BASSEY v. STATE (2021)

BASSEY v. STATE

(2021)LCN/14968(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/C/10C/2016

RATIO

EVIDENCE: WHETHER THE ATTESTATION OR CONFIRMATION OF THE STATEMENT MADE BY AN ACCUSED PERSON IS NOT A MATTER OF LAW

EVIDENCE: WHETHER THE COURT CAN CONVICT BASED ON A SINGLE CONFESSION

It remains to say that conviction for any crime may be based on a single confession if voluntarily made. See GIRA VS. THE STATE (1996) 4 SCNJ 94; EFFIONG VS. STATE (1998) 8 NWLR (Pt. 562) 362 SC; IHUEBEKA VS. STATE (2000) 4 SC (Pt. 1) 203; IDOWU VS. STATE (2000) 7 SC (Pt. 11) 50; ALARAPE VS. THE STATE (2000) 14 WRN 1 SC, PER MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: EFFECT OF MERE RETRACTION OF A CONFESSION

it is trite law that mere retraction of a confessional statement by an accused does not necessarily make it inadmissible. However, where an accused had retracted his earlier confession, it is desirable to have some evidence outside the confession which will make it probable that the confession was true. See NWAEBONYI VS. THE STATE (1994) 5 SCNJ 86; EDET EKPE VS. THE STATE (1994) 12 SCNJ 131; R. VS. EBONG (1997) 12 WACA 1. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

JAMES JAMES BASSEY APPELANT(S)

And

THE STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered by Honourable Justice I. E. Ukanna on 9th May, 2014.

The Appellant was charged along with one other on a two count Information for conspiracy to effect unlawful purpose; to wit: Child Stealing contrary to Section 556 (1) (F) and murder of Idara Ekop Udoh contrary to Section 326 (1) both of the Criminal Code, Cap. 38 vol. 2 Laws of Akwa Ibom State.

The Appellant and the other accused person pleaded not guilty to the charge.
The prosecution called five (5) witnesses and tendered Exhibits. The Appellant testified on oath, called no witness and did not tender any Exhibit.

The case of the prosecution was/is that the Appellant and the co-accused lured the deceased along with her child on 29th day of November, 2009 carried them on a motor cycle and then along Ibiaku Uruan (Ikpa Road) they killed the deceased, took her child and sold the baby for N115, 000.00 (One Hundred and Fifteen thousand Naira).

At the trial, the Appellant contested the voluntariness of the confessional statement made to the Police but after a trial within trial, the learned trial Judge delivered a Ruling and admitted the confessional Statement.

The learned trial Judge relied on the confessional statements of the Appellant and the co-accused alongside the evidence of PW2, PW3, PW4 and PW5 and convicted the Appellant and the co-accused as charged.

Dissatisfied with the conviction, the Appellant filed a Notice of Appeal containing three (3) grounds of Appeal in this Court.
Appellant’s brief of Argument was filed on 22nd January, 2016. It was settled by Chinwe Godwin-Omoaka (Mrs.).

Respondent’s brief of Argument was filed on 18th September, 2020. It was settled by Friday J. Itim, Esq. Assistant Director, Ministry of Justice, Uyo, Akwa Ibom State.

Learned counsel for the Appellant nominated two (2) issues for determination of the appeal. They are:
i. Whether the learned trial Judge was right to have admitted and relied on the Appellant’s alleged confessional statement Exhibits D, D1 and D2 in evidence despite the failure of the prosecution to prove the voluntariness of the statement? (Ground 1 of the Ground of Appeal).

Whether the learned trial Judge was right in holding that the prosecutor’s (sic) prosecution proved its case beyond reasonable doubt as required by law? (Ground 2 and 3 of the Grounds of Appeal).Learned counsel for the Respondent formulated a sole issue for the determination of the appeal. It is:
“Whether the prosecution proved its two count charge of Conspiracy and Murder against the Appellant beyond reasonable doubt, and the lower Court was right to convict him.”Appellant’s issue No. 1 challenged the decision of the lower Court in convicting the Appellant based on the alleged confessional statements of the Appellant despite “the failure of the prosecution to prove the voluntariness of the statement at the mini-trial.”

Learned counsel for the Appellant submitted that the trial Court placed heavy reliance on Exhibits D, D1, and D2 in convicting the Appellant of the alleged crime.

He submitted that Exhibit D, D1 and D2 were admitted in total disregard of the acceptable and established procedure for their proper admission. That the trial Court ought not to have admitted

these documents as Exhibits, the prosecution having failed to prove their voluntariness. He referred to the case of PRINCE EMEKA VS. THE STATE (2013) LPELR – 20867 (CA) to say that the burden is on the prosecution to prove the voluntariness of confessional statement in a trial within trial.

He submitted that the learned trial Judge arrived at the conclusion admitting the Appellant’s confessional statements on the basis that there was substantial compliance with the Judges rule without any concrete evidence adduced by the prosecution. That by the evidence of PW1, the Appellant was allegedly brought before one senior police officer ASP Christopher Idangson who read the contents of a confessional statement Form to the Appellant.

However, that the prosecution failed to produce this senior police officer at the trial within trial. The trial Court had no opportunity to hear and observe the demeanour of the senior police officer who ought to be the chief witness at the trial within trial.

Appellant’s counsel added that it was unsafe for the Court to have relied on a witness (PW1) whose testimony during the main trial resulted in the

Court calling for a trial within trial. He submitted that the trial Court ought to have looked for further evidence outside the testimony of PW1 to confirm the voluntariness of Exhibits D, D1 and D2.

Learned counsel for the Appellant submitted further that, the trial Court failed to consider the testimony of the Appellant at the trial within trial. That the Appellant stated how he was arrested, kept in a room without food for a week during which period, he was brought out and flogged. The following week:-
“I was taken out for my statement to be obtained. They also brought out the 1st accused to the room where our statement was to be obtained. I told them nothing happened. I was beaten by the police and asked to speak the truth. I was severely beaten. There were three (3) policemen in the room. I denied being in the village. I said I had left the village a long time ago. They told me if I did not tell the truth my finger will be cut off. That is all I have to say. I was given a statement to sign but I thumb printed.”

Appellant’s counsel submitted that the learned trial Judge was wrong to have based his decision on observing the demeanour of the Appellant rather than considering the evidence placed before him by the parties.

He submitted that Exhibits D, D1 and D2 do not constitute legal evidence before the trial Court and ought to have been expunged from the records and treated as not having been tendered or admitted. He referred to the case of IROLO VS. UKA [2002] 14 NWLR (pt. 786) 195 on the meaning of “miscarriage of justice” and concluded on issue No. 1 that the conduct of the trial Court in relying on Exhibits D, D1 and D2 to convict the Appellant occasioned a miscarriage of justice and urged us to resolve the issue in favour of the Appellant.

Learned counsel for the Respondent summarized the complaint of the Appellant on issue No.1 to be the failure of the prosecution to call the superior police officer who attested to the voluntariness of the confession. He referred to the cases of ADAMU VS. STATE (2016) ALL FWLR (PT. 826) 521 and UDO VS. STATE (2014) 54 NSCQR 831 and submitted that the prosecution in proving its case, is not required to call a crowd of witnesses if it can even with one witness prove its case beyond reasonable doubt and the Court is satisfied that the case is so proved.

He submitted that although, it is a desirable and commendable practice to attest to the voluntariness of a confessional statement of an accused person before a superior police officer, such practice is not a requirement of law.

It follows, said counsel that, if the attestation by the superior police officer is not demanded by law, failure to call a superior police officer to testify to the voluntariness of the confessional statements is not fatal where there exist other facts outside the confession to corroborate or confirm the confession to be true.

On this, Respondent’s counsel referred to the cases of ALARAPE VS. STATE (2001) 2 SCNJ 162; OGUN VS. STATE (2014) 10 ACLR 196.
He submitted that the learned trial Judge rightly noted that PW1 in the trial within trial, Inspector Anietie Imoh gave evidence of each step taken in recording the statement of the Appellant and how the Appellant was taken before a superior police officer to confirm the voluntariness of Exhibits D, D1 and D2.

Learned counsel for the Respondent referred to the case of SMART VS. STATE (2016) ALL FWLR (pt. 826) 548 and reminded us that Judges rules are not rules of law but merely rules of administrative practice, and that where as in the instant case, the accused person was cautioned before the statement is made, and the accused person signs or thumb impressed it, the statement and the accused are taken before a superior police officer, it would be right to say that learned trial Judge was satisfied that the police complied with the Judges rules in recording Exhibits D, D1 and D2.

He concluded that the learned trial Judge having believed the evidence of the prosecution witness in the trial within trial, rightly admitted the confessional statements of the Appellant marked Exhibits D, D1 and D2.

In relation to issue No. 1, learned counsel for the Appellant thought that in a trial within trial where the Investigating Police Officer witnessed that the accused person was further or in addition taken to a superior police officer to attest the statements made by the accused person, the superior police officer must necessarily be called to give evidence. This is not necessarily the position of the law as each case will depend on its own facts.

First, the attestation or confirmation of the statement made by an accused person is not a matter of law but only a rule of practice. See THE QUEEN VS. OMEREWERE SAPELE (1957) 2 FSC 24; R. VS. VOISIN (1981) 1 K. B. 531 at 539; SMART VS. STATE (2016) ALL FWLR (pt. 826) 548; ALARAPE VS. STATE (2001) 2 SCNJ 162; OGUN VS, STATE (2014) 10 ACLR 196.
Secondly, and as it happened in the instant case, the evidence of PW1 during the trial within trial as to the cautionary steps he took before taking the statements of the Appellant and how he took the statements and the Appellant to ASP Christopher Idangson inclusive of the steps taken on the Appellant’s statements in the presence and to the hearing of the Appellant and himself are all in the realm of direct evidence under the provision of Section 126 of the Evidence Act 2011.
For this reason, the argument of the learned counsel for the Appellant that the prosecution ought to call ASP Christopher Idangson during the trial within trial of the Appellant’s Exhibits D, D1 and D2 cannot be seriously countenanced.

Moreover, in the instant case the belief by the learned trial Judge of the evidence of PW1 the only witness for the prosecution during the trial within trial after his evaluation, and analysis of the evidence of the contesting parties would have been sufficient to justify the admissibility of Exhibits D, D1 and D2 as documents that are voluntarily made.
A careful reading of the Ruling of the learned trial Judge in the mini trial as contained on pages 125 – 129 of the Record of Appeal would show clearly that contrary to the suggestion of the learned counsel to the Appellant, the belief of the evidence of PW1 by the trial Judge was not just based on the demeanor of the Appellant but on
(i) The unchallenged and uncontradicted evidence of PW1
(ii) The inconsistencies in the case put forward and the evidence led by the Appellant in the mini trial.
The learned trial Judge was thus right when he held in the Ruling on the Appellant’s Confessional Statements at pages 128 – 129 of the Record of Appeal thus:
The evidence led by the prosecution indicates each of the steps taken by Insp. Anietie Imoh leading to how he finally brought the accused person before a superior police officer and the formalities that were observed before

that office.
From the totality of the prosecution evidence, it is evident that there was substantial compliance with Judges Rules in obtaining the statement sought to be put in as Exhibit from the accused persons. The first point to note about the evidence put forth by the accused persons is that the statement in question was not signed but thumb printed. The evidence put forward from the onset by the prosecution was that the accused signed. The document sought to be admitted does not bear a thumb print but rather a signature. Above all, throughout the evidence of the accused person in the witness box, I took cognizance of the demeanour and general composition of the accused person; it was evidence (sic) evident that he was all out to make a complete about turn from whatever he had previously said. I am unable to hold that he has raised the slighted doubt in my mind.
Arising from the foregoing, I hold that the statement of the accused person taken down by Insp. Anietie Imoh and combined (sic) confirmed before ASP Christopher Idangson as dated 26th December, 2009 was voluntarily made. It is consequently admitted alongside with the Confessional

Statement Form and the additional statement of the accused person dated 3rd January, 2010 are marked Exhibit D, D1 and D2 respectively.
Issue No. 1 is resolved against the Appellant.

On Issue No. 2, learned counsel for the Appellant reiterated the three essential ingredients the prosecution must prove before a conviction of murder that is:
(a) The deceased has died
(b) Death of the deceased was caused by the accused and
(b) The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

On this, Appellant’s counsel relied on the cases of OGBA VS. STATE (1992) 2 NWLR (Pt. 222) 164; NWAEZE VS. STATE (1996) 4 NWLR (Pt. 143) 375; GIRA VS. STATE (1996) 4 NWLR (Pt. 443) 375 and KADA VS. STATE (1991) 11/12 SC 1.

He also submitted that the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt. He referred to the provisions of Section 135(1) and (2), 139(3)(a) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Still on the burden and standard of proof, he also referred to the cases of NJOKU VS. STATE (2013) 2 NWLR (Pt. 1339) 548; AJAYI VS. STATE (2013) 9 NWLR (Pt. 1360) 589.
Learned counsel for the Appellant then submitted that the prosecution failed to prove beyond reasonable doubt the offence of murder allegedly committed by the Appellant. Thus, the learned trial Judge was wrong according to counsel to have convicted the Appellant based on inconclusive evidence which was primarily supported by placing reliance on Exhibits D, D1 and D2.

Learned counsel for the Appellant broke down the stated ingredients of murder and made submissions as follows:
a. Whether the deceased has died
On (a) above, Appellant’s counsel submitted that it is not certain that the deceased is dead. There is no evidence before this Court, which positively and conclusively attest to the death of Idara Ekop Udoh.

He submitted that the deceased was alleged to have been killed on 29th November, 2009. However, that on 30th December, 2009, exactly a month after the death of the deceased, PW4, Dr. Ime Usanga purportedly performed an autopsy on a decomposed corpse identified by one Gloria Ekop Udoh.

That in Exhibit A, the autopsy report, PW4 described the condition of the corpse:
Decomposed scalp with the face devoid of any flesh, a decomposed abdomen with the entrails hanging out. Decomposed upper and lower limbs. Fracture of the base of the skull.

Appellant’s counsel questioned – on what basis did Gloria Ekop Udoh arrive at the decision that the decomposed corpse was that of the deceased? That evidence he says is lacking. As such, there is shroud of mystery over the identity of the recovered corpse.

He submitted that proof of identity of the corpse of a deceased person is vital to the successful prosecution of the offence charged. He referred to the cases of PRINCEWILL VS. STATE (1994) 6 NWLR (Pt. 353) 703 @ 715; ENEWOH VS. STATE (1990) 4 NWLR (Pt. 145) 469 @ 480-481 and ISANG VS. STATE (1996) 9 NWLR (Pt. 473) 458 @ 468 and submitted that nothing positively and conclusively shows that the recovered corpse was that of the deceased.

b. Whether the death of the deceased was caused by the Appellant.
On (b), learned counsel for the Appellant submitted that the prosecution failed to prove

that the death of the deceased was caused by the Appellant. That the prosecution failed to link the Appellant to death of the deceased, as the prosecution failed to bring a witness who saw how and when the Appellant allegedly caused the death of the deceased. Rather, said counsel, the witnesses of the prosecution all testified about an alleged confession of a co-accused person (Okon Nsini Okon) and how he implicated the Appellant.

He reasoned that in proof of its case, the prosecution relied predominantly on circumstantial evidence, which in appropriate cases may form the basis for a conviction.

After referring to the case of NWEKE VS. STATE (2001) 4 NWLR (Pt. 704) 588 @ 600 on circumstantial evidence, Appellant’s counsel submitted that the testimony of those who reportedly said the Appellant and the co-accused person (Okon Nsini Okon) were seen carrying the deceased person on a bike is at best inadmissible hearsay.

He concluded on item (b) that the failure of the prosecution to link the Appellant directly to the alleged crime creates a doubt which must be resolved in favour of the Appellant. He referred to the cases of AKPAN VS. THE STATE

(1994) 9 NWLR (Pt. 368) 347; OGUNTOLU VS. STATE (1996) 2 NWLR (Pt. 432) 503; OGUNTOLA VS. STATE (2007) 12 NWLR (Pt. 1049) 617.

c. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
On (c), that is the third ingredient of the offence of murder, Appellant’s counsel submitted that the prosecution failed to establish the mens rea or guilty intent for the offence of murder for which the Appellant was charged.

He referred to the cases of NWOKEARU VS. STATE (2010) 15 NWLR (Pt. 1215) 1, 37 and AMAYO VS. STATE (2001) 18 NWLR (Pt. 745) 1, that even if it were the case that the Appellant caused the death of the deceased, the prosecution is in addition, required to show beyond doubt that the act or omission of the Appellant which caused the death of the deceased was intended by the Appellant and with knowledge that death or grievous bodily harm was its probable consequence.

He added, it is the duty of the prosecution to prove its case beyond reasonable doubt, failure of which creates a doubt which must be resolved in favour of the Appellant.

He referred to the cases of AMODU VS. STATE (2010) 2 NWLR (Pt. 1177) 47 @ 52; KALU VS. NIGERIAN ARMY (2010) 4 NWLR (Pt. 1185) 433 @ 440; KINGSLEY VS. STATE (2010) 6 NWLR (Pt. 1191) 393 @ 595.

He urged us to resolve Issue No. 2 in favour of the Appellant.
Learned counsel for the Respondent submitted that the Appellant and his co-accused in explaining how the deceased met her death, voluntarily confessed and gave details of how and why they killed the deceased, who was a sister in-law to Okon Nsini Okon, the co-accused (1st accused) in the trial Court and followed up their confessions with leading the Police to where they left the deceased in the bush to rot away.

Learned counsel for the Respondent referred to the case of OBOSI VS. STATE (2005) 4 ACLR 184-185 and submitted that the discovery of the corpse following the confession of the Appellant is a corroboration of the confession as being true.

He referred to the evidence of PW4 and the autopsy report, Exhibit A. He reminded us that contrary to the suggestion by the Appellant’s counsel, PW4, Dr. Ime Jacob Usanga stated inter alia that the corpse was identified to him by the sister of the deceased.

He submitted that it is begging the question to say that the identity of the corpse is in doubt. Moreover, that the Appellant who killed the deceased knew where he kept the corpse and took the Police to the exact spot, where the decomposing corpse was seen.

He concluded that Exhibits C and C1, D, D1 and D2 stated how the Appellant and his co-accused hit the deceased on the head with sticks until she collapsed and died on the spot. That the evidence of the medical doctor, PW4 disclosed that the corpse had a fracture at the base of the skull bone. And, that PW4 stated cause of death to be head injury leading to fractured skull which the deceased could not have inflicted on herself.
He urged us to resolve Issue No. 2 in favour of the Respondent.

First, I adopt my decision on Issue No. 1 for the resolution of Issue No. 2 in this appeal. Exhibits D, D1 and D2 were voluntarily made by the Appellant and were rightly admitted by the learned trial Judge.

Second, the Appellant’s confessional statement, exhibits D, D1, and D2 coupled with the evidence of PW3, PW4 and PW5 and the Autopsy Report Exhibit

‘A’ corroborated each other in fulfilling the three ingredients of the offence of murder in this case. It remains to say that conviction for any crime may be based on a single confession if voluntarily made. See GIRA VS. THE STATE (1996) 4 SCNJ 94; EFFIONG VS. STATE (1998) 8 NWLR (Pt. 562) 362 SC; IHUEBEKA VS. STATE (2000) 4 SC (Pt. 1) 203; IDOWU VS. STATE (2000) 7 SC (Pt. 11) 50; ALARAPE VS. THE STATE (2000) 14 WRN 1 SC, and it is trite law that mere retraction of a confessional statement by an accused does not necessarily make it inadmissible. However, where an accused had retracted his earlier confession, it is desirable to have some evidence outside the confession which will make it probable that the confession was true. See NWAEBONYI VS. THE STATE (1994) 5 SCNJ 86; EDET EKPE VS. THE STATE (1994) 12 SCNJ 131; R. VS. EBONG (1997) 12 WACA 1.

In the instant case, the prosecution has proved the guilt of the Appellant for the offences charged beyond reasonable doubt.
Issue No. 2 is resolved against the Appellant.

Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The judgment, conviction and sentence of the Appellant by the Honourable Justice I. E. Ukanna of the High Court of Akwa Ibom State delivered on 9th May, 2014 are hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: I was opportune to have read in draft the judgment just delivered by my Learned brother, Mojeed Adekunle Owoade, JCA.
I agree with the reasons and the conclusion thereof and thereby join my Lord in dismissing the appeal.
Appeal dismissed.

MOHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. The reasoning and conclusions therein on the two issues canvassed in the appeal are agreeable to me.

I too endorse the conclusion that this appeal lacks merit and should be dismissed.
Appeal dismissed.

Appearances:

CHINWE GODWIN-OMOAKA (Mrs.), ESQ, For Appellant(s)

FRIDAY J. ITIM, ESQ. (Assistant Director, Ministry of Justice, Uyo, Akwa Ibom State.)
For Respondent(s)