with its dangerous nature on the deceased a young girl of twelve years of age. In Exhibit D, PW3 certified the cause of death to be:
Due to Septieramia [sic] following chemical burns/injury following suspected.
There is evidence that the accused poured acid on the deceased and also caused her injury when he had sexual intercourse with her. There is a link between the death of the deceased and the acts of the accused. Cause of death has been proved and the nexus between the cause of death and the acts of the accused which caused same has been established.
The Court below was right in inferring from the circumstances surrounding the case to come to the apt conclusion, as it did, that there is a nexus between the ’cause of death of the deceased person and the acts of the Appellant which caused same has been established beyond reasonable doubt’. And I so hold. See ADEKUNLE VS STATE [1989] 5 NWLR [Pt. 123] 505; YARO VS STATE [2000] 2 WRN 131; et al.
In the circumstance, the sole issue ought to be, and it is hereby answered in the positive and accordingly resolved against the Appellant.
In the instant appeal, we have been urged upon by the Appellant?s learned counsel to reverse the decision of the Court below and by implication, discharge and acquit the Appellant. However, as far-reachingly highlighted herein above, the totality of the evidence duly evaluated by the Court below is most undoubtedly consistent with a verdict of guilty [conviction] than with a verdict of acquittal.
In the notorious case of NAFIU RABIU VS KANO STATE the Apex Court had had a course to aptly hold:
The need for moral rectitude and discipline has not been lost sight of by the makers of our Constitution, and they have taken no step to encourage perverse acquittal in Courts of our land, but, on the contrary, have enlarged the ambit of appealable decisions and accorded access to all and even the Highest Court in our country, Nigeria for aggrieved parties to have their wrongs righted all in keeping with the high ethical standard set for the Nigerian Society under our Constitution.
The law Courts of this land, have a duty in keeping with the Rule of Law, which this country loudly proclaims as its guiding principle and light, to convict when the justice of the case demands and to acquit also when that is also demanded by the justice of the case. The evidence accepted by the learned trial Judge [Jones, CJ] in this case is more consistent with a verdict of guilty and conviction than with a verdict of acquittal. Indeed, it is inconsistent with a verdict of acquittal.
The Federal Court of Appeal [Nasir, P. Kazeem and Nnaemeka- Agu, JJCA], was justified in allowing the appeal against acquittal and entering a conviction for culpable homicide.
See [1980] LPELR 2936 [SC] per Obaseki, JSC @ 117 – 118 paragraphs G & E.
Hence, having effectively resolved the sole issue against the Appellant, the appeal resultantly fails, and it is hereby dismissed. The judgment of the Akwa Ibom State High Court holden at Uyo, delivered by Justice Andrew E. Okon, J; on July 23, 2012, in Charge No. HU/16C/2006, is hereby affirmed. Consequently, the convictions and sentences passed upon the Appellant are equally hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, I.M.M Saulawa, JCA. His Lordship in an elaborate manner has resolved the sole issue generated in this appeal. I concur entirely with the reasoning and the conclusion that this appeal lacks merit and I dismiss the appeal.
The duty of the prosecution in our criminal justice system is to prove the charge against the accused person beyond reasonable doubt. All that the prosecution is required to do in that regard is to put forward to the Court evidence which is so strong, compelling and convincing against the accused person such that it leaves no reasonable man in doubt as to the guilt of the accused. The moment that duty is discharged, the Court can convict the accused person. SeeTHE STATE VS OLATUNJI (2003) LPELR-3227 (SC); LADO VS. THE STATE (1999) LPELR-1737(SC); CHUKWUMA VS THE FEDERAL REPUBLIC OF NIGERIA (2011) LPELR-863(SC).
The prosecutor in this instant case was found by the Lower Court to have effectively discharged this burden. I therefore agree with my learned brother and hold that this appeal fails and it is hereby dismissed. I abide by the consequential orders as made therein.
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 I.M.M SAULAWA, JCA.
The evidence adduced at trial in proof of the alleged offences was abundantly corroborated by the extra judicial confession of the Appellant thereby justifying the findings and conclusion of the learned trial Judge.
I accordingly concur with the reasoning and conclusion of my learned brother dismissing this appeal and affirming the judgment of the trial Court.
Appearances:
GODWIN OMOAKA, ESQ.
[TEMPLARS CHAMBERS, VICTORIA ISLAND, LAGOS]For Appellant(s)
ANIETIE INYANG, ESQ.,
WITH HIM, AKANINYENE AKPAN (MRS.)
[MINISTRY OF JUSTICE, UYO,
AKWA IBOM STATE]
For Respondent(s)
