BASSEY DAN UDO EYOP V. THE STATE (2012)

BASSEY DAN UDO EYOP V. THE STATE

(2012)LCN/5714(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/C/39/2009

RATIO

APPEAL: WHETHER FAILURE OF RESPONDENT TO FILE A BRIEF IN AN APPEAL AUTOMATICALLY TRANSLATE INTO THE SUCCESS OF THE APPEAL

However, even in situations like the one in the appeal, failure by a Respondent to file a brief in an appeal does not automatically translate into the success of the appeal because the law requires that the court should consider the grounds of the appeal, the issues raised from them and the submissions by the Appellant and make findings on whether, the appeal is sustainable in law. See Akpan v. State (1992) 6 NWLR (248) 439; Onyejekwe v. Nigeria Police Council (1996) 7 NWLR (463) 704; John Holt Ventures v Oputa (1996) 9 NWLR (470) 101. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS

As a foundation, the law (Section 138 of the Evidence Act, 2004 now Section 135 of the 2011 Act) requires that the allegation of the commission of a crime against any person, shall or must be proved beyond reasonable doubt by the person making the allegation, in all judicial proceedings, civil and criminal before courts of law in the country. In all proceedings in which the state alleges or accuses a person or persons of committing some criminal offence/s, it owes the legal burden of proving the allegation or accusation beyond reasonable doubt because it is not the duty of such accused persons/s to prove his innocence which is presumed in his favour by Section 36 (5) of the 1999 Constitution, as amended. This means that it is not enough for the state or prosecution to suspect or make allegation that a person has committed a criminal offence but it must produce evidence which identifies the person accused and which shows that it was his act and no other person’s, caused the offence. As a general principle the legal burden on the prosecution never shift throughout the trial until it was discharged as required by law. See generally, Abadom v State (1997) 1 NWLR (479) 1; Akinyemi v. State (1999) 6 NWLR (607) 449; Aigbadion v. State (2000) 4 SC (1) at 15; Chiamugo v. State (2002) 2 NWLR (750) 225; Ochie v State (2007) 5 NWLR (1027) 214; Ifejirika v. State (2009) 3 NWLR (Pt.593) 59. PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

The law is also settled that the guilt of an accused person or the commission of a criminal offence can be proved by one of the following:-

(a) the confessional statement of the accused person/s

b) evidence of eye-witness/s or direct evidence, or
c) circumstantial evidence. See Lori v State (1980) 1 – 11 SC, 81, (80) 12 NSCC, 269; Emeka v. State (2001) 32 WRN, 37 (01) 6 SCNJ, 259; Ugabele v State (2006) 28 WRN 1, (06) 6 NWLR (1975) 100; Igri v. State (2010) 7 WRN, 31 at 47; Joshua v. State (10) 1 WRN, 41 at 64. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: MEANING AND NATURE OF A CONFESSION

By the provisions of Section 27(1) (now Section 28) of the Evidence Act, a confession is an admission made at any time by a person charged with a crime, stating the inference that he committed that crime.

There is no other evidence which can be stronger than a person’s own free and voluntary, direct and positive, admission of the commission of the offence with which he was accused and charged before a court of law. There are two categories of confession:

a) confession made by an accused person in extra judicial statements to police officers in the course of investigating the offence with which he was accused. Exhibit ‘1’ in the Appellant’s case belongs to this category.
b) Confession made by on accused person during his trial before the court by either pleading guilty to the charge against him at the time of his arraignment or by admitting the commission of the offence in his oral testimony before the court. Once the court is satisfied that the plea of guilt or direct admission of the commission of the offence was freely and voluntarily made by an accused person before it, it is safe to accept same and the court may rely on it to convict him of the charge under the provisions of Section 218, Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria, 2000. See Kanu v R. (1952) 14 WACA, 30 at 32; Osuji v Inspector General of Police (1965) LLR, 143; Omoju v. FRN (2008) ALL FWLR 1656.

Because as I stated earlier, Exh. ‘1’ is an extra judicial confession, where such admission or confession is proved to be true to the satisfaction of the court and as required by judicial practice, it is also sufficient without more; that is alone, to ground the conviction of the maker for the offence he was charged with Nwaeze v State (1996) 2 NWLR (Pt.425) 1; Akinmoju v. State (2000) 4 SC (1) 64; Nwosu v State (2004) 15 NWLR (Pt.897) 466; Mohammed v State (2007) ALL FWLR (383) 46 at 60; Idowu v. State (supra); Uzoka v. FRN (2010) 2 NWLR (1177) 118 at 147. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: TESTS FOR ASCERTAINING THE TRUTH OF A CONFESSIONAL STATEMENT

a) is there anything outside the confession to show that it was true
b) is the confession corroborated?
c) are the statements made in the confession in fact true as far as they can be tested?
d) did the accused person have the opportunity of committing the offence he was charged with?
e) is the confession possible?
f) is the confession consistent with other facts which have been ascertained and proved? See Daura v. State (1980) 8-11 SC, 236; Udofia v. State (1984) 12 SC, 139; Ojegele v. State (1988) 1 NWLR (71) 414; Nwaebonyi v. State (1994) 5 NWLR (343) 130; Ubierho v. State (2005) 1 NCC, 146 at 161; Akpa v. State (2007) ALL FWLR (351) 1560 at 1582 (07) 2 NWLR (1019) 500.

In the case of Oseni v State (2012) 2 MJSC (Pt.11), 123 at 150 – 153, it was held that:

“Whether a conviction based on a confessional statement will be upheld or not will depend on whether or not the confessional statement passed satisfactorily, the six tests listed above.”

The Supreme Court had earlier in the above judgment listed the six tests which I have set out above. Thus, if after the application of these tests, the trial court is satisfied with the truth of the confession, it can convict the accused person on the confession alone. But where after testing the confession, there is nothing outside it showing that it was true, it should not rely solely on it to convict the accused person. It should be noted however that the aforementioned tests are applicable only to extra judicial statements made by accused persons, normally to police officers in the course of their investigation of the offence and before the formal charge against them was made before the court. When such statements were tendered and admitted in evidence at the trial of the accused person, then the trial court in its assessment or evaluation of the evidence adduced by the prosecution in the discharge of the burden of proving the charge against the accused person beyond reasonable doubt, has a duty to apply the tests in respect of the confession before relying on it to convict him. Where at the trial, the accused person gives oral evidence before the trial court on both, directly and positively and on his own freewill, admits the commission of the offence with which he was being tried in that court, then the necessity or even the desirability of testing the truth of such an admission or confession would not arise. In such a situation, the trial court would be entitled to rely on such confession made before it believing it to be true prima facie and convict him as charged because after all, as stated eloquently by Tobi, JSC, in the case of Mohammed v. State (supra) at page 60.

“the accused person is the best person and in the best position to say whether or not he committed the offence.”

See Nwosu v. State (supra); Oche v State (2007) 5 NWLR (1027) 214. PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE OF MURDER

In order to secure conviction for the charge of murder under the provisions of Section 319 of the Criminal Code, the prosecution was required by law to prove the following elements, beyond reasonable doubt:

a) that the death of a human being has occurred or that the deceased had died
b) that the death of the deceased was caused by the acts of the accused person, and that
c) the acts of the accused person were intended or with the knowledge that death or grievous bodily harm was their probable consequence.

All these elements must be proved together or must co-exist before a conviction for the offence can be entered and failure to prove any one of them would leave doubt in the prosecution case which the accused person is entitled to have resolved in his favour. See Kada v. State (1991) 22 NSCC (Pt. II) 592 at 598; State v. Danjuma (1996) 8 NWLR (469) 660 at 668; Ubani v. State (2003) 18 NWLR (851) 224; Igabele v. State (supra); Uguru v. State (2002) 9 NWLR (771) 90; Bright v. State (12) 1-2 MJSC, 34 at 61. PER MOHAMMED LAWAL GARBA, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

BASSEY DAN UDO EYOPAppellant(s)

AND

THE STATERespondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was charged for the offence of murder contrary to Section 319 of the Criminal Code Cap 31, Vol. II, Laws of Cross River State of Nigeria, before the High Court of Cross River State sitting at Akamkpa. The particulars of the offence are that he, on the 17th day of April, 2003, at Mankor village, Oban in Akamkpa L.G.A., murdered Eno Udo Etukudo.
At the trial, the prosecution called four (4) witnesses and tendered exhibits while the Appellant testified as the sole witness in defence of the charge. After taking addresses from counsel for the parties, the High Court in the judgment delivered on the 28/11/2008, found the Appellant guilty as charged and sentenced him to death. The appellant’s notice of appeal against the above decision, dated and filed on the 12/2/09, contains four (4) grounds of dissatisfaction with it. In the Appellant’s brief filed on the 21/2/12 but deemed on the 4/7/12, settled by Chief F. O. Onyebueke, Esq., the following issues were raised “for consideration” in the appeal:-
1. Whether the confessional statement was corroborated before the trial court relied on same to convict.
2. Whether the confessional statement qualified as one when the interpreter of the Appellant’s statement from the English to the language which was not mentioned and the interpreted version not tendered in evidence.”

Although the records of the court show that the Respondent was duly served with all the processes of the appeal including the Appellant’s brief, no brief of argument or other processes were filed by or for the Respondent in the appeal.

At the oral hearing of the appeal on the 12/11/12, the parties to the appeal were not represented even though they were duly served with the hearing notice of the appeal. Pursuant to the provisions of Order 18, Rule 9(4) of the CAR, 2011, the court treated the appeal as having been duly argued on the Appellant’s brief since the time within which the Respondent was to file the Respondent’s brief had expired and there was no record of any step taken by it to do so. In the circumstances, the appeal is uncontested because there are no submissions from the Respondent to be considered in the determination thereof and all the submissions contained in the Appellant’s brief are deemed conceded to by the Respondent. See Nwadike v Nwadike (1987) 4 NWLR (56) 394; Okongwu v. NNPC (1989) 4 NWLR, 115; Okesuji v. Lawal (1991) 1 NWLR (170) 661 at 674; Salau v. Parakoyi (2001) 13 NWLR (Pt.731) 602. However, even in situations like the one in the appeal, failure by a Respondent to file a brief in an appeal does not automatically translate into the success of the appeal because the law requires that the court should consider the grounds of the appeal, the issues raised from them and the submissions by the Appellant and make findings on whether, the appeal is sustainable in law. See Akpan v. State (1992) 6 NWLR (248) 439; Onyejekwe v. Nigeria Police Council (1996) 7 NWLR (463) 704; John Holt Ventures v Oputa (1996) 9 NWLR (470) 101.

In the above premises of the law, I would consider the issues and submissions by the learned counsel in the Appellant’s brief in the determination of whether the appeal is sustainable in law. The learned counsel for the Appellant did not in the brief, indicate from which of the four grounds of the appeal the above two (2) issues were distilled as required by diligence and good quality of brief writing. However, because the issues can be said to be derivable from the grounds contained on the Appellant’s notice of appeal, even if loosely, I would consider them as presented. Due to the seriousness of the charge with which the Appellant was convicted and sentenced in the judgment appealed against and the two and a half pages submissions made in the Appellant’s brief on the issues for determination, I should reproduce the submissions in their entirety in order to bring out a clear picture of the full complaints of the Appellant in the appeal. The submissions are thus:-
“1. Whether the confessional statement was corroborated before the learned trial judge on it.
2. My Lord, in the course of the investigation the Police obtained two different statements from the Appellant. The statement of 18/4/2008. In the statement of 18/4/2008, the Appellant never admitted the commission of the offence but unfortunately, the prosecution did not tender the statement in evidence. See. Page 90 of the record of proceedings.
3. Whereas the alleged confessional statement as in Exh. 1, was denied by the Appellant as the maker. It is interesting that the prosecution preferred to tender the alleged confessional statement to the earlier one that never contained any admission.
4. I submit with respect that in a criminal trial, the prosecution is not at liberty to pick and choose which of the statement of an accused person to be tendered where there are conflicting statements made by the accused.
5. Therefore, this is an irregular procedure because in a situation like this, the whole statements has to be considered together. See the case of Eze v State (2006) ALL FWLR (Pt.329) p. 849 at 870 – 1, held that in an account where the accused gave inculpatory and exculpatory statements, which statement has to be considered together but the court cannot accept one part that is an admission of facts disadvantageous to the accused and reject another part, otherwise it might not qualify as direct and positive confession. Also admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime, it must be free, voluntary, direct and positive. It is relevant and probative value should be considered even if subsequently retracted, it is desirable to corroborate the confession no matter how slight. See the case of Akpan v. State (2001) FWLR (Pt.56) 753 at 755
6. Finally, the tests for determining the veracity or otherwise of a confessional statement are whether there is any evidence outside the confession to show that it is true, whether it is corroborated no matter how slightly.
7. My Lord, in this present case, the Appellant made two statements but he denied making Exh. 1 but the trial judge never considered both statements and there was nothing to corroborate same apart from the hearsay evidence of the witnesses. I urge My Lord to resolve this issue in favour of the Appellant and allow the appeal on this issue.
8. Whether the said confessional statement Exh. 1, qualified to be regarded as so.
9. My Lords, it is a well known principle of law that nobody is bound to incriminate himself, that is why confessional statements are thoroughly scrutinized and the courts apply caution before relying on them to convict on Exh 1, of an alleged Superior Police Officer is seen on page 84 lines 14 to 25 of the record.
10. It is my humble submission that the endorsement is of doubtful origin as the identity of the Superior Police Officer is not known and the Lower Court ought to have rejected the statement. See the case of Barmo v State (2000) 1 NWLR 641 (Pt.242) at 433-4. Where it was held that the certainty of the identity of the endorser is in doubt or wanting, such statement ought to be rejected. My Lords, I respectively urged that Exh. 1, be rejected at this stage and same struck out. I urge my Lords, to hold that there was no faithful recording of the statement of the appellant during the time of taking his statement and same affected confessional statement.
11. Finally, the said confessional statement must have been made in the presence of Superior Police Officer. My Lords, the endorsement in English language or in any other language. There is doubt as to the type of language used by the Appellant. It is only when the recorder understands the language of the maker that there is the presumption of faithful recording. See the case of Odiachi Adu v State (1980) 1 CA.
12. My Lords, the question begging for answer is whether the Appellant made his statement. In respect of the present case, the statement of the Appellant was recorded in a different language other than the one used by the Appellant. See page 84 line 7 to 11 of the record of proceeding which reads:
“statement recorded by me in English language and read over to the maker he admitted as being correctly recorded and signed.”

CONCLUSION:
It is my humble conclusion that reliance on the Exh.1, the confessional statement occasioned miscarriage of justice and same violated the right of the Appellant and I urge My Lords with respect to set aside the judgment of the Akamkpa High Court, delivered on the 28th day of November, 2008 and in its place dismiss the case against him and discharge and acquit the Appellant.”

The law is also settled that the guilt of an accused person or the commission of a criminal offence can be proved by one of the following:-
(a) the confessional statement of the accused person/s
b) evidence of eye-witness/s or direct evidence, or
c) circumstantial evidence. See Lori v State (1980) 1 – 11 SC, 81, (80) 12 NSCC, 269; Emeka v. State (2001) 32 WRN, 37 (01) 6 SCNJ, 259; Ugabele v State (2006) 28 WRN 1, (06) 6 NWLR (1975) 100; Igri v. State (2010) 7 WRN, 31 at 47; Joshua v. State (10) 1 WRN, 41 at 64.

From the submissions by counsel on the issues he raised, it is clear that the complaint against the decision of the High Court is predicated on the confessional statement of the Appellant admitted in evidence as Exh.1 on which the High Court was said to have relied solely, for its decision. By the provisions of Section 27(1) (now Section 28) of the Evidence Act, a confession is an admission made at any time by a person charged with a crime, stating the inference that he committed that crime.

Under the provisions of Section 27(2) (now Section 29 (1), (2) and (3), a free and voluntary confession is admissible in evidence at the trial of the matter for the offence he was charged with. See Saidu v. State (1982) NSCC (13) 70; Igago v. State (1999) 14 NWLR (637) 1, at 16; Uluebeka v State (2000) 7 NWLR (665) 404 at 437. If a confessional statement attributed to an accused person was not made voluntarily and freely by him, then it is not admissible in evidence at his trial for the offence he was alleged to have admitted therein. Even where admitted anyhow, the trial court or an appellate court, has a duty to expunge it as inadmissible. See Ekeke v. State (1999) 13 NWLR (635) 456; Saidu v State (supra) at 78; Idowu v. State (2000) 7 SC 1150; Onochie v. Odogwu (2006) 2 SC (Pt.1) 153.
There is no other evidence which can be stronger than a person’s own free and voluntary, direct and positive, admission of the commission of the offence with which he was accused and charged before a court of law. There are two categories of confession:
a) confession made by an accused person in extra judicial statements to police officers in the course of investigating the offence with which he was accused. Exhibit ‘1’ in the Appellant’s case belongs to this category.
b) Confession made by on accused person during his trial before the court by either pleading guilty to the charge against him at the time of his arraignment or by admitting the commission of the offence in his oral testimony before the court. Once the court is satisfied that the plea of guilt or direct admission of the commission of the offence was freely and voluntarily made by an accused person before it, it is safe to accept same and the court may rely on it to convict him of the charge under the provisions of Section 218, Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria, 2000. See Kanu v R. (1952) 14 WACA, 30 at 32; Osuji v Inspector General of Police (1965) LLR, 143; Omoju v. FRN (2008) ALL FWLR 1656.
Because as I stated earlier, Exh. ‘1’ is an extra judicial confession, where such admission or confession is proved to be true to the satisfaction of the court and as required by judicial practice, it is also sufficient without more; that is alone, to ground the conviction of the maker for the offence he was charged with Nwaeze v State (1996) 2 NWLR (Pt.425) 1; Akinmoju v. State (2000) 4 SC (1) 64; Nwosu v State (2004) 15 NWLR (Pt.897) 466; Mohammed v State (2007) ALL FWLR (383) 46 at 60; Idowu v. State (supra); Uzoka v. FRN (2010) 2 NWLR (1177) 118 at 147.

However before relying solely on such confessional statement of an accused person to convict him for the offence he was charged with, a trial court is required by established principle of judicial practice to ascertain its truth by applying the following tests:-
a) is there anything outside the confession to show that it was true
b) is the confession corroborated?
c) are the statements made in the confession in fact true as far as they can be tested?
d) did the accused person have the opportunity of committing the offence he was charged with?
e) is the confession possible?
f) is the confession consistent with other facts which have been ascertained and proved? See Daura v. State (1980) 8-11 SC, 236; Udofia v. State (1984) 12 SC, 139; Ojegele v. State (1988) 1 NWLR (71) 414; Nwaebonyi v. State (1994) 5 NWLR (343) 130; Ubierho v. State (2005) 1 NCC, 146 at 161; Akpa v. State (2007) ALL FWLR (351) 1560 at 1582 (07) 2 NWLR (1019) 500.
In the case of Oseni v State (2012) 2 MJSC (Pt.11), 123 at 150 – 153, it was held that:
“Whether a conviction based on a confessional statement will be upheld or not will depend on whether or not the confessional statement passed satisfactorily, the six tests listed above.”
The Supreme Court had earlier in the above judgment listed the six tests which I have set out above. Thus, if after the application of these tests, the trial court is satisfied with the truth of the confession, it can convict the accused person on the confession alone. But where after testing the confession, there is nothing outside it showing that it was true, it should not rely solely on it to convict the accused person. It should be noted however that the aforementioned tests are applicable only to extra judicial statements made by accused persons, normally to police officers in the course of their investigation of the offence and before the formal charge against them was made before the court. When such statements were tendered and admitted in evidence at the trial of the accused person, then the trial court in its assessment or evaluation of the evidence adduced by the prosecution in the discharge of the burden of proving the charge against the accused person beyond reasonable doubt, has a duty to apply the tests in respect of the confession before relying on it to convict him. Where at the trial, the accused person gives oral evidence before the trial court on both, directly and positively and on his own freewill, admits the commission of the offence with which he was being tried in that court, then the necessity or even the desirability of testing the truth of such an admission or confession would not arise. In such a situation, the trial court would be entitled to rely on such confession made before it believing it to be true prima facie and convict him as charged because after all, as stated eloquently by Tobi, JSC, in the case of Mohammed v. State (supra) at page 60.
“the accused person is the best person and in the best position to say whether or not he committed the offence.”
See Nwosu v. State (supra); Oche v State (2007) 5 NWLR (1027) 214.
Now, in order for the prosecution to provide evidence that the confessional statement/s attributed to an accused person was true, the police officers who investigated the offence against him and to who the statement was made have a duty to test the truth of facts stated therein by investigating further so as to see whether there were other facts in the case which made the admission by the accused person, probable. The police officers and the prosecution should not simply be satisfied with and rely on the making of a confessional statement by an accused person alone in the investigation of the offence with which he was charged. See Queen v. Obiasa (1962) 1 ALL NLR, 651; Ukwunenyi v. State (1989) 1 CLRN, 115 at 121.

One other relevant principle of law in the appeal is that a trial court can convict an accused person on a confessional statement denied or retracted by him. See Edamine v. State (1996) 6 NWLR (438) 530; Idowu v. State (supra). Again, before convicting on such a retracted confession alone, prudence and principles of judicial practice require that a trial court should first look for some corroborative evidence outside it, be it circumstantial or slight, connecting or tending to connect the accused person with the commission of the offence. See Onochie v. Republic (1966) NMLR, 307; Durugo v. State (1992) 3 NSCC, 22 at 33; Kareem v. State (2002) FWLR (125) 796 at 810; Bassey v. State (2012) 3-4 MJSC, 177 at 194 – 6.

In the present appeal, the Appellant was charged with the offence of murder, as stated at the beginning of this judgment. In order to secure conviction for the charge of murder under the provisions of Section 319 of the Criminal Code, the prosecution was required by law to prove the following elements, beyond reasonable doubt:
a) that the death of a human being has occurred or that the deceased had died
b) that the death of the deceased was caused by the acts of the accused person, and that
c) the acts of the accused person were intended or with the knowledge that death or grievous bodily harm was their probable consequence.
All these elements must be proved together or must co-exist before a conviction for the offence can be entered and failure to prove any one of them would leave doubt in the prosecution case which the accused person is entitled to have resolved in his favour. See Kada v. State (1991) 22 NSCC (Pt. II) 592 at 598; State v. Danjuma (1996) 8 NWLR (469) 660 at 668; Ubani v. State (2003) 18 NWLR (851) 224; Igabele v. State (supra); Uguru v. State (2002) 9 NWLR (771) 90; Bright v. State (12) 1-2 MJSC, 34 at 61.

I have stated elsewhere before now that the guilt of an accused person can be proved by use of a confessional statement. From the record of the evidence presented at the trial of the Appellant by the prosecution, their case was entirely predicated on the confessional statement attributed to him and admitted in evidence as Exh. 1. I have read the said Exhibit which appears at pages 82 – 84 of the record of the appeal and it contains an admission by the Appellant as the maker, stating and suggesting the inference that he committed the offence he was charged with, i.e. the murder of his wife, Eno Udo Etukudo. The Exhibit is therefore a confession as defined under the Evidence Act. The confession along with the evidence of the other witnesses, including the oral evidence of the Appellant all undoubtedly, shows that Eno Udo Etukudo had died or is dead. There was no dispute about the death of the said Eno throughout the trial and so the death had been proved beyond reasonable doubt.

The second element of the offence of murder is that the death of the said Eno must be proved to have been caused by the acts of the Appellant in order to hold him responsible for it. On this element, the High Court had in its judgment, page 12 thereof and page 73-74 of the record of appeal found thus:
“On the second ingredient as to whether it was the accused who caused the death of the deceased. I agree that there is no eye-witness account as argued by defence counsel. There is therefore no direct evidence as to who caused the death based on the senses. The question is where there is no eye witness account, is there any other manner by which this could be proved. The law allows for proof by circumstantial evidence, there is evidence by PW1, PW2 and PW3 that the accused person admitted killing his wife at the state CID, Calabar in the presence of many people. This in my view was not seriously challenged under cross-examination. These witnesses said they were present when the accused made this admission viva-voce. This was corroborated by the confessional statement in Exhibit 1. The accused said in Exhibit 1 thus “I know the cause of her dead. I am responsible for her dead. I personally killed her. Both of us had quarreled … I used my matchet and cut her on her forehead and the matchet pass and cut her on her neck … she died ….” An accused person can be convicted solely on his own confession. See Ubierho v. State (supra) and Yahaya v. State and Rabiu v. State (supra) and several other legal authorities on this point. The accused even knew the cause of death to be a cut in the neck of his wife and some cuts on the head.”

It is clear that the reasoning of the High Court in the above finding is that the evidence of PW1, PW2 and PW3 that they heard the Appellant admitting killing his wife at the State CID, Calabar, was the circumstantial evidence, which in the absence of direct evidence of eye witness/es, proved that it was the Appellant who in fact killed or caused the death of the deceased. The said evidence was said to have been corroborated by the confessional statement admitted as Exhibit ‘1’. Circumstantial evidence is, simply put, evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with certain degree of accuracy. For the purposes of a Criminal trial, circumstantial evidence is evidence of the circumstances surrounding the commission of an offence with which an accused person was charged given by witnesses who are not eye witnesses but which is capable of proving the essential elements of the offence beyond reasonable doubt. There is no fixed yardstick by which any circumstantial evidence can be measured before it can be entered against an accused person charged with an offence for which the circumstantial evidence is the only one available. Each case would depend on its peculiar facts, but for circumstantial evidence to warrant conviction it must be cogent and compelling and there must be no aspect of the case which weakens the inference as to the guilt of the accused person. It must show that the accused person alone had the opportunity of committing the offence and no other had that opportunity. See Ikem v. State (1981) 1 NWLR, 278 at 386; Ukora v. State (1977) 4 SC, 167; Atano v. A-G, Bendel (1988) 2 NWLR, 201; Igabele v. State (supra). To ground a conviction for the charge of murder, as in the Appellant’s case, the Supreme Court had in the case of Oladejo v. State (1987) 2 NSCC, 1025 held that circumstantial evidence “must be cogent, complete, unequivocal, positive and point irresistibly to the accused person and no one else as the culprit. The facts must be incompatible with his innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt.” See also Lori v. State (1980) 8-11 SC, 81 at 86; Igabele v. State (supra).
The law is also that in cases of murder, the cause of death could be inferred from circumstantial evidence and so the court can in appropriate cases; infers that the deceased died from the injuries inflicted on him by the accused person in which case, medical evidence on the cause of death, though desirable, is not essential. See Bamhen v. State (1984) 4 SC, 1; Uyo v. A-G, Bendel (1986) 1 NSCC, 197; Enwenya v. A-G, Bendel (1993) 3 SCNJ, 166; Effiong v. State (1998) 5 SCNJ, 158; Essien v. State (1984) 3 SC, 14; Ejiofor v. State (2001) 6 NSCQR (1) 209 at 227. Like I mentioned above, the circumstantial evidence must be on or directly relate to the facts of the commission of the offence with which an accused person was charged and leaves no degree of possibility or chance that other persons could have been responsible for the commission of the offence. As can clearly be seen, the evidence of PW1, PW2 and PW3 in respect of Exh. ‘1’ said to be circumstantial evidence by the High Court was not evidence of the surrounding circumstances of the commission of the offence by the Appellant but on and of the fact that the Appellant had admitted that he killed his wife at the State CID, Calabar. The evidence of the witnesses was not on the circumstances of the offence but on the alleged admission by the Appellant to the Police. Such evidence in my view does not amount to the circumstantial evidence envisaged by the law which is capable of proving that it was the Appellant alone and no other person could have been responsible for the commission of the offence with which he was charged. The evidence of the witnesses could only go to and be used for the purposes of deciding whether indeed despite his denial, the Appellant had made the statement attributed to him and admitted in evidence as exhibit ‘1’. From the record of the evidence adduced by the prosecution at the Appellant’s trial, there was no circumstantial evidence of the circumstances of the commission of the offence that was cogent, complete, unequivocal, positive and irresistibly pointing to the fact that it was the acts of the appellant that caused the death of the deceased. Since the evidence of PW1, PW2 and PW3 used as circumstantial evidence in proof of the second element of the offence relate only to and entirely predicated on the assertion that the Appellant indeed admitted or confessed to the commission of the offence as contained in Exh. ‘1’. I now turn to that statement.

It may be remembered that one of the complaints by the learned counsel for the Appellant under his issue No. 1 is that the Appellant had made two statements to the Police in respect of the offence he was charged with; the 1st on the 18/4/2003 and the 2nd on the 27/4/2003. That in the 1st statement, the Appellant did not admit the commission of the offence and that the prosecution did not tender it in evidence. It was his contention that the prosecution could not pick and choose which of the statements to tender in evidence since they are in conflict and that it was under a duty to tender all in evidence.

Learned counsel is right in the argument that in a Criminal trial, the prosecution has a duty to tender all statements made by an accused person to Police Officers during the investigation of the offence with which he was charged whether such statements are in the accused favour or not. It is the legal duty of the prosecution to tender all relevant evidence that was gathered or obtained during the investigation of an offence with which a person is accused and tried for before a court of law whether or not such evidence was in favour of the accused person. See Dandare v. State (1967) NMLR, 56; Ogudo v. State (2012) 12 MJSC (Pt.1) 108, 140.
In this regard, it must be remembered that the primary duty of the state in criminal trials is not to secure a conviction against an accused person at all costs or by all means, but to ensure that people to who commit offences punishable under our penal laws are brought to justice to answer for their crimes or take full responsibility for their actions. The prosecution should therefore not be seen to withhold evidence of whatever nature which is directly relevant and material in the determination of whether an accused person was guilty of the offence he was charged with, because it would be favourable to him.

As seen above, the learned counsel had said that the statement made by the appellant on the 18/4/2003 to the Police was not tendered in evidence by the prosecution at the trial. I have observed that the prosecution had on the 8/8/03; the day when PW1 testified at the trial, filed a notice of additional evidence on which was listed as item 3, the statement by the Appellant as the complainant, of the Oban Police Station dated the 18/4/03. During his evidence in chief, the Appellant held said that on the 18/4/2003 when the body of the deceased was found “was asked to report the matter to the Police. Police received the report and the Police came. It is the Police at Oban Police Station.” See page 42 of the record of the appeal. Under cross-examination, the Appellant had stated that “I went and reported the matter of Oban Police.” The statement of the Appellant as complainant, made on 18/4/2003 at the Oban Police Station was tendered during cross-examination of the Appellant and admitted in evidence as Exhibit ‘5’. In his entire testimony, the Appellant did not say that he had made any other statement to the Police on the 18/4/2003 in respect of the offence he was charged with. PW4; the Police Investigating Officer at State CID, Calabar had maintained under cross-examination that the Appellant was the complainant in the case before he then became the accused person. So the only statement made by the Appellant to the Police in respect of the death of his wife, on the 18/4/2003, was as a complainant. That statement as stated above was tendered and admitted in evidence as Exhibit ‘5’ and so one wonders which other statement the learned counsel has accused the prosecution of not tendering at the trial of the Appellant. There was no such other statement made by the Appellant on the 18/4/2003.

Now back to Exhibit ‘1’, the conviction of the Appellant was based on the said exhibit as a confessional statement. The question that arises is whether the High Court had before relying solely on the said confession, applied the tests as set out in the judicial authorities cited on the point earlier, in order or find out if it was true? Although the High Court did not in its judgment set out specifically, the tests listed, it had stated at page 13 of the judgment; page 75-76 of the record of the appeal, that:-
“The accused seeks to retract his confession in Exhibit ‘1’.
That does not affect the admissibility of the said impression (sic). I find as a fact that the confession is true. The confession has in fact disclosed facts which shows that it is likely to be true. The events disclosed therein are in consonance with the evidence as adduced by the prosecution witnesses for example the description of the injuries on the body of the deceased as stated also by the accused under cross-examination, that the accused led the search for the corpse and discovered same himself, that he had at the time of the offence the opportunity to so commit the said offence.”

The above finding by the High Court is to the effect that the confession of the Appellant was true because:-
a) the events disclosed therein are in consonance with the evidence of the prosecution witnesses in respect of the injuries on the deceased’s body and that accused led the search for the deceased and
b) that the Appellant had the opportunity to commit the offence at the material time.

I should perhaps say here that because the Appellant had both at the time Exhibit ‘1’ was tendered in evidence and in his oral testimony at the trial denied making the confession, the duty of the High Court to diligently test its truth before ascribing weight to it and relying solely on it to convict the Appellant was onerous and cannot be over emphasized. In addition to the case of Oseni v State (supra) which stated that whether or not a conviction based on a confessional statement will be affirmed depends on whether it passed the tests listed therein, the Supreme Court had emphasized in the case of Chibuike v. State (2012) 1-2 MJSC, 74 at 95 that:-
“where an accused person denies making a confessional statement, it is desirable and in the interest of justice that some evidence outside the confession should be led and accepted by them, such evidence ends up making the confession appear true or probable”.
Similarly, the apex court had said that “A confession is more often denied or retracted. The denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it”, in the case of Oseni v. State (supra). See also Dibie v. State (supra) at page 30; Idowu v. State (supra) 50; Ukpong v. Queen (No.1) (61) 1 SCNLR, 23.

The Appellant’s statement in Exhibit ‘1’ has given the sequence of events before, during and after the commission of the offence he was charged with which are particularly within his personal knowledge as the only person who knew, saw and acted in the manner described by him therein. The facts as narrated by the appellant in exhibit ‘1’, are consistent with the evidence of the facts stated by PW1, PW2 and PW3 in respect of the events that happened after the Appellant had reported to PW1 that his wife had gone to the farm on the fateful date but did not return home by the time of the report. The confession is also rendered probable by the fact that all PW1, PW2 and PW3 had testified that it was the Appellant that led the search team set up by PW1 to look for the deceased and it was he who showed where the body was eventually found at the farm. PW1, PW2 and PW3 also gave unchallenged evidence that the Appellant had in their presence at the State CID, Calabar, admitted to PW4 and before a superior police officer, (called Bigman by PW1) that he in fact killed his wife. Although the Learned counsel had said that the said piece of evidence was hearsay, he did not show how it became so. However, the evidence of the witnesses in respect of the Appellant’s confession at the State CID, Calabar is not hearsay because they were present physically and heard directly from the Appellant himself. It is direct evidence of what they heard the Appellant say to PW4 and the SPO and so it is in line with requirements of Section 77(b), (now Section 125, (b) of the 2011 Act) of the Evidence Act which requires that oral evidence shall be direct and of a fact heard by the witness. PW1, PW2 and PW3 physically heard the Appellant admitting or confessing to the killing of the deceased to PW4 and before the SPO he was later taken to, which essentially is what was contained in Exhibit ‘1’. Their evidence in respect of the confession is therefore not hearsay in law. PW4 the Investigating Police Officer at the State CID testified that after the confession by the Appellant the Appellant had produced the matchet which he said he used in the commission of the offence and the matchet was admitted without objection in evidence as exhibit ‘2’.
From the evidence of the nature of the injuries seen by PW1, PW2 and PW3 on the deceased’s body at the scene it was found and the evidence of the Appellant at the trial, there is no doubt that it is consistent with and support the statement of the Appellant in exhibit ‘1’ as to the injuries inflicted on the deceased which eventually caused her instant death. The cause of the death is therefore on the face of such cogent evidence, beyond reasonable doubt in the circumstances of the case. The circumstantial evidence of PW1, PW2 and PW3 on the facts of the commission of the offence, their evidence that the Appellant had admitted the commission of the offence in their presence, the evidence of the nature of injuries seen by all the witnesses on the decessed’s body and the production of the matchet by the Appellant as the one used in the commission of the offence, in my view, amount to sufficient support and corroboration of the fact that the Appellant’s confessional statement in Exhibit ‘1’ is not only probable but true. It should be remembered here that the corroboration required for a free, voluntary, direct, positive and compelling confession such as that of the Appellant, is only some credible evidence outside it, no matter how slight or circumstantial it might be connecting or tending to connect the accused person with the commission of the offence he was charged with.

The Learned counsel for the Appellant had challenged the confession on the ground that the endorsement on it is of doubtful origin as the Superior Police Officer is not known, citing Barmo v. State (supra). As a general re-statement of the law, it was held in the case of Ogbodu v. State (1986) 5 NWLR 284 that
“The practice whereby the police officers take the accused person before a Superior Police Officer for the purpose of attestation or confirmation of the statement is, not a rule of law even though it is commendable in serious cases … but failure to observe the practice, would not render the statement inadmissible.”
In the later case of Edhigere v. State (1996) 8 NWLR (464) 1, at 7 the Supreme Court had laid the law that a confessional statement is not affected by the absence of an endorsement by Superior Police Officer as long as it was free and voluntary. See also R. v Nwigboke (1959) SCNLR; Egboghonome v. State (1993) 7 NWLR (306) 383; Alarape v. State (2001) 5 NWLR (705) 79; Igago v. State (1999) 11 NWLR (637) 1 at 17.
In the premises of the above position of the law, what had become popularly known as the Judges Rules are rules of caution which accord with prudence and their observances has been recommended by the courts particularly in serious cases such as murder, but non-compliance with them is not necessarily fatal to the admissibility of or even weight to be ascribed to a confessional statement made freely and voluntarily by the accused person. It is not a requirement of any law that if a confessional statement has not been read over and confirmed before a Superior Police Officer, it will ipso facto cease to be effective or be rendered inadmissible. The endorsement or confirmation of a confessional statement by such SPO simply makes proof that it was made or given by the accused person voluntarily, easier and its absence does not adversely affect the confession.

In the present appeal, since the Appellant did not challenge the confession on the ground that it was not voluntarily made by him, the mere fact that the Senior Police Officer who endorsed or confirmed it did not state his name in full on the endorsement did not affect or go to render the confession inadmissible evidence or unreliable. Learned counsel had also said that because the statement was recorded in English, there is doubt as to the type of language used by the Appellant even though he later in the brief had asserted that the statement was recorded in a different language other than the one used by the Appellant. He did not however say in which language the Appellant made or gave the confessional statement. I have observed that under cross examination, PW4 who recorded the Appellant’s exhibit ‘1’ had testified thus:
“I took the statement of the accused. I wrote the statement myself. Accused person did not say he cannot read or write. Accused made statement in Efik and it was recorded in English in the presence of both the accused, the Sgt. Joseph Bassey (now Inspector) and myself. The accused person signed the statement.”

It is clear by the above piece of evidence that the Appellant made his statement in the Efik language even though he did not say he could not read and write. The statement was recorded by PW4 in English language in the presence of another police officer and the Appellant signed it thereafter without any record of a complaint on the language in which it was recorded. In the case of Ogbodu v. State (supra) it was held that:-
“Although it is desirable and where possible, the accused person’s statement should be taken down in his own words but if the constable himself interpretes it in another language and so writes in that other language, the statement is still admissible. The test for admissibility of the statement is always whether the statement was made freely and voluntarily. Udo v. R. (1964) 1 ALL NLR, 21 and Iyun v. State (1965) 1 ALL NLR, 203 applied.”
Here, it is not the case of the Appellant that he made the statement in Efik language to another person who in turn interpreted it into the English language to PW4 who recorded it. If that were the case, the law is firmly established that such an interpreter must be called as witness in order for the statement in English language to be admissible in evidence. Where he was not called to testify the English statement would be hearsay evidence and therefore inadmissible in law. See R. v. Ogbuewu (1949) 12 WACA, 483; R. Sakwakwa (1960) 5 FSC, 12; Shiyero V. State (1976) 3 SC, 63; Nwaeze (1996) 2 NWLR (428) 1; F.R.N. v. Usman (2012) 3 MJSC (Pt. 1) 25 at 43. There is no suggestion in this appeal that any other person had interpreted the Efik language statement to English language to PW4 who recorded it and so the principle of law enunciated in the above case is not applicable to Exh. ‘1’.

Worthy of mention here is the fact that apart from the Appellant signing Exhibit ‘1’ without protest as to the language in which was recorded by PW4, the Appellant did not challenge the earlier statement recorded in English as a complainant and admitted in evidence as exhibit ‘5’ and from the record of the appeal, he gave his evidence in English language without complaint that he did not understand the language. These facts leave no doubt that the Appellant understands English language such that he can speak and read it and that he understood exhibit ‘1’ when it was recorded by PW4 and signed it. In the circumstance of Exhibit, it has not been demonstrated in this appeal that even if the Appellant made it in Efik language but it was recorded in English language by PW4, that ipso facto has in any rational way affected the content of what he said to PW4 since the accuracy of the translation was not challenged by the Appellant before he signed it. As seen in the case of Ogbodu v. State (supra) the language in which the statement was made by an accused person and its translation by the recorder in another language is not material so long as the statement was freely and voluntarily made by him. The language is of no moment in the Appellant’s case.

The Learned counsel had also said that in the Appellant’s statement made on the 18/4/2003, admitted in evidence as exhibit ‘5’ he did not admit that he committed the offence he was charged with, unlike in exhibit ‘1’ and that the High Court had to consider both statement in determining the guilt of the Appellant as part of the evidence adduced in the case. I have explained before now that exhibit ‘5’ was the statement of the Appellant as the complaint that the body of the deceased was found after he made report to the village head that she had gone to the farm but did not return home.
In the report, the Appellant simply said he did not suspect any one since he did not see what killed her.

Much of the other information in the exhibits is the same as the account given by the prosecution witnesses on the report by the Appellant and how the deceased body was eventually found, Exhibit ‘5’ did not contain either an admission or a denial by the appellant of the commission of the offence and did not go to the proof of whether or not he was guilty of the offence he was later charged with. That statement was of no moment in the assessment of the evidence adduced by prosecution and the proof of whether the Appellant had made a free and voluntary confession which is probable or true.

For reasons which I have set out earlier, my view is that Exhibit ‘1’, a free and voluntary confessional statement made by the Appellant has been sufficiently corroborated by the evidence of PW1, PW2, PW3 and exhibit ‘2’ and so is not only probable but true. I have also noted that the appellant had in his oral testimony denied that he made exhibit ‘1’ or did not sign it. However, in order to effectively deny Exhibit ‘1’, the Appellant should not merely say that he did not make the statement but should furnish the court with sufficient evidence showing that he truly did not make it. See Obule v. State (1976) NSCC 101. In his evidence in chief, the Appellant had stated that:
“I see exhibit ‘1’, I have no knowledge of it. I did sit with the police and we had some discussions. I have no knowledge if it was reduced to writing.”

This piece of evidence shows that the Appellant had indeed made a statement to the police at the State CID, Calabar on the offence he was accused of and that statement was Exhibit ‘1’ which was the only one he made to the police at the State CID, Calabar.

One other point worthy of note here is the inconsistency between the Appellant’s oral evidence in court and exhibit ‘1’. The law generally, is that where a witness gives evidence in court which is inconsistent with a previous statement made by him in respect of the same issue, the testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act. See Oladejo v. State (1987) 3 NWLR (61) 364 at 427; State v. Usor (1972) NMLR 211; R. v. Ukpong (1961) 1 ALL NLR, 25. However, the law has made an exception to the above general rule where the extra-judicial statement is a confession by an accused person who gives inconsistent oral testimony simply denying or retracting from the confession. The position is that even though the statement may conflict with the evidence in court, it will not be rejected but rather relied on if it is positive, direct and in accord with other proved facts. In Akpan v. State (2001) FWLR (75) 428 at 443; Karibi-Whyte, JSC had explained the law as follows:-
“The question whether the principle in these cases enunciated above applied to the evidence of accused persons, including their confessional statements was decided in the case of Egboghonome v. The State (1993) 7 NWLR (306) 383, where it was held that the inconsistency rule did not apply to retracted extra-judicial confession of an accused person. The implication is that it applied to extra-judicial statements which are not confessions. In addition, the consequence of the Egbaghonome case is that where an accused makes an extra-judicial statement, admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the trial, by giving evidence contrary to that evidence.”
Similarly, the apex court has recently reaffirmed the position in the case of Bassey v. State (2012) 3-4 MJSC 77 at 194-6 where Rhodes-Vivour stated that:-
“Where the confession is found by the court to have been voluntary and it is true but inconsistent with the accused person’s evidence in court, it is safe to convict. R v. Walter Sykes (1913) 18 CAR p. 233; Queen v. Obiasa (1962) 2 SCNLR p. 402; Mumuni v. State (1975) 6 SC page 79; Akpan V. State (1992) 6 NWLR (pt. 248) p. 439.”
The law is therefore now settled that the inconsistent oral evidence of the Appellant in court did not render Exhibit ‘1’ unreliable in the determination of whether he was guilty of the offence he was charged with. The statement is unequivocal and compellingly leaves no doubt reasonable in the circumstances of the death of the deceased, that he was fully responsible for the death. The High Court was as a result right in relying on the Exhibit to find that it was the acts of the Appellant that caused the death of the deceased.

The last of the essential elements of murder is that the acts of the Appellant were done with the intention or at least knowledge that death or grievous bodily injuries were the probable consequence.

The unassailed evidence before the High Court was that the deceased’s neck and head had cuts from a sharp weapon which the Appellant had confessed to be a matchet used by him in the commission of the offence and which he produced to the police and was tendered in evidence. The head and neck of a human being are undoubtedly very delicate and sensitive parts of the body that any blow which causes injury to them would ordinarily be very serious and grievous. A deliberate blow to the head and neck of a human being by another with a matchet would reasonably result in grievous harm or injuries to the body instantly and is probable to cause death especially when delivered by a healthy middle aged (50 years old) man as the Appellant. The evidence of the witnesses that the neck of the deceased was cut “almost to completion” or completely leaves no doubt as to the amount of force with which the blow was delivered by the Appellant. The law is settled that every person in presumed to intend the natural consequence of his acts and so where by an unlawful act, he causes another person grievous bodily injuries which led to the death of that person, he is presumed to have intended to kill that person and would be guilty of the murder irrespective of his intention. See Ajidahun v. State (1991) 9 NWLR (213) 33 at 44; Audu v. State (2003) 7 NWLR (820) 516; Ahmed v. State (1999) 7 NWLR (612) 641. By the use of a matchet to deal forceful blows to the neck and head of the deceased, the Appellant undoubtedly knew and intended to inflict and cause her death or at least very grievous bodily injury or harm that were probable to cause such death. The facts and evidence of the witnesses and the Appellant leave no reasonable doubt about the issue. I, in the above circumstances, in agreement with the High Court that the acts of the Appellant were done with the knowledge and/or intention of causing the death of the deceased or causing her such grievous bodily harm or injuries probable to cause her death. In the result, my answer to the two (2) issues raised by Learned counsel to the Appellant are in the affirmative, i.e. that the Exh. ‘1’ was sufficiently corroborated by evidence outside it and that the said exhibit ‘1’ qualifies to be regarded as a confession.

Having resolved the issues raised in the appeal against the Appellant that would have ended the consideration of the appeal. However because the Appellant’s confessional statement is the sole basis of the decision by the High Court, I intend to look at the confession and consider any defence that may appear in it for the Appellant.
The law permits and in fact requires that this court should do so even where no such defence was considered by the trial court. This was how the position was put in the case of Ekpenyong v. State (1991) 6 NWLR (200) 683 at 698:-
“It is a settled principle that an accused in a murder charge is not restricted in the consideration of his defence to the defence raised by him, but it is open to the court to consider other defences available to the accused on the facts preferred or established before the court of trial. On appeal, the Appeal Court will consider all the defences open to the appellant on the facts establish in the court of trial inspite of the fact that such defence or defences were not considered in the lower court.” See Ojo v. State (1973) 11 SC 331 at 339.”

In exhibit ‘1’, the Appellant had stated inter alia that:-
“On Thursday 17-4-2003 around 8 a.m. she left to farm at Iwang Ibe to plant cassava. When it was ground 9 a.m., I went to the same form and met her. We are not sharing the same farm. It is after her farm before you get to my own farm. When I wanted passing she started abusing me and I also abused her. She was right inside her farm talking to me while I was on the way passing to my farm. She was abusing me that, God will punish my father and that nothing will be better with my family. It was then I entered into her farm and met her we started fighting. It was during the fight that I used my matchet and cut her on her fore head and the matchet pass and cut her on her neck. When I cut her with that matchet there was no body around.”

From the above assertion by the Appellant he could be taken to say that it was because the deceased had abused him that they started fighting. In other words, he was provoked into the fight with the deceased by the abuse from her, thereby raising a possible defence of provocation.

Provocation is simply some act or series of acts done by a deceased person to the accused person which would cause in any reasonable man and actually caused an accused at the material time a sudden and temporary loss of self control, rendering him so subject to passion so as to make him for that moment, not master of his mind. It may be by physical or verbal acts of aggression or assault which suddenly arouses heat and passion in the person assaulted so as to lose self control completely at the moment of reaction. See Lado v. State (1999) 9 NWLR (619) 369, 380 & 385; Alonge v. A-G Western Nigeria (1964) ALL NLR, 108; Ekpeyong v. State (supra); State v. Ewito (1966) ALL NLR 503. Provocation is a statutory defence for it is provided by the Criminal Code in Section 284 which provides thus:
“284 – A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he is in fact deprived by the provocation of the power of self control, and acts upon it on the sudden and before there is time for his passion to cool provided that the force used is not disproportionate to the provocation and is not intended and is not such as is likely to cause death or grievous harm.”
Section 283 of the Code defines provocation as follows:-
“… any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in conjugal, parental, filial or fraternal, relation or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.”
From the above definition of and provision for the defence, what amounts to or constitutes provocation is an issue or question of fact to be determined by the court in the peculiar circumstances of a case. For the defence to avail an accused person however, from the tenor of the provisions of Section 284 above, the following essential elements must be shown to co-exist:-
a) there must be the wrongful acts or insults to the accused person,
b) the wrongful acts or insult were sufficient to cause a reasonable man and actually caused the accused person, to lose self control and
c) the mode of reaction or resentment must be proportionate to the acts or insults.
See Akang v. State (1971) ALL NLR 48 at 51; Nwambe v. State (1995) 3 NWLR (384) 385 at 406; Jideonwu v. State (1997) 1 NWLR (480) 209 at 218; Agunbiade v. State (1999) 4 NWLR (599) 391; Uwagboe v. State (2008) ALL FWLR (419) 425. Coker JSC had stated the basis of the defence of provocation in the case of Akang v. State at page 49 wherein he said:-
“Provocation which reduces what would otherwise amount to murder to manslaughter is a legal concept made up of a number of elements which must co-exist. It is of paramount importance in the consideration of this concept that the fact which held out as a natural and justifiable action of the provoked person be done not in self revenge but in ventilation of a natural, sudden and contemporaneous feeling of anger caused by circumstances of the occasion. See Vincent Chukwu V. The State (1996) NMLR 274.”
Since what constitutes provocation depends on the peculiar facts and circumstances of a case, I would look at the facts as given by the Appellant in the above extracts of exhibit ‘1’. Worthy of note is that the Appellant had followed the deceased to the farm from their house and abused the deceased back when she abused him. It was the Appellant who induced or called for the abuse when he followed the deceased right into her farm and engaged her in a fight. The Appellant did not say that the deceased had any weapon at the time she abused him or when they started fighting. For the Appellant to have used a matchet to cut the deceased on the neck and head and NOT for instance on the leg or arm, because she insulted or abused him verbally, clearly shows that his action was out of proportion of the abuse or insult and was premeditated. The High Court was therefore right and so I agree with it when it said in its judgment that:-
“The accused has not raised any exculpating circumstances. Though he denied making Exh. ‘1’, he stated therein that the deceased abused him so he cut her. He did not say so in his oral evidence. I am of the view that this was not sufficient to provoke him to cut the neck of the deceased almost to completion. I find this act heinous and unwarranted. It was not sufficient to provoke the reaction of the accused in this manner. Accordingly I find the act of the accused in cutting the deceased, Late Eno Udo Etukudo, on the neck and head intentional and premeditated. It cannot be excused under the laws of our land.”
On the established facts and evidence of the Appellant’s case, the defence of provocation does not avail him for a reasonable man of his standing would not have been provoked by the abuse which he replied and make him loss self control to use a matchet on his wife and cut her neck and head.

In the final result, I find no merit in the appeal which for that reason, is dismissed. The conviction and sentence of the Appellant by the High Court for the charge of murder are affirmed.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA.

In a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused Person could have caused the death of the deceased but that it actually did. Audu v. State (2003) NWLR pt 820 page 516, Uguru V. State (supra).

The accused in this case had made confessional statement Exhibit 1, that he, matchet his wife with the matchet Exhibit 5. The accused gave the deceased, Eno, his wife matchet cuts on the neck and the forehead.
There is no evidence stronger than a person’s own admission or confession. Such confession is admissible in evidence. Although accused person can be convicted solely on his Confessional Statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. Dibie v. State (2007) 9 NWLR pt 1038 page 30, Nwaegbonyi V. State (1994) 5 NWLR pt 543 page 130.

The courts have held that
“a free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without corroborative evidence so long as the court is satisfied with its truth”.

The court is however mandated to verify or test the truth of the confession by looking at the other credible evidence and matching it with the Confessional Statement. Solola V. State (2005) 11 NWLR pt. 937 page 460, Nwaeze V. State 2 NWLR pt 428 page 1, Akinmoju V. The State (2000) 4 SC pt. 1 page 64.

The trial court was right to have convicted the accused by his Confessional Statement made to the police.
For this and the fuller reasons in the lead judgment, this appeal is unmeritorious and therefore dismissed. I abide by all the orders contained in the lead judgment and adopt them as mine.

JOSEPH TINE TUR, J.C.A.: I read in advance the lead judgment of my Lord, Mohammed Lawal Garba, JCA and I concur.
I shall add the following comments:
In Moses Jua v. The State (2010) 2 MJSC 152 at pages 177-178 Niki-Tobi, JSC stated the law to be as follows:
“The best evidence for the purposes of conviction is confession to the commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act.”
The extra-judicial statement of the appellant is at page 9-11 of the printed record and reads as follows:
“THE NIGERIA POLICE
THE STATEMENT OF ACCUSED
State CID Station Calabar Province
Name: Bassey David Udo Eyop
Nationality/Tribe: Nigerian/Ibibio Age: 55 years
Occupation: Farmer Religion: Christianity
Address: Mankor Oban – Akamkpa
I, Bassey David Udo Eyop (m) I am a native of Afaha Udoeyop in Ibesikpo Local Government Area of Akwa Ibom State. My parents had five sons and I am the first born. Two men have died remaining three of us including myself making the third person. My brothers names are Ubong David Udo Eyop who is residing at Netim while Emman David Udo Evop who is residing at Ikom. For a longtime I have not seen both of them, but as this incident happened Ubong David Udo Eyop visited me at Akamkpa Police Station. I left my village Afana Udo Eyop to Mankor village in Oban in 1994, because of the break down of my motorcycle and since I was a cyclist and also there was no money to repair my motorcycle. I paid my way to Mankor village on my own to see one of my relations one Affiong Jelimah who is now dead. She died in 1998. While in Mankor village I took to farming. I did not go there with any property except my bag of clothing. I have stayed in Mankor for the past 9 years. I know the deceased one Eno Udo Etukudoh in 1998. I approached the deceased in the same year that I want her to stay with me as a friend. Then after one year she now packed to my place and we lived as husband and wife but I did not married her official. I have stayed together with her for the past 5 years. She had no child for me, but she has miscarriage two times and I had to tell her to put a stop to it. We continue to live without any problem. The deceased Eno Udo Etukudoh hails from Ikot-Edong in Etinan and she has three children who are all girls born to a different man. And I have only one child a male by name Ntiense Bassey David.

On the 16th of April, 2003 I had a misunderstanding with the deceased Eno Udo Etukudoh over the preparation of pounded foofoo for my meal. She actually refused to prepare me food and we quarreled. She abused me and I abused her. Then on this 17th of April, 2003 the deceased Eno Udo Etukudoh had prepare and left to the farm very early in the morning I could not remember the exact time, but it might be around 8a.m. She went there alone. After a longtime I followed her behind to the farm, I used to passed through her farm to my own. So immediately she sited, she started quarrelling and abusing me, and my father. I also replied her, by abusing her. I also abused her with her family. As we continue quarrelling I walk closer to her, she raise the hoe she was holding and hitted me, and I turned the matchet I was holding and stabbed her on the left eye nearer to the forehead. I then used the matchet again to cut her neck. She then died and I dragged her to another spot even though she was still breathing. I then cut leaves and covered her. The spot was little far from the farm. I then came back home on that Thursday, the 17th of April, 2003. It was in the morning around 10 a.m. that I killed her. Then that same day the town crier came to me and told me that a different person in the village had summoned me before the village council. I was so disturbed in my mind because of what I did, I could not go, so, had to wait till about 5pm I then went to the village Chief one Obong Okon Isong, and told him that my wife went to farm and has not returned, but I did not tell him that I was the person who killed the deceased one Eno Udo Etukudoh “F”. The Chief Okon Isong “m” gave bell to be wrung in the village that evening and morning that the whole village should assemble in his palace. The following morning a search party was organized. I was the person who led the search party. As we arrived at the farm I told them, this is the farm, I was afraid to tell them that I killed her as I was afraid. Then the search party refused to touch the body on the pre that the police should be invited. The party returned and informed the chief who accompany me to Oban Police Station where an official report was made. The police moved with us immediately to the scene, and as we arrived at the scene photographs were taken and the police gave instruction that the body should be removed and taken home. A native embalmment was carried out on the body by an embalmer who lives at Ekong Village in Oban. On Monday 21/4/2003 the police at Oban send for the Chief of the village and as he was leaving he asked me to accompany him. Nothing happened on that date so we left bore. Then we went there again on Wednesday where we meet the O/C Oban Police Station who now advised us to come back on Thursday 24/4/2003 for on ward transferring of the case to Akampa Divisional Police Headquarters. On getting to Akampa with the village Chief Okon Obong, my statement was recorded and that of the Chief. I was detained in the cell. Then the police at Akampa now took me to Mankor and at Mankor we visit the scene in bush and also visited the house that the corpse was embalmed. We later returned back to Akampa that was on 25/4/2003. Then on 27/4/2003 being a Sunday I called the Inspector in charge of crime at Akampa Police station by name Inspr. Friday Gaal, who recorded my confessional statement. I was so disturbed and I was not forced as such I had to confessed. I showed the police the matchet I used in killing the woman Eno Udo Etukudo “F”. After killing the woman in the bush I brought back home the matchet, and I now showed the police the matchet in my house. I now handed over the matchet to the IPO in state CID who is now handling the matter. I used banana stem to clean the blood stain from the matchet, before I took it home. I am still saying that there was no serious problem between myself and the deceased, my late wife. After killing her, I later regretted my action. I did not disclose this information to the village head, nor the daughter of the deceased, until I later disclose this information to the Akampa Police first. And what I said to the police at Akampa Police station is the same I am still saying here at State CID, Calabar.
Bassey David, 30/04/2003.”

Against the background of the extra-judicial statement is his oral testimony in Court to wit:
“DW1: Sworn on Bible and state in English. My name is Bassey David Udo-Eyop. I live now in prison custody. Before now I live in Mankor, Oban town. I am a farmer. I remember 17th April, 2003 on that day, I went to the farm. When I returned from the farm, I saw my neighbour Henry Edet quarrelling with my wife, that my goat destroyed things in his house. I pleaded with him and I promised to compensate him. He said to me that his own wife insulted him that he will deal with her; I reported these words to the village head.
We were asked to come back the following day to the chief’s council. The following day at about 9am, I went to the village council. My wife went to the farm that day. I went alone. Henry Edet went out early in the morning. He did not come to the village council. Rather he came later in the evening. I was in the village council till 7 pm. I was instructed by the village head to go back until Henry comes back. I went back to my house until about 1pm when he used to come back from farm. At about 4pm I did not see my wife she did not return back from farm. I went to the farm to see what had happened. In the farm, I saw things scattered in the farm her things. I search for her, I did not see her. I shouted for her – did not hear anything. I got back to my house at about 6pm. I then reported to the village head Chief Okon Isong. He asked me to come back the next day since it was late. The next day, Obong Okon Isong summoned me. The village head promised me to do the necessary rites so that he will summon the Youth. I did that. The Youths were summoned through a town crier. I took the youths to my farm. A search was conducted. There the youths discovered the body of my wife who was killed and hid and covered with leaves. They took her body to the village. I was asked to report the matter to the police. My in-law advised me not to go, that he will go to make the report. Police received the report and the police came. The police were taken to the scene of the incident it is the police at Oban police station. We were asked to report back the next day with village head to the police station. We did so – I went there with the village head to the police station.

Police asked us to go and come back on a new date after 2 days so as to go to Akampa police with them (the police). We came to Akampa police station in company with the police at Oban.

I was detained at Akampa police station. After one week I was taken to State CID. That is all I can say. It was when I went to the police station that they detained me. Police did not tell me what I did before detaining me. I have not had any problem with my wife without any problem for over 12 years.

The chief in the village did not do anything concerning the report I made about Henry Edet. I did not make any statement to the police since I was still mourning my late wife. I did not tell the police anything. I see Exhibit “1” I have no knowledge of it. I did sit with the police and we had some discussions. I have no knowledge if it was reduced to writing. They merely asked me how long I had stayed with the deceased. I do not know if they wrote it down. Since I cannot read, I do not know about Exhibit “1”. I see Exhibit “1” again, I did not write it. I did not sign it.

I did not kill my wife as stated in Exhibit “1”. I did not tell police that I killed my wife. I am not happy that my wife was killed.”

The effect is that the appellant retracted his extrajudicial statement to the police while testifying in Court.
The correct approach to adopt when an extra-judicial confessional statement is retracted was set out by the Supreme Court of Nigeria in Edet Obosi V. The State (1965) NMLR 119 at 123 per Brett, JSC as follows:
“The credibility of evidence of any kind is a question for the jury or, where there is no jury for the judge as a judge of fact, and we think it would be wrong to elevate the words approved in Skye’s Case into a rule that a retracted confession can never be acted on unless it is corroborated in the sense in which that term is used in relation to the evidence of a witness. It does not appear that Skyes is regarded as an authority of particular value in England; the English and Empire Digest Replacement volume 14, 1956, does not show that it has been referred to in any subsequent case, and it is not mentioned in Archold, 35th edition, or in cross on Evidence or in the 3rd edition of Halsbury’s Laws of England. Phipson on Evidence 9th edition, page 266, mentions it as one of a number of authorities on the corroboration of confessions and Roscos’s Criminal Evidence 16th edition, page 38, merely refers to Phipson.
Our view of the correct approach is reinforced by that taken by the High Court of Australia in McKay v. The King (7) and in particular by the words of an acknowledged master of the common law, Dixon J., as he then was, at pages 8-10:
“The prisoner voluntarily made an express acknowledgement of the commission of the criminal acts for which he was afterwards indicted. The circumstances in which he made the confession were such as to make it improbable that he would own his guilt for any other reason than a consciousness that it was in fact undeniable. No cause, rational or irrational, for his making a false confession appeared and no reasonable hypothesis could be suggested which would account for his acknowledgement of guilt if it were untrue. On the other hand, several facts were established independently of the confessions which were more easily explained by the assumption that the criminal conduct with which the prisoner was charged took place than upon any other assumption… It is contended that at common law an uncorroborated confession could never suffice to support a conviction. But there is no such absolute rule. The judgment of Palles C.B. in 16 Cox C.C. 347 has disposed of the notion that a general rule of law existed that, without corroborative evidence, no confession by a prisoner could be enough to found a verdict of guilty. It is a mistake to attempt to lay down general propositions as to the sufficiency of forms or descriptions of evidence to establish an issue. Cases rarely, if ever, occur in which one description of evidence is isolated from all others. The ultimate standard of proof required by law in a criminal case is a sufficiency of evidence to satisfy reasonable men to the exclusion of any reasonable doubt. When a confession is relied upon in fulfillment of this requirement, it must almost necessarily happen that the circumstances in which it was made are proved, and these must go far to determine its actual probative force. It is true that in Victoria, as a result of Section 147 of the Evidence Act, 1928, the test of the voluntary character of confessional evidence are not the same as at common law, and such evidence is often admitted without affirmative proof that the confession was freely made. But even so, when it is put in evidence circumstances affecting the probability of the truth of the confession will almost invariably be proved. The very term confession illustrates the difficulty of laying down general propositions. For its meaning extends from the most solemn, spontaneous, express and detailed acknowledgments of the facts constituting a crime to casual admissions of some only of the specific facts involving guilt.
Again, the word “corroboration” needs explanation when it is used in relation, not to the testimony of a witness, but to a confession. In one case it may be used to describe evidence of facts which make it unlikely that a false confession would be made by the prisoner. In another, it may denote independent evidence tending to prove the occurrence of facts otherwise appearing from the confessional evidence alone. Probably it will be found in most cases less profitable to inquire whether there are or are not circumstances amounting to “corroboration” than to examine the considerations, if any, supplying hypothesis by which the making of a confession may be explained more or less reasonably consistently with innocence. But the circumstances of a given case may be such that it would be quite unsafe to act upon a confession, unless some particular piece of confirmatory evidence is true. It is, therefore, equally impossible to state as a general rule that always a conviction may be based upon an express voluntary confession of the commission of criminal acts uncorroborated. Moreover Courts of Criminal Appeal possess powers of quashing convictions on grounds which are not limited to mere error or law. Even if confessional evidence might appear sufficient to submit to a jury, yet a conviction would doubtless be quashed if it appeared that the jury had been allowed or encouraged to act upon views of it which are unsafe. It is conceivable that a direction to a jury that they might convict, although they were unable to find confirmatory evidence, or to accept it, might in some circumstances have this result.”
In Kanu v. Rex 14 WACA 30 per Causey J.A. at page 32-33 that:
“…Corroboration by an eye-witness cannot be obtained in all cases of murder. A voluntary confession of guilt if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone.”
In my humble view the circumstances affecting the probability of the truth of the confessional statement of the appellant beyond reasonable doubt were proved by the evidence adduced by the prosecution. See Rex v. Obong 12 WACA 139; Rex vs. Igwe (1960) 5 FSC 55; Yusufu v. State (1976) 6 SC 167.

I see no merit in this appeal. The conviction and sentence of the appellant by the learned trial Judge is upheld. The appeal is hereby dismissed.

Appearances

F.O. Onyebueke, Esq.,For Appellant

AND

Not RepresentedFor Respondent