CHRISTOPHER EDONG v. THE STATE (2014)

CHRISTOPHER EDONG v. THE STATE

(2014)LCN/7526(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/AK/19C/2013

RATIO

EVIDENCE: CONFESSION OF GUILT; THE WEIGHT OF A VOLUNTARY CONFESSION OF GUILT

In Phillip Kanu & Anor v. The King (1952) 14 WACA 30 Cousey J.A said at pgs. 32- 33 that: “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 criminal act has been committed by someone” per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: INADMISSIBLE EVIDENCE; THE CONDITIONS WHERE THE ADMISSION OF INADMISSIBLE EVIDENCE WILL NOT GROUND THE REVERSAL OF ANY DECISION

In other words, the wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision:- Provided the following conditions are fulfilled

(a) if it appears to the Court of Appeal that the evidence so admitted cannot reasonably be held to have affected the decision, and that
(b) Such decision would have been the same had such evidence not been admitted.

Section 227 Evidence Act Cap. 112 LFN 1990. R. v Asuquo Edem & Ors (1943) 9 WACA 25; Timitimi & Ors v Chief Amabebe & Ors (1953) 14 WACA 374; R. v Akpan Udo Essien (1939) 5 WACA 70; R. v Adegbola Thomas (1945) 11 WACA 12; James Popoola v Commissioner of Police (1964) NMLR 1. per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: HEARSAY EVIDENCE; THE DISTINCTION BETWEEN STATEMENTS WHICH MAY OR MAY NOT BE HEARSAY

This distinction between statements which may or may not be hearsay has been recognized a long time from the case law and it is well stated by the Judicial Committee of the Privy Council in Subramaniam v Public Prosecutor (1956) 1 WLR 965 at 969 thus:

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is not hearsay and is inadmissible when it is proposed to establish the evidence, not the truth of the statement, but the fact that it was made”.

From this two points emerge clearly:

(1) When A said something not in the present proceeding, B cannot give evidence of it in proof of the allegation contained in the statement, but he can repeat what A has said to establish the fact that A in fact made the statement, but (2) B can repeat what A has said to establish the fact that A in fact made the statement. per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. Effiong V State (1998) 8 NWLR (Pt.562) 362; Inuebeka v State (2000) 4 SC (Pt.1) 203; Idowu V State (2000) 7 SC (Pt.11) 50; Alarape V The State (2001) 14 WRN 1. per. MOJEED ADEKUNLE OWOADE, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMAJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

CHRISTOPHER EDONGAppellant(s)

AND

THE STATERespondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, delivered on 27th day of March 2012 by Honourable Justice T.O. Osoba sitting at Akure.

The Appellant was charged by information with the offence of murder contrary to section 316(1) and punishable under section 319(1) of the Criminal Code, Cap. 30 Vol. 11, Laws of Ondo State of Nigeria 1978.

The case for the prosecution was that the deceased one Emmanuel Odey was a friend of the Appellant. They are both friends from Cross River State and are engaged in farming in Abusoro via Ita-Ogbolu, Ondo State.

On or about the 17th day of December, 2007, the police received a complaint from one Christopher Edong (the Appellant that one Emmanuel Odey had been killed by Armed Robbers. However, one Michael Emeka a relative of the deceased person reported to the police that it was the same Christopher Edong who shot and killed the deceased and not Armed Robbers.

The police started their investigation and in the main time arrested the Appellant who later confessed that he shot the deceased person in the belief that he was an Armed Robber that came to rob them in their camp.

on the other hand, the Appellant said that about five (5) armed robbers invaded their Abusoro-Itaogbolu camp on the night of the incident and waylaid the deceased. In seeing what happened, the Appellant ran into the bush and as his deceased brother was shouting his name and asking which path or route of the bush he took, he was shot by the robbers. The Appellant was in the bush till the morning when on hearing of the death of the deceased he went to the police station to report the incident.

The prosecution called two (2) witnesses and tendered five (5) exhibits, the Appellant gave evidence in his defence but did not call any witness.

On the 27th day of March, 2012 the learned trial judge delivered judgment in the case wherein he found the Appellant guilty of murder and convicted him accordingly.

Dissatisfied with the conviction and sentence, the Appellant at first filed a Notice of Appeal on 16/4/2012 but later filed and relied on an Amended Notice of Appeal containing seven (7) grounds of appeal.

Learned Counsel for the Appellant filed a brief of argument dated 5/6/2012 on 7-6-2012 but was deemed filed on 7/5/2014.

Learned Counsel for the Respondent filed a brief of argument dated 30/5/2014 and filed on the same day.

Learned Counsel for the Appellant nominated five (5) issues for determination. They are:

1. Whether the trial court was right by relying on Exhibits B, B1 and E to convict the Appellant of the offence of murder (Grounds 2 and 3 of the Amended Notice of Appeal).

2. Whether any confession alleged by the prosecution to exist in Exhibit B1 or Exhibit B, B1 and E passed relevant truth tests laid down by case law to warrant the trial court’s reliance thereon to convict the Appellant (Ground 4 of the Amended Notice of Appeal).

3. Whether in view of the fact that the wives of the deceased Emmanuel Odey were not called as witnesses the trial court was right in admitting what it called their statements in evidence and relying on the same (Ground 6 of the Amended Notice of Appeal).

4. whether having regard to the evidence led at the trial, the prosecution proved the guilt of the Appellant beyond reasonable doubt or at all (Grounds 1 and 5 of the Amended Notice of Appeal).

5. Whether the trial court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus and what is the effect of this (Ground 7 of the Amended Notice of Appeal).

Learned counsel for the Respondent formulated only three (3) issues for determination as follows:

1. Whether the learned trial court dispassionately considered the evidence before it, and the prosecution able to prove the guilt of the Appellant beyond reasonable doubt.

2. Whether the trial court was right in relying on Exhibits B, B1 and E to convict the Appellant.

3. Whether the trial court was right in sentencing the Appellant without giving him right to Allocutus.

On issue 1 Learned Counsel for the appellant reproduced the Appellant’s extra judicial statements Exhibits B, B1 and E. He submitted that none of the statements is a confession to the killing of the deceased Emmanuel Odey. He referred to the provision of Section 28 of the Evidence Act and also to the case of Nsofor v. The State (2004) 18 NWLR (Pt.905) 292 at 308.

Specifically, Counsel said, whereas Exhibits B and E are outright denial of being responsible for the death of the deceased in terms of absence of the actual act. (actus reus) and the mental element (mens rea) both of which must be present for the offence of murder to be rightly said to have been committed, Exhibit B1 which the police also claimed the Appellant purportedly made in “addition” to Exhibit B, admitted the actus reus but out rightly denied the mens rea as it attributed the deceased’s death to a mistake. He submitted that there was no confession in any of Exhibits B, B1 and E and that it therefore amounted to a fatal misdirection on the part of the learned trial judge to have treated any or all of them as constituting a confession.

Learned counsel submitted further that assuming without conceding that any of Exhibit B, B1 and E constitutes a confessional statement, the learned trial judge still fell into grave error in relying on any or all of them to convict the Appellant.

He submitted that Exhibits B and E materially contradicted the contents of Exhibit B1 to such extent that whereas Exhibit B1 purports to be a confession to commission of the offence charged albeit as a result of mistake. Exhibits B and E are a complete denial of the offence charged.

Therefore, said Counsel, if Exhibits B and E were not confessional statements and their contents are inconsistent with or contradicted the contents of Exhibit B1, the trial court was in error to have giving probative value to exhibit B1 or accepting the contents of Exhibit B, B1 and E as all constituting confessional statements. The trial judge in circumstance like this, said counsel, where the contents of Exhibits B and E on the one hand and Exhibit B1 on the other cannot concurrently be true is to adopt an approach most favourable to the Appellant.

On this, Counsel referred to the case of Sam v. The State (1991) 2 NWLR (Pt.176) 699 at 707 – 708, which approach according to counsel accords with the provision of section 36(5) of the constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused person innocent until his guilt is proved. Counsel submitted further that even if the trial court was right in adopting the content of Exhibit B1 as a confession of guilt by the Appellant, the excuse of mistake would have availed the Appellant.

This he said is because:

(a) There was no evidence to prove the allegation that the Appellant was stealing the deceased’s money and shot him when challenged since the wives of the deceased whom the prosecution said had that evidence never testified.

(b) The police failed to investigate and is thereby deemed to have admitted what the Appellant said about armed robbery attack and recent robberies in their community. In circumstances such as these, it was reasonable for any resident of the area to had run into the bush as the Appellant did, when the Robbers came calling again.

In other words, said counsel Exhibit B1 could only sustain a charge of manslaughter and not murder as preferred by the prosecution.

Learned Counsel for the Respondent submitted in respect of Appellant’s Issue 1 that the Appellant’s confessional statement was admitted as Exhibit B1. After reproducing the said Exhibit B1, Counsel submitted that Exhibit B1 has admitted all the essential ingredients of the offence of murder and shows an unequivocal, direct and positive involvement of the Appellant in the crime. Also, that it is well settled that the court can safely convict on the confessional statement of an accused person.

Counsel submitted further that the said Exhibit B1 and the evidence of PW1 show that the act of the Appellant caused the death of the deceased with the intention to cause death or grievous bodily harm.

Learned Counsel for the Appellant has raised two points on issue No. 1. The first is that none of the three (3) extra judicial statements by the Appellant qualify as a confessional statement. The second is that even if of the three, Exhibit B1 is so regarded as a confessional statement, it raises the defence of mistake which should exculpate or mitigate the culpability of the Appellant.

With respect to the Learned Counsel to the Appellant, none of the above points is true. First, Exhibit B1 is clearly an admission of guilt and therefore a confessional statement. It reads:

“I Christopher Edomy ‘M’ in addition to the statement I made to the police today 2/12/2007 wish to state that I am the person that killed the deceased Emmanuel Odey ‘M’ it was when I was coming from hunting expedition and on my arrival at the Abusoro camp, I saw him outside around 12.00 a.m that night and I never knew he was the one. I thought it was one of the armed robbers terming the community. This promoted me to shot him with the gun I was holding. It was after the gun shot that he was mentioning my name. Armed Robber had robbed in the previous weeks at Manugi camp and Aba balewa came when I in the neighbourhood.

(Sgd) Christoper Edong”.

By virtue of Section 27(1) of the Evidence Act 112 LFN 1990, “A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime”.

Usually “admission” in relation to a crime is used to denote the admission of some fact relevant to the crime; whilst “confession” is used to denote the admission of guilt. However, the definition of confession seems wide enough to include an incriminating admission failing short of a full confession.

See Edet Obosi v The State (1965) NMLR 119 at 122; Commissioners of Customs & Excise v. Harz and Power (1967) A.C. 760 at 817 (1976) 1 All ER 177 at 182, (1967) 61 Cr. APP.R 123 at 155; Mufutau Balogun & Ors V Attorney General of the Federation (1994) 5 NWLR (Pt. 345) 442; Nsofor V The State (2004) 18 NWLR (Pt.905) 292 at 308.

In the instant case, Exhibits B, B1 and E are all extra judicial statements by the Appellant but clearly Exhibit B1 qualifies as a confessional statement under the provision of Section 27(1) of the Evidence Act.

Again, still in relation to Issue No. 1, a confessional statement which admitted the killing of A instead of B on the ground that the Appellant thought or imagined that A was an armed robber has not properly provided an excuse for the defence of mistake of fact and contrary to the argument of the Learned counsel for the Appellant the guilt admission of guilt has satisfied both the actus reus and the mens rea requirements of the offence of murder under Section 316 of the Criminal Code. This is because the killing of A instead of B is still murder except such a killing is otherwise excused. Meanwhile as there is no legal excuse generally speaking for the killing of a thief or armed robber in the absence of a defence of self-defence, the Appellant in the instant case could not be availed of the defence of mistake of fact. Indeed, the Appellant’s Exhibit B1 did not in fact raise a defence of mistake of fact under the provision of section 25 of the Criminal Code.

Issue No. 1 is resolved against the Appellant.

On Issue 2, Learned Counsel for the Appellant submitted that in relying on Exhibit B1 alongside with Exhibits B and E, the learned trial judge said at pages 37 – 38 of the record as follows:

“From the evidence before me, the accused confessed that he owns a double barrel gun, that infact, he shot the accused (sic) in the night because he thought that the deceased was an armed robber, he confirmed that the money fund (sic) on him by the police was the contribution of the deceased which he collected on behalf of the deceased because the deceased was not at the meeting to collect the money himself. Although the accused person made fruitless effort to deny his statement. The position of the law is that retraction of a voluntary statement by the maker will not render it inadmissible against him. It may having regard to the circumstances of the case go down to affect the weight to be attached to such retraction. It is my view that no such circumstance exist in this case. See R. v Itule (1961) 1 NLR 462.

In Phillip Kanu & Anor v. The King (1952) 14 WACA 30 Cousey J.A said at pgs. 32- 33 that:

“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 criminal act has been committed by someone”

Applying this test to this case, the confession of the accused person in Exhibit B, B1 and E shows that there are other facts apart from his confession, to show that the confession is true. These are:

(1) That the accused and the deceased were friends and neighbors.
(2) That they were involved in monthly monetary contribution.
(3) That the deceased collected his contribution.
(4) That the accused was challenged in the night by the deceased house where the deceased kept his money,
(5) That the accused shot the deceased with a dane gun.
(6) That the contribution money was recovered from the accused.

The situation of this case is that the evidence before this court fixes the accused to the crime alleged. I have no doubt that he committed the offence as alleged. The denial in court is a concoction an afterthought and a farce. I disbelief him and I reject his evidence”.

Learned Counsel submitted that it is clear from the foregoing that the trial court treated Exhibits B, B1 and E as confessional statements. The court, said Counsel ought not rely on to the Appellant’s confessional statement without first testing the truth of the statement and without considering why the evidence led by the Appellant at the trial is different from the extra-judicial statement made or allegedly made or whether the accused proffered any explanation as to why his evidence in court as a witness is different from the contents of the said confessional statements allegedly made to the police. He referred to the cases of Onochie & Ors. V. The Republic (1966) 4 NMLR 307. Re. Osakwe (1994) 2 NWLR (Pt.326) 273 at 300; Philip Kanu Vs. The King (1952) 14 WACA 30; Edamine v. The State (1996) 3 NWLR (Pt.438) 530 at 541 and Kareem v F.R.N. (No. 2) (2002) 8 NWLR (Pt.770) 664 at 682.

Learned Counsel submitted further that notwithstanding that the trial court referred to the submissions of Counsel to the prosecution on the application of the Rule in R. v Sykes (1913) 8 CR. APP. R. 233, it failed to apply the said Rule to the facts of this case before relying on Exhibits B, B1 and E to convict the Appellant. That, it is clear from the pronouncements of the learned trial judge on pages 37 – 38 of the record that what the trial court regarded as independent proof of facts and listed as (1) – (6) were facts it still derived from Exhibits B, B1 and E. They were from within the contents of those Exhibits and not outside them. This, he said, is wrong. That whether it is the Rule in R. v Sykes (supra) or the independent proof factor in Kanu V The King (supra) that is applied, the corroborative facts required to lend credence or otherwise to those Exhibits must be from outside the exhibits.

He submitted that even if those facts were outside Exhibits B, B1 and E (which is not conceded) and aside the fact that some of them do not arise from the legally admissible evidence in this case, they are (put together) not enough to ground the conviction of the Appellant.

Also, that there is no evidence led at the trial or admitted thereat to show that the share of contribution collected by the deceased was the one found upon a search of the Appellant’s house as narrated by PW2 at page 10 of the record. Neither the deceased’s wives nor relations testified at the trial. That, even the extra-judicial statements of the said wives were never validly admitted as Exhibits.

Counsel submitted that the only evidence which was available at the trial and which the trial court was bound to accept is the aspect of Exhibit B where the appellant was said to have stated as follows:

“On the 10th December 2007 four of our member, that engaged in contribution shared N8,500.00 each which include myself the deceased. On (sic) Lawrence Adie on and one other person I was the one that assisted Lawrence Adie to collect his money because he was not in the meeting that day I kept my own share with my wife and it was Lawrence share that was recovered from me by the police during they (sic) search at my home”.

From the foregoing piece of evidence, said Counsel, it was Lawrence Adie’s money that was found in the Appellant’s house, not the deceased’s.

Counsel argued that this is an alibi which the police had the opportunity and in fact a duty to investigate if there existed the said Lawrence Adie and whether his money was with the Appellant. He referred to the cases of Ozulunye v. The State (1981) 1 N.C.R 38 at 50 – 51; Salami v The State (1988) 3 NWLR (Pt. 85) 670 at 690; Ikemson v The State (1989) 3 NWLR (Pt.110) 455 at 479.

Also, said Counsel, the police did not investigate the claims of the Appellant that armed robbers attacked them.

He referred to the cases of Agbanyi v The State (1995) 1 NWLR (Pt.369) 1 at 27; Onuchukwu v The State (1998) 4 NWLR (Pt.547) 576 at 592.

He submitted that since the only evidence explaining the source or ownership of the money found in the Appellant’s house is that same belonged to Lawrence Adie, the finding of the trial court that the said money belong to the deceased, which finding led the trial court to conclude that the Appellant killed the deceased while trying to steal and or keep the money is absolutely perverse and ought to be set aside.

He referred to Wahabi Olanrewaju v. Governor of Oyo State (1992) 11/12 SCNJ 105 – 106, (1992) 9 NWLR (Pt.265) 335.

Also perverse, said Counsel is the finding by the trial court that “the accused was challenged in the night by the deceased house where the deceased kept his money” as there was no such evidence except in the statements purportedly made by the wives of the deceased who were never adopted by them or admitted as exhibits. The statements were therefore not legally admissible in evidence.

Furthermore, said Counsel, at page 37 of the Record, the trial court said the Appellant confessed “that he owns a double barrel gun, that infact, he shot the accused in the night because he thought that the deceased was an armed robber……….”

But that what the Appellant said in Exhibits B and E was that.”…………….I love (sic) have a single barrel gun which I used for hunting. The gun was giving to me by one Adekunle at Iju and I always keep the gun in my room at Abusoro came (sic) camp via Ita-Ogbolu…………I am also a hunter but my gun has spoilt. But there is one gun I am using now and it belong to one Adekunle ‘M’ in from Iju…….”.

It was this same single barrel gun, said Counsel, that was admitted in evidence as Exhibit C.

Learned Counsel summarized on issue 2 that in effect there was nothing outside any of Exhibits B, B1 and E to show that the Appellant killed the deceased or to show that:

(i) The content of Exhibit B1 was true.
(ii) The content of Exhibit B1 was corroborated,
(iii) As far as the facts contained in Exhibit B1 can be tested, they are true;
(iv) The Appellant had opportunity of committing the offence alleged against him.
(v) The Appellant’s alleged confession in Exhibit B1 was possible.
(vi) The purported confession in Exhibit B is consistent with other facts which have been ascertained or proved.

Learned counsel for the Respondent submitted on issue 2 that it is trite that once a court of law has ruled that a confessional statement is free and voluntary and has passed the relevant true tests for its admissibility, there is nothing which prevents the court from safely convicting an accused person forthwith.

He referred to the case of Kaza v State (2008) 7 NWLR (Pt.1085) 125 at 166. He submitted that it is noteworthy that in the instant case, there is no form of contrary evidence which made the confessional statement admitted as Exhibit B1 inadmissible. That once a confession of guilt is shown to have been made freely and voluntarily, be it judicial or extra judicial, it is direct positive and properly established, it constitutes proof of guilt and it is enough to sustain a conviction so long as the court is satisfied as to its truth.

He referred to the case of Ismail V State (2008) 15 NWLR (Pt.1111) 593 at 621.
Learned Counsel further stated that for a confession to be relevant and admissible in evidence, it must prove the fact that constitutes one or all the elements of the crime to be proved and or identify the person(s) who committed the offence.

He referred to the case of Igbinovia v State (1981) 2 SC 5 at 17 – 18.

He submitted that from the above decision, almost all the elements of murder can be proved from the confessional statement and the circumstances of the case. That, in considering the elements of murder vis-a-vis the confessional statement of the Appellant, it is established that the deceased Emmanuel Odey died through the act of the Appellant and that the Appellant had the intent to kill the deceased.

Counsel submitted that the conviction of an accused person can be based solely on his/her confessional statement provided that such confessional statement is unequivocal, positive and direct as in the instant case. However, that courts of law sometimes seek for some form of corroborative evidence outside the confession no matter how slight or probable, circumstances to warrant the establishment of the truth and correctness of the said confessional statement. The rationale behind the stance of courts, he said, is based on the fact that courts are not generally disposed to swallowing hook, line and sinker confessional statements of accused person without testing their veracity.

He referred to the case of Lasisi v State (2011) All FWLR (Pt.601) 1310 at 1440 – 1441.

Learned Counsel submitted that the test to be applied for the evaluation of a confessional statement before the court can act on it can be found in the case of Johnbull Ekwure v State (1999) 13 NWLR (Pt.635) 456 at 470,and they are:

(i) Is there anything outside the confessional statement to show it is true?

(ii) Does the accused have opportunity to commit the alleged offence?

(iii) Is the accused confession consistent with facts which have been ascertained and proved?

(iv) Is the confessional statement corroborated?

Counsel submitted that in the instant case, there exist ample corroborative evidence for the confessional statement of the Appellant: that he is the custodian of the gun with which the deceased was shot and also there was no report of any armed robbery on the day of the incident.

The grouse of the Appellant in relation to issue No. 2 could be categorized into three. First, that the learned trial judge referred to Exhibits B, B1 and E as the confessional statement of the Appellant. Second, that in finding corroboration for the confession under the Rule in R. v Sykes (supra) the learned trial judge still relied on the contents of the Appellant’s extra-judicial statements Exhibits B and E. Thirdly, that some of the facts on which the learned trial judge based his corroborative evidence for the confessional statement Exhibit B1 were not as stated in Exhibits B or E and/or were in the nature of inadmissible hearsay evidence. The summary or the totality of the Appellant’s counsel submission on this issue therefore, is that the truth of the Appellant’s confessional statement Exhibit B1 was not duly tested.

In my opinion, the question of the learned trial judge referring to the three extra-judicial statements of the Appellant Exhibits B, B1 and E as confessional statement is a non issue when it is clear that Exhibit B1 is the only extra-judicial statement of the Appellant in the nature of an admission from which an inference of guilt could be drawn. Also, there is nothing wrong in drawing corroborative facts from other pieces of relevant and admissible extra-judicial statements such as Exhibits B and E in fulfilling the requirements of testing the truth of a confessional statement under the Rule in R. v Sykes (supra).

I noticed in agreement with the Learned Counsel for the Respondent item (4) of the items of corroborative facts of the Appellant’s confessional statement to wit.

(4) That the accused was challenged in the night by the deceased house where the deceased kept his money”

Could not be found in either Exhibits B or E nor part of the admissible evidence in the trial proceedings.

Obviously, however in the instant case, there would still be sufficient evidence to corroborate the Appellant’s confessional statement Exhibit B1 even if the above piece of inadmissible evidence were expunged. This is because the deciding factor is whether the wrongful admission of the inadmissible evidence or wrongful rejection of admissible evidence in each case occasioned a substantial miscarriage of justice.

In other words, the wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision:-

Provided the following conditions are fulfilled

In the instant case there remains sufficient evidence outside of the snippets of inadmissible evidence referred to by the learned trial judge to establish the truth of the Appellant’s confessional statement Exhibit B1 in accordance with the Rules laid down in R. V Sykes (supra).
In the instant case, the surrounding circumstances of the case makes the confessional statement of the Appellant possible and also consistent with other facts that were ascertained and proved at the trial.

Firstly, there was no objection as to the admissibility of the confessional statement and there was no allegation of force or undue influence when the statement was made.

Secondly, the evidence of PW1 and the fact that the single barrel dane gun Exhibit C which was used to kill the deceased was recovered from the accused are facts consistent with the truth of Exhibit B1.

Furthermore, all the places and things referred in Exhibit B1 were found to be real and true, the fact that the deceased was living close to the house of the Appellant in their Abusoro camp. The evidence that the deceased was found dead by the Appellant, the fact that the appellant was the first person who reported to the police that the deceased was killed from gun shot. The fact that they were friends and neighbors. The fact that they were involved in monthly contribution and perhaps also the fact that no armed robbery incident was reported to the police on the day of the incident.

The above are all circumstances which independently confirm that the Exhibit B1 is probable and passed the six-way test as to the truth of a confessional statement as established in the cases of R. V Sykes (1913) 8 CR. APP. R.233; R. V Phillip Kanu (1952) 14 WACA 30; Onochie & Ors v The Republic (1966) 4 NMLR 307; Lasisi V State (2011) All FWLR (Pt.601) 1310 at 1440; John Bull Ekwure V State (1999) 13 NWLR (Pt.635) 456 at 470 – 471.

Accordingly, Issue No. 2 is resolved against the Appellant.

On issue No. 3, Learned counsel for the Appellant submitted that at no time did the prosecution seek to tender any statement made by the wives of the deceased. The said wives were also not called as witnesses in this case. And, no statement from any of the wives was front-loaded with the proof of evidence. However, that during address the Counsel to the accused (now Appellant) urged the trial court to treat as hearsay the evidence of PW2 at pages 10 – 11 of the record, where PW2 was narrating what the wives of the deceased, who were not called as witnesses purportedly told his investigating team as account of what purportedly transpired between the Appellant and the deceased and how the Appellant allegedly killed the deceased. That, according to PW2 at pages 18 – 19 of the record the wives of the deceased narrated how their husband caught the Appellant stealing the contribution money collected by their husband and in the process, the deceased shot and killed the husband. That in his final written submission, Counsel for the prosecution argued that there is a distinction between where evidence of another is told by a witness for purpose of the truth thereof and when the purpose for narrating the story of another is only to establish that such narration was made and not the truth thereof.

That at pages 38 – 39 of the Record the learned trial judge held on the issue as follows:

“As regards the evidence of the wives of the deceased. It was held in Subramaniam v Public Prosecutor (1965) 1 WLR 965 at 969 that:

“Evidence of a statement made to a witness by person who is not himself called as a witness may or may not be hearsay. It is not hearsay and is admissible when it is proposed to establish the evidence, not the truth of the statement, but the fact that it was made.”

From the circumstances of this case I hold that the statement of the wives of the deceased to the police is receivable in evidence and I hereby admit it. I have no hesitation whatsoever to hold that the accused shot the charge, he was motivated by greed and he acted as a Judas, I find him guilty as charged and I also convict him accordingly”.

Learned Counsel submitted that contrary to the claim in the introductory sentence of the foregoing pronouncement of the trial judge, the wives of the deceased had no evidence in the case. That, even if they had put down any extra-judicial statements, which is not conceded, their inability or failure to testify rendered their statement hearsay and inadmissible as they could not be subjected to cross-examination thereon.

Counsel submitted that by going ahead to hold that “From the circumstances of this case I hold that the statement of the wives of the deceased to the police is receivable in evidence and I hereby admit it” when no party sought the admission of any such statement of any such statement by the wives of the deceased and when no such statement was proved to exist, the trial court granted a relief not sought to the prosecution, speculated as to the existence of the statement and made a case for the prosecution, which case the prosecution did not make for itself. Counsel submitted that the law is settled that a court cannot grant a relief not sought, that it is not within the province of a court of law to speculate on facts before it and that no court is allowed to make for a party a case which that party failed to make for himself.

He referred to the cases of Ekpeyong v Nyong (1975) 9 NSCC 28 at 32 – 33; Abia State & Ors V A.G. Federation (2006) 9 M.J.S.C 1 at 78; VEEPEE Ind. Ltd. V Cocoa Ind. Ltd (2008) 13 NWLR (Pt.1105) 486 at 512; Igabele V The State (2006) 6 NWLR (Pt.990) 65 at 135; Achibong V Ita (2004).

Learned Counsel for the Appellant submitted that the PW2 at page 11 of the record narrated the involvement of the wives of the deceased as follows:

“During investigation accused person admitted that he came to the camp for farming but along the line the dane gun was handed over to him by one Adekunle for hunting. The accused later confessed but said he thought the deceased was a robber so he shot him. It was at the station when accused was confronted by the wives of the deceased that they saw him and even assisted to chase him that he confessed”. (Underlining emphasis supplied by me).

Counsel submitted that the purpose of the narration by the PW2 was therefore not to just show that the wives told him and his team what he said they told him but to establish the truth thereof. He submitted that the trial court was therefore wrong in holding that the prosecution merely sought to show that the wives told PW2 what he alleged they told him.

The reference to the statement of the wives of the deceased by the learned trial judge as been admissible or receivable was indeed no more than the alleged hearsay evidence of what the wives of the deceased stated to PW2.

At page 39 of the Record after the learned trial judge had in fact concluded the guilt of the Appellant by virtue of the fact that the confessional statement Exhibit B1 was probable having been tested in the light of surrounding circumstances, the learned trial judge then gave an answer to the arguments of both Counsel on the admissibility of statements made by the wives of the deceased which was narrated by PW2 even when the wives of the deceased were not called as witnesses.

The learned trial judge concluded his answer at page 39 thus:

“From the circumstances of this case I hold that the statement of the wives of the deceased to the police is receivable in evidence and I hereby admit it”.

The proper con of the above conclusion of the learned trial judge could be seen in the evidence of PW2 at pages 10 – 11 of the record.

In the course of his examination in chief PW2 witnessed thus:

“Later wives of the deceased said that as they slept in the night her husband went out to urinate, heard noise and challenged the accused for being at back of his house where he kept his contribution. There was argument and accused shot deceased, and ran away. Later the next day he came to the station to report that someone shot the deceased”.

Later at page 11, the same PW2 continued his narration and added:

“…………The accused later confessed but said he thought the deceased was a robber so he shot him. It was at the station when accused was confronted by wives of deceased that they saw him and even assisted to chase him that he confessed”.

Now, the first portion of PW2’s evidence at page 10 of the record is clearly hearsay. This is because it is the evidence of a person or persons not called to give evidence (i.e. wives of the deceased) to prove the truth of an/the assertion. The core assertion in the instant case is the killing of the deceased, therefore any evidence tending to show that truth or the assertion of the killing must necessarily be direct evidence. Evidence of a person not called as a witness to prove the truth of an assertion is hearsay. It is irrelevant and inadmissible.

On the other hand, the piece of evidence by the same PW2 on page 11 of the record and on which the learned Counsel for the Appellant pointed out for complaint is not hearsay evidence. This is because the second piece of evidence was indeed to demonstrate the fact that the statements were made but clearly not to prove the truth of an assertion.

From this two points emerge clearly:

In the instant case, the learned trial judge was not entirely wrong to have accepted that in the circumstances of the case, the statement made by the wives of the deceased was not hearsay.

In any event, as I stated in relation to Issue No. 2, the conviction of the Appellant in the instant case was solely based on the tested confession of the Appellant Exhibit B1 and therefore there could be no issue of any miscarriage of justice on the possibility of the wrongful admission of inadmissible evidence.

Issue No. 3 is resolved against the Appellant.

On issue 4, Learned Counsel for the Appellant adopted his arguments in relation to issues Nos. 1, 2 and 3 and urged us to hold on the strength of the submissions under those issues that prosecution failed to prove its case against the Appellant beyond reasonable doubt or at all.

Counsel summarized the necessary ingredients for the offence of murder by reference to the cases of Olubeka v The State (2011) 4 NWLR (Pt.1233) 356 at 378 – 379; Ogba v The State (1992) 2 NWLR (Pt. 222) 164; Fred Dapere Gira v The State (1996) 4 NWLR (Pt.443) 375; Ubani v The State (2003) 18 NWLR (Pt.851) 224.

He submitted that the deceased, one Emmanuel Odey died may not be in doubt in view of the evidence of PW1 and the medical report tendered by him i.e. Exhibit A. That, death may be the probable consequence where a victim sustains gunshot wounds is not also in doubt. But, that where there is doubt or collection of doubts in this case is the allegation by the prosecution that it was the act of the Appellant that caused the death of the deceased.

Counsel submitted that there exists material contradiction in the case of the prosecution in the three (3) extra judicial statements made by the Appellant – exhibits B, B1 and E.

He argued that it is settled law that where there exists material contradiction in the case of the prosecution. It generates doubts which must be resolved in favour of the accused person. He referred to the cases of Ikemson V The State (supra) at 464; Offorlete V The State (2000) 12 NWLR (Pt.681) 415 at 434; Egboghonome V The State (1993) 7 NWLR (Pt.306) 383 at 432.

Counsel submitted further that there was no direct eye witness account or circumstantial evidence of how the deceased died other than the account of the Appellant which is in tandem with the contents of Exhibits B and E in material respects. He submitted that in the circumstances of this case, the trial court had no choice than to rely on the version put forward by the Appellant as there was no evidence save, Exhibit B1 to link the death of the deceased to the Appellant.

Learned Counsel for the Respondent held on to the proof by the Appellant’s confessional statement in his response to Issue 4 and reiterated that when a confessional statement has passed the relevant true tests for its admissibility as in the instant case, there is nothing which prevents a court from safely convicting on it.

In the first place, I do not think the Learned Counsel for the Appellant was right to have said that there are contradictions in the extra-judicial statements of the Appellant – Exhibits B, B1 and E. Rather, I would say that the facts in Exhibit B and E were corroborative of the confessional statement – Exhibit B1.

Secondly, the Appellant’s Counsel does not seem to appreciate that the three extra-judicial statements Exhibits B, B1 and E do not in fact belong to the same class in the category of proof. And, that in itself is enough to show that they could not in fact be contradictory to each other. The three (3) of them Exhibits B, B1 and E are all extra-judicial statements of the Appellant, however Exhibit B1 stands out as a confessional statement on account of which tested with other facts the conviction of the Appellant was based.

In the instant case the learned trial judge was right to have convicted the Appellant by his confessional statement – Exhibit B1 Issue No. 4 is resolved against the Appellant.

The complaint of the Appellant in Issue No 5 is that the learned trial judge was wrong not to have granted the Accused/Appellant his right of allocutus that this denial is not only contrary to the provision of Section 247 of the Criminal Procedure Law but also contrary to the fair hearing provision in Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

On the other hand, Learned Counsel for the Respondent submitted that where the court has convicted an accused person on a mandatory sentence such as that of capital punishment as in this instant case, the court or judge has no other option than sentencing the accused person accordingly and that the failure to grant allocutus cannot vitiate the proceedings.

I totally agree with the Learned Counsel for the Respondent that the failure to ask an accused person to plead allocutus has no effect whatsoever on the validity of the proceedings.

Section 247 of the Criminal Procedure Law of Ondo State is instructive:

“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law, but the omission of the Registrar so to ask him or his being so asked by the judge or Magistrate instead of the Registrar SHALL have no effect on the validity of the proceedings”‘ Clearly, the use of the word “shall” in the last line of the provision of Section 247 of the CPL Ondo State truly dictates that a proceeding would not be invalidated by the failure to comply with the provision of the law.

See. Ayodele V State (2011) 6 NWLR (Pt.1243) 309 at 314; Nwankwo V Yar’Adua (2011) 13 NWLR (Pt.1263) 96.

Issue No. 5 is also resolved against the appellant.

In this appeal the five (5) issues nominated by the Appellant are resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.

The judgment and conviction of the Appellant in Suit No. AK/8C/2010 delivered on 27th day of March 2012 is accordingly affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read carefully in draft the lead Judgment delivered by my Lord Owoade JCA, and concur that the appeal deserves to fail.

The confessional nature of Exhibit ‘B’ is clear. A conviction can be and was validly founded on same. The fact of corroboration, which was luxuriantly provided by Exhibits B and E takes the sail off any argument to the contrary and worst of by any argument that a plea of allocutos must be requested or entered and considered before a conviction.

There is no invalidation effect on this purely procedural guide in assisting the courts to have matters or facts that may influence the sentencing. Failure to comply with the provision of allocutos does not invalidate a trial; see S.247 of the criminal procedure law of Ondo State.
Ayodele v State (2011) 6 NWLR Pt. 1243 309 @ 314; and Nwankwo v. Yar’Adua 2011 13 NWLR (Pt. 1263) 96 referred to by My Lord Owoade, JCA.

The trial Court had no discretion in sentencing as done in a mandatory term of sentence where guilt had been proved by the confession amply corroborated.

I concur with My Lord, Owoade, JCA that his appeal should fail. Appeal is dismissed.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA.
I agree that the appeal be dismissed.

In Exhibit B1 the Appellant who was himself out at that time of the night purportedly shot the deceased because he thought he was an armed robber because he saw the deceased outside. He made no effort to ask who was standing. I agree that Exhibits B1 was a confessional statement.

An accused person can be convicted solely on his own confession but it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie v. State (2007) 9 NWLR (Pt.1038) 30. In the instant case, the learned trial Judge found some evidence outside the confession which would make it probable that the confession was true.

For the reasons adroitly stated in the lead judgment, I too dismiss the appeal.

The judgment and conviction of the Appellant are affirmed by me.

Appearances

A.A. Olatunji Esq.For Appellant

AND

Barrister F.K. SalamiFor Respondent