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EGWUCHE v. STATE (2022)

EGWUCHE v. STATE

(2022)LCN/16446(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, October 14, 2022

CA/A/244C/2016

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

STEPHEN EGWUCHE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

PURPOSE OF AN APPEAL

The law is settled as to the purpose of an appeal. Generally, an appeal is not only regarded as a continuation of the original matter being appealed against rather than an inception of a fresh matter and thus, must be against the decision of the lower Court; but an appeal is also an invitation to a higher Court to review the decision of the lower Court in order to find out whether on proper consideration of the facts placed before it and applicable law, the lower Court arrived at a correct decision. See in this regard, the cases of OBASI V. ONWUKA (1987) LPELR-2152(SC) and OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114)172. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

DUTY OF A RESPONDENT REGARDING THE JUDGMENT OF COURT

…. the settled position of the law is to the effect that a respondent is to defend the judgment of the lower Court except when the respondent has his/her own appeal against the said judgment. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW ON CRIMINAL APPEAL

This position of the law in my considered view reinforces the position that in a criminal appeal, the Respondent who initially charged the Appellant must demonstrate to this Court how it proved the charges it preferred against the Appellant beyond reasonable doubt having regard to the printed record. This is more so given the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides to the effect that any person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW WHILE ESTABLISHING THE GUILT OF AN ACCUSED PERSON

Proof beyond reasonable doubt it must be borne in mind, means establishing the guilt of an accused person with compelling and conclusive evidence that does not admit or is not dislodged by reasonable doubt. See the cases of OGBOKA V. STATE (2021) LPELR-55338(SC) and BAKARE V. STATE (1987) LPELR-714(SC) amongst many others. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE WHICH THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT

There is no dearth of cases regarding the elements or ingredients of the offence of culpable homicide which the prosecution must prove beyond reasonable doubt in order to secure a conviction for the said offence. They are: (i) that the deceased died; (ii) that the death of the deceased was caused by the accused; (iii) that the act of the accused which caused the death of the deceased was intentional knowing that death or grievous bodily harm was the probable consequence of his act. See the cases of OGBOKA V. STATE (supra) and UDO V. THE STATE (2016) 2-3 SC (PT. 111) amongst many others. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW ON CONFESSIONAL STATEMENT

The position of the law in my considered view is settled to the effect that the document itself is the best proof of its content(s). See the cases of UDO V. STATE (supra) and IDI V. STATE (2017) LPELR-42587(SC). AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW ON TRIAL WITHIN TRIAL

The position of the law is to the effect that a trial-within-trial is a separate proceeding from the proceedings in the main trial. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW WHEN HAVING MORE THAN ONE CONFESSIONAL STATEMENTS

This being the case, the law is that where an accused person is alleged to have made more than one confessional statement to the Police and which statements the prosecution applies to the Court to be tendered, the trial Court is enjoined to hold a trial-within-trial in respect of each of the statements and cannot determine the challenge to the voluntariness of all the statements together in a single trial-within-trial proceeding. In other words, the law is to the effect that there must be as many trial-within-trials as there are objections to the admissibility of an alleged confessional statement on the ground that the said statements were not made voluntarily by the accused person who is said to have made the same. See in this regard the cases of DURUGO V. STATE (1992) LPELR-972(SC), ONODAVWERHO V. FRN (2019) LPELR-47185(CA); and the unreported decision of this Court delivered on 6/5/2022 in APPEAL NO. CA/AK/229CB/2017 – IGE IBUKUN V. THE STATE…, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

POSITION OF LAW ON THE DOCTRINE OF LAST SEEN

The principle though based on presumption is clearly a specie of circumstantial evidence or one that has its root in circumstantial evidence, as it can be seen from the fairly old case of ADEPETU V. STATE (1998) LPELR-135(SC) wherein the Supreme Court dwelling on circumstantial evidence stated thus: –
The law is clear on the point; where, as in the instant case, direct evidence of eye witness is not available, the Court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. 

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 19/2/2015 by the High Court of Kogi State, presided over by E.O. Haruna, J; (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). Appellant herein as 1st accused person and one Alexander Ojoma (2nd accused person) stood trial before the lower Court on a Charge Sheet dated 26/6/2012. The two counts of offences contained in the said Charge Sheet read thus: –
“1ST HEAD OF CHARGE
That you, STEPHEN EGWUCHE and ALEXANDER OJOMA on or about the 9th day of July, 2011 at Enweli village, Ibaji in Ibaji Local Government Area of Kogi State within Kogi State Judicial Division agreed to do an illegal act to wit: commit culpable homicide punishable with death and that the same act was done in pursuance of the agreement and that you hereby committed an offence punishable under Section 97(1) of the Penal Code.
2ND HEAD OF CHARGE
That you, STEPHEN EGWUCHE and ALEXANDER OJOMA on or about the 9th day of July, 2011 at Enweli Village, Ibaji in Ibaji Local Government Area Kogi State within Kogi State Judicial Division agreed to do an illegal act to wit: commit culpable homicide punishable with death in that you caused the death of Victoria Moses by doing an act to wit; you matcheted (sic) the said Victoria Mosses to death with a cutlass with the intention of causing her death and thereby committed an offence punishable under Section 221(a) of the Penal Code.”

​In proof of the offences preferred against the Appellant and his co-accused, the prosecution fielded 3 witnesses, namely; PW1 – Abel Odoli, the brother-in-law of the deceased; PW2 – Rabiu Musa, a Police Officer attached to Onyedega Police Station and IPO in the case; and PW3 – Ibrahim Dada, a Police Officer attached to State CID, Lokoja and also an IPO in the case at that level. The following Exhibits tendered by the prosecution were admitted in evidence: (i) Exhibit 1A – E – photographs showing the deceased’s body; (ii) Exhibit 1F – negatives of Exhibits 1A – E; (iii) Exhibit T2 – statement dated 14/7/2011 made by the Appellant at State CID Lokoja; (iv) Exhibit T3 – statement dated 14/7/2011 made by the 2nd accused at State CID Lokoja; (v) Exhibits 4A to 4E – medical report on the deceased; and (vi) Exhibits 5 and 6 – two cutlasses.

The Appellant testified on his own behalf as DW1 and called no other witness. He also did not tender any Exhibit.

The case of the prosecution going by the evidence it adduced before the lower Court is to the effect that the Appellant went to the house of the deceased (Victoria Moses) on 8/7/2011 at about 8 p.m. to invite her to his house to buy fish. She however informed him that she would be coming the next day as it was already late at night to carry out the transaction. The next day being 9/7/2011, the deceased informed PW1 that she was heading to the house of the Appellant to buy the fish. However, the transaction fell through or failed as the Appellant considered the price the deceased offered for the fish to be too low. The deceased thereafter left for another village to make purchases. The Appellant and his co-accused however followed the deceased, dispossessed her of the sum of N20,000.00 and inflicted machete cuts on her body, leading to her death. Having waited for the deceased’s return till the next day, PW1 reported the matter at the Odeke Police Station and the Appellant was subsequently arrested.

The Appellant in the evidence before the lower Court, admitted that the deceased came to his house on 9/7/2011 to buy fish and that both of them having failed to agree on the price to be paid for the fish, the deceased left for somewhere else to get the same.

It is apparent from the record of appeal (hereafter to be simply referred to as “the record”) that sequel to the objection by the Appellant and his co-accused alleging that Exhibits T2 and T3 (as marked in the main trial but marked as Exhibits 2 and 3 in the trial within-in-trial) were not voluntarily made by them, the lower Court conducted a trial within trial and in its ruling delivered on 10/2/2014, precisely on pages 86 to 88 of the record, concluded thus: –
“…From the foregoing, the accused persons denied making the alleged confessional statements attributed to them. The submission by the learned counsel to the accused persons that gave birth to the order for trial within trial was that the accused persons were tortured before they thumb-printed the confessional statements.
Having now told the Court that they did not even make any confessional statement, and did not thumb print any statement, the question as to whether they made the statement sought to be tendered is an issue to be decided at the conclusion of evidence.
The statements can be admitted in evidence as it is trite law that confessional statements can be admitted in evidence even when same is denied. See… Consequently therefore the objection to the application to tender the alleged confessional statements in evidence is overruled and the two statements admitted in evidence and marked as exhibits 2 and 3 respectively. Whether or not the accused persons made the confessional statements will be determined at the conclusion of trial.”

At the conclusion of trial, the lower Court in its judgment spanning pages 109 to 132 of the record, and having summarized the evidence adduced before it stated thus: –
“…At the close of evidence, both counsels addressed the Court. The sole issue formulated by both counsel is: –
“Whether the prosecution has proved the charges against the accused persons beyond the reasonable doubt as required by law”
I have carefully considered the entire evidence before the Court in conjunction with the submissions of counsel in their respective addresses.
It is trite law that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. See… Where the defence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt. See … In all criminal trials such as the one at hand, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. This is readily achieved by the prosecution by ensuring that all necessary and vital ingredients of the charge(s) are proved by evidence. See …
I agree with the submissions of both counsel Ifeanye Egwuasi, Esq., and A. Omaga, Esq., that the guilt of an accused person can be proved by
1. Confessional statement of an accused persons(s);
2. Circumstantial evidence;
3. Evidence of eye witness of the crime,..
The ingredients of the offence of culpable homicide which the prosecution is bound to prove beyond reasonable doubt are:
1. That the deceased had died;
2. That the act(s) of the accused persons caused the death of the deceased;
3. That the act(s) of the accused persons which caused the death of the deceased was intentional with knowledge that death was its probable consequence. See…
For the first ingredient to be proved, it is not disputed that the deceased died from the evidence of the prosecution witnesses. The photographs of the deceased exhibits 1a-e and if clearly showed victim Victoria Moses died (sic). Her body was found lying in the bush in a pool of her own blood with parts of her body cut, one of the hands was cut off. PW2 and his team of policemen also visited the scene and witnessed the gory sight. The defence did not deny this fact of death exhibit 4d (sic), the medical report by the DR had it that the body was found stinking; with signs of deep laceration of the right arm; the right hand completely cut off; laceration to the right side of the face; she was in the pool of her blood. There is no doubt that the deceased died. I have also viewed the photographs of the lacerated body, exhibit 1a – f.
I hold without much ado that the prosecution has proved the first ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt. On the second ingredient, that the acts of the accused persons caused the death of the deceased: From the evidence before the Court, 1st accused, Stephen Egwuche on the 8th of July went to the house of the deceased to invite her to his house to buy fish. The deceased went to the house of the 1st accused in the morning of 9th July, 2011. See the evidence of PW1. The accused in his evidence-in-chief admitted this fact. The deceased did not come back home after she left for the house of the 1st accused. The deceased was on the 10th of July, 2011 found dead in the bush at about 11am. The 1st accused did not deny that the deceased came to his house on the morning of 9th July, 2011 to buy fish. The doctrine of last seen therefore applies in the circumstances of this case. The law requires a person last seen with the deceased, whose cause and nature of death is in contention, to offer an explanation of what he knows about the death of the deceased. The law also presumes by this doctrine, that the person last seen with the deceased bear’s (sic) full responsibility for his death, it is therefore the duty of the accused to give an explanation relating to how the deceased met her death in such circumstances. See … In addressing the Court, the learned counsel for the accused persons Ifeanyi Equasi (sic) Esq, submitted that the doctrine of last seen does not apply in that the mirrow (sic) and clothes found in the deceased’s bag shows she had other engagement other than to go and buy fish from the 1st accused’s house, a two minutes (sic) walk. That there must also be corroboration for the doctrine to take effect and that such corroboration is lacking.
From the evidence of PW1, the deceased was found on the 10th of July, 2011 at about 11am in the bush. The description of the scene of crime where the deceased’s body was found did not suggest or agree with the submission that the deceased had other engagements other than to buy fish. The evidence of PW1 under cross-examination is this and I quote: – “…”
Flowing from the above description of the scene where her body was found, it cannot, by any stretch of imagination be inferred that the deceased had any other engagement there in the bush. The 1st accused also admitted that the deceased came to his house to buy fish.
The 1st accused was arrested after the report by PW1. The evidence of PW1 that the 1st accused admitted killing the deceased along with the 2nd accused was corroborated by PW2 who effected the arrest. The evidence of PW1 was also corroborated by PW2 to the effect that the 2nd accused also admitted committing the crime when he was arrested. PW2 was the investigation (sic) police officer and from the evidence before me, he effected the arrest of the 1st accused at Odeke village and took him to Odeke police station where he was questioned and he did not deny, he admitted they committed the offence. When asked of the where about (sic) of the 2nd accused with whom he said he committed the offence he said he did not know. With the aid of the vigilante and the police at Odeke the 2nd accused was arrested. The second accused also admitted he committed the offence.
The evidence that the accused persons admitted committing the crime when they were arrested is not in doubt. I have no reason to disbelieve this piece of evidenced (sic). 1st accused, from the evidence of PW2 admitted they committed the offence when confronted at Odeke police station. He mentioned the 2nd accused who was also arrested and who also admitted they committed the offence.
PW1 and PW2 gave evidence to the effect that the accused persons made confessional statements at Onyedega. These statements were not tendered in evidence. Exhibits two and three tendered are said to be the confessional statements voluntarily made by the accused persons at state CID Lokoja. The accused persons denied making any statement both at Onyedega police station and at state CID Lokoja.
It is my view that since both statements made at Onyedega and CID Lokoja are confessional and the accused persons denied making them, I do not regard the non-production of the confessional statement made at Onyedega as withholding of evidence contrary to Section 167 (d) Evidence Act (sic), 2011. If the defence needed those statements made at Onyedega, the law permits them to call for their production which they did not.
Exhibits 2 and 3 are the confessional statements attributed to the accused persons.

When these statements were to be tendered in evidence, the defence counsel Ifenayi (sic) Egwuasi, Esq., objected on grounds that the confessional statements were not voluntarily made. That when the prosecution served them with these statements and in consultation with (his clients) the accused persons, they told him they were tortured before they thumbprinted the confessional statements. Curiously, in trial within trial, the accused person denied making the statements at all and also denied thumbprinting same. Why the inconsistencies? The accused persons appear to me to be gambling. That they were tortured before they made the confessional statements (exhibits 2 and 3) and were tortured before the (sic) signed same is quite distinct from not making any statement at all and not thumbpriting (sic) any statement. For me to believe them, they must be consistent. It is trite that an inconsistent evidence is for all purposes useless piece of evidence.
Sgt Ibrahim Dada, ASP Adah Williams and CPL. Audu Michael all testified in trial within trial to show that the accused persons voluntarily made confessional statements at CID Lokoja. PW2 Adah Williams before whom the two accused persons were brought, testified that the two accused persons admitted they made the statements voluntarily and he signed an (sic) they too signed. The evidence of PW1, 2 and 3 in trial within trial corroborate the other to the effect that accused persons were not tortured before they made the said statements.
Apart from exhibits 2 and 3, the evidence of PW1 and PW2 in the main trial attests to the fact that when the accused persons were arrested, they admitted committing the offence. The evidence of PW1 and PW2, the accused persons admitted the offence cannot be said to be hear saying (sic) as they told the Court what they heard the accused persons say. I watched PW1 and PW2 in the witness box and they appealed to me as witnesses of truth.
PW3 record (sic) exhibits 2 and 3. From the totality of the evidence before the Court, I find it difficult to believe that the accused persons did not make exhibits 2 and 3. I watched them testifying and the dramatic way the (sic) narrated how they were allegedly tortured did not convince me that they were speaking the truth.
Furthermore, in one breath they said they were tortured before they made and thumbprinted exhibits 2 and 3. In yet another breath, they said they did not make any statement at all and did not thumbprint any statement.
It is trite law that were (sic) a confession is retracted, the Court aught (sic) to evaluate the confession in the light of evidence before the Court to determine what weight to be attached to it. See … The 1st accuse (sic) was the last persons (sic) that was with the deceased. When questioned after his arrest, he admitted he killed her along with the 2nd accused. In exhibits two and three, the accused persons narrated what transpired between them and the deceased. I hereunder reproduce exhibit 2 in part: “…” Exhibit 3 attributed to the 2nd accused is hereby reproduced thus: “…” The above statements were attested to in red by ASP Adah Williams and signed on the 14th July, 2011. There is the thumbprints (sic)of the accused persons, the signature of Sgt Ibrahim Dada as IPO, CPL. Audu Michael as interpreter and Sgt. Ibrahim dad (sic) as recorder of the statement.
Outside the above confessional statements, the evidence of PW1 earlier reproduced showed clearly and strongly too that the confession is true. It is true that 1st accused went to the house of PW1 on 8/7/2011 to invite the deceased to come to his house to buy fish. 1st accused admitted this fact. It is true that the deceased said it was too late and that she will come when it is daybreak. See the evidence of PW1’s evidence that the decease (sic) went to the 1st accused’s house the next morning 9th July, 2011, 1st accused admitted this fact. These are all contained in the statements of the accused persons.
From the confessional statements of the accused persons, when the deceased came, she priced the fish very low and they refused to sell to her. According to the statement in exhibit 2, the deceased said she would go to another village to buy fish. 1st accused also state (sic) this in his evidence in chief. They followed her into the bush area, demanded for her money, macheted her with cutlasses and took her money.
The deceased was never seen after she left home on 09-07-2011. Her body was found on the 10th July, 2011 in the bush with machet (sic) cuts, one of her hands completely cut off. She was in a pool of her blood.
It cannot be correct that the police invented or manufactured the contents of exhibits 2 and 3 far from it. The confessional statements are clearly corroborated by the evidence before the Court as demonstrated above. The evidence in chief of the 1st accused also tallies with substantial portions of the confessional statements.
The facts in the statements are true in relation to the evidence before the Court. At the scene of crime where the body was found in a pool of blood, the deceased’s waist band (i.e. money bag women tie on their waist) was seen cut and put aside. Her fish basket was seen beside her.
I hold therefore that the confession is corroborated, the fact therein stated compared with the other independent pieces of evidence before the Court are true, the confession is consistent with facts which have been ascertained. The confession is also possible given the circumstances of the entire case.
I do not believe the defence evidence that they did not make exhibits 2 and 3. The father of the 1st accused whom they said was in the cell with them up to the CID Lokoja was not called to support their 3 (sic) assertion of torture.
The 2nd accused who told the Court that on the 9th July, 2011, he was at Odeke and one Anthony visited him and they were together throughout that day, did not call the said Anthony. 1st accused also in his defence stated among other things that after the deceased left, he went to the river for fishing; he returned and put the little fish he caught on the fire and asked his younger ones to look after the fish on the fire and he went to farm: after the day’s work, he returned home.
1st accused did not call any witness and neither did the 2nd accused. The 2nd accuse (sic) did not call Anthony whom he claimed was with him throughout the 9th of July, 2011. The defence of Alibi as submitted by the defence counsel does not avail the accused persons as such Alibi was not given during investigation but during hearing of evidence. The mere allegation that they are not at the scene of crime is not enough. They must give some explanation of where they were and who could know of their presence at other place at the material time of the commission of the offence in question (sic), …
On exhibits 5 and 6 the cutlasses tendered; it is the evidence of PW2 that nothing was recovered from the accused persons, so PW2 could not have handed over exhibits 5 and 6 to PW3. I believe the defence evidence that the cutlasses were not recovered from them. Despite the inconsistency in the above prosecution evidence and failure of the prosecution to connect the accused persons with exhibits 5 and 6, this failure in itself is not fatal to the prosecutions (sic) case as submitted by the defence counsel.
The contradictions highlighted by the learned (sic) counsel to the accused persons Ifeanyi Egwuasi Esq I n (sic) paras a to f at pages 20-26 of his written A close observation (sic) of the evidence of PW1 did not indicate that he gave a chronological account of the event as the happened. I do not therefore regard the evidence of PW2 to the effect that the 1st accused led the team of the scene address are not material or fatal to the case for the prosecution (sic).
of crime where the body of the deceased was lying as contradicting the evidence of PW1 (sic). Even if I regard the evidence as contradictory and believe the 1st accused that he did not lead the team to the scene where the corpse was lying in the bush, that is not in itself evidence that the 1st accused does not know the scene of crime, taking into account his confessional statement.
On whether or not the corpse was taken to the hospital, indeed there is contradiction between the evidence of PW1 PW2 and PW3. There are also some discrepancies in the dates on exhibits 4a-e (ie the medical report). Despite the above inconsistencies, the facts remain that there are other evidence upon which the cause of death can be inferred even if the medical report is discarded:… The above discrepancies notwithstanding, the cause of death of Victoria Moses has been strongly and positively linked to the act of the two accused persons beyond reasonable doubt.
The act of the accused persons clearly caused the death of the deceased. From the confessional statements of the accused persons (exhibits 2 and 3), the cause of the death of Victoria Moses was the matchet cuts inflicted on her. The photographs of the corpse taken at the scene showing lacerations on the body, the cut off hand etc corroborated exhibits 2 and 3 as to the cause of death.
This second ingredient has also been proved beyond reasonable doubt.
On the third ingredient, there is no doubt from the circumstances of the entire case that the act of the accused persons was intentional with knowledge that death or grievous bodily harm was its probable consequence. The accused persons followed the deceased, stopped her in the bush; demanded for her money and snubbed life out of her by cutting her with cutlasses.
The facts and circumstances of this case clearly point to the two accused persons as responsible for the death of the deceased coupled with the confessional statements. I therefore hold that the prosecution has established all the ingredients of the offence of culpable homicide against the two accused persons beyond reasonable doubt as required by law.
On conspiracy, indeed, it is not necessary that the conspirators are seen together. The fist (sic) of the offence is the meeting of the minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is a matter of inference from certain criminal acts of the parties concerned. See … also (sic) as rightly submitted by the prosecuting counsel, the best evidence of conspiracy is usually obtained from one of the conspirators or from inference, … The accused persons agreed in exhibits 2 and 3 that the (sic) murdered the deceased and took her money. The 1st to be arrested was the 1st accused who admitted killing the deceased.
He mentioned the 2nd accused as haven (sic) committed the crime with him. When the 2nd accused was arrested, he too admitted he committed the offence along the 1st accused (sic). The law does not require that the two accused persons be seen together for the offence of criminal conspiracy to be complete. From the facts and circumstances of this case, it can safely be inferred that they murdered the decease (sic). They both followed the deceased into the bush where they both macheted her to death. The act of the accused persons is clearly illegal.
The prosecution has also proved this head of charge of conspiracy against the two accused persons beyond reasonable doubt.
On the whole, I find each of the two accused persons guilty of each of the two count charges of criminal conspiracy and culpable homicide punishable with death contrary to Section 97(1) and 221(a) of the Penal Code respectively.
Each of the accused persons is hereby convicted on each of the two count charges of criminal conspiracy and culpable homicide punishable with death by virtue of Section 164(2) of the Criminal Procedure Code.

The punishment for culpable homicide under Section 221(a) of the Penal Code is death. For conspiracy to commit an offence punishable with death or imprisonment carries the same punishment.
Each of the accused/convict is hereby sentenced to death for culpable homicide punishable with death.
Each of the accused/convict shall be hanged by the neck till he is dead, See Section 273 of the Criminal Procedure Code.”

Aggrieved by his convictions and sentence imposed on him by the lower Court, the Appellant initiated this appeal by lodging at the registry of the said Court on 21/4/2015, a notice of appeal dated 20/4/2015. The eight grounds of appeal in the said notice shorn of their respective particulars read thus: –
“1. The learned trial Judge misdirected himself in fact and in law when he held that the act of the appellant clearly caused the death of the deceased when the weapons marked as Exhibits 5 and 6 alleged by the prosecution to have been used by the accused persons were found by the Court not to be connected to the accused persons.
2. The learned trial Judge erred in law and in fact when he held that the retracted confessional statements of the accused persons marked Exhibits 2 and 3 were corroborated by the evidence before the Court and thus relied on the confessional statements to convict the accused persons when in fact the evidence before the Court shows the contrary thus occasioning a serious miscarriage of justice against accused persons.
3. The learned trial Judge erred in law and in fact when he held that the doctrine of last seen applied against the accused persons in this case and thus making them guilty of the offences charged.
4. The learned trial Judge misdirected himself in fact and in law when he disbelieved the accused persons (sic) evidence based on an erroneous finding that they appear to be gambling and inconsistent when in one breadth they said they were tortured before they made and thumb printed Exhibits 2 and 3 and in another breadth, they said they did not make any statement at all and did not thumb print any statement.
5. The learned trial Judge erred in law and in fact when he held that the prosecution has proved the case of culpable homicide punishable with death against the accused persons beyond reasonable doubt when the Court had made a finding that the weapons allegedly used for the murder, Exhibits 5 and 6 are not connected to the accused persons and that there are contradictions and discrepancies in the case of the prosecution.
6. The learned trial Judge erred in law when he held that the evidence of PW1 and PW2 saying that the accused persons admitted committing the offence charged in the statement they made at Onyedega police station which statement was not produced in evidence does not amount to hearsay and relied on their evidence to convict the accused persons notwithstanding the fact that the accused persons denied ever making such admission.
7. The learned trial Judge erred in law when he held that the defence of Alibi does not avail the accused persons as such Alibi was not given during investigation but during hearing of evidence, notwithstanding the fact that the prosecution did not cross-examine the accused persons on their defence of Alibi.
8. The learned trial Judge erred in law and fact when he held that the prosecution has proved the charge of conspiracy against the two accused persons beyond all reasonable doubt contrary to the evidence before the Court.”

The reliefs sought by the Appellant from this Court as set out in paragraph 4 of the notice of appeal are: – (i) an order allowing the appeal and setting aside the judgment of the lower Court convicting and sentencing him for the offences of culpable homicide and criminal conspiracy; (ii) an order discharging and acquitting him of the said offences.

I consider it necessary to state that the Appellant’s co-accused – Alexander Ojoma, in the Charge entertained by the lower Court, lodged his own appeal against the judgment of the lower Court delivered on 19/2/2015, now on appeal. The said appeal is APPEAL NO. CA/A/224CA/2016 and was equally entertained by this Court on 13/9/2022, when the instant appeal was entertained.

​This appeal was entertained on 13/9/2022 and learned counsel, Ifeanyi Egwuasi, adopting and relying on the Appellant’s brief of argument dated 27/4/2020 and filed on the same date but deemed properly filed and served on 29/4/2020, urged the Court to allow the appeal. In the same vein, Badama Kadiri, learned DPP, Kogi State, leading one other Law Officer, in urging the Court to dismiss the appeal, adopted and relied on the Respondent’s brief of argument dated 30/6/2020 and filed on 3/7/2020 but deemed properly filed on 13/9/2022.

The three issues formulated by the Appellant for the determination of the appeal in his brief of argument are: –
“(i) Whether the lower Court was right in holding that the prosecution proved the offences of criminal conspiracy punishable with death and culpable homicide punishable with death against the appellant and the co-accused beyond all reasonable doubt to be entitled to conviction. (Covers Grounds 1, 2, 4, 5, 7 and 8).
(ii) Whether the lower Court was right in holding that the evidence of Pw1 and Pw2 that the appellant and the co-accused made confessional statements at Onyedega Police station admitting the offences charged were not hearsay notwithstanding that the alleged statements were not produced in Court and the lower Court relied on the evidence to convict the appellant. (Ground 6).
(iii) Whether in the circumstances of this case, the lower Court was right in applying the doctrine of last seen to hold that the appellant and the coaccused are guilty of the offences charged. (Ground 3).”

The following issues were formulated by the Respondent for the determination of the appeal in its brief of argument:-
“1. Whether considering the facts of the case and the evidence on record, particularly exhibit 2 and the oral narration of the Appellant’s confession at Onyedega by the PWS 1 & 2, the Respondent was able to prove the commission of the offences of criminal conspiracy and culpable homicide punishable with death against the Appellant to warrant his conviction and sentence by the lower Court. (Distilled from grounds 1, 2, 4, 5, 7 and 8).
2. Whether considering the circumstances leading to the death of the deceased, the lower Court was right in applying the doctrine of last seen as one of the reasons for convicting the Appellant for the offences he was charged with at the lower Court.”

​Arguing issues 1 and 2 together, the Appellant having set out the ingredients of the offences of criminal conspiracy and culpable homicide pursuant to Sections 97(1) and 221(a) of the Penal Code submitted to the effect that the onus was on the prosecution to prove the ingredients of the said offences. That to establish the offence of homicide, the cause of death must be linked to the accused person. It is the stance of the Appellant that the prosecution failed to prove any act or omission on his part that caused the death of the deceased. That the only evidence linking him to the crime is Exhibit T2 which was retracted by him and which the lower Court failed to properly evaluate nor was the same corroborated in any manner. The Appellant proceeded in paragraphs 4.11 to 4.27 of his brief of argument to challenge the propriety of Exhibit T2 in relation to his thumb printing the same and its voluntariness. Appellant further submitted that he was consistent in his evidence that he did not thumb print the said Exhibit and nowhere in his evidence did he state that he was tortured before he thumbprinted Exhibit T2. That given his denial of thumbprinting Exhibit T2, the prosecution ought to have corroborated the fact of his thumbprinting the said Exhibit by calling a thumbprint expert as a witness pursuant to Section 68 of the Evidence Act. Appellant submitted that Exhibit T2 was not voluntarily made and that the lower Court ought not to have acted upon it. That the prosecution in the trial-within-trial merely denied torturing him but failed to establish that the said confessional statement was voluntarily made. Appellant submitted that contrary to the finding of the lower Court that he appeared to be gambling and inconsistent when in one breadth he stated he was tortured before Exhibit T2 was made and thumbprinted by him and in another breadth asserted that he did not make the statement; he was consistent in his evidence that he did not thumb print the said Exhibit and never stated that he was tortured before he thumb printed the same. Appellant argued that the evidence of the prosecution regarding the voluntariness or otherwise of the said confessional statement was riddled with inconsistencies and ought not to have been acted upon by the lower Court. Appellant further asserted that the evidence of the prosecution regarding the interpretation of Exhibit T2 to him was contradictory.

​It is the stance of the Appellant that there are substantial contradictions in the evidence of the witnesses fielded by the prosecution which are fatal to the prosecution’s case. That the lower Court having found that Exhibits 5 and 6, the alleged weapons used in the killing of the deceased were not connected to him, could not in another breath hold that the acts of the Appellant caused the death of the deceased and as such he could not have been properly convicted of the offence of culpable homicide. Appellant posited that his conviction on the finding of the lower Court that the Police could not have invented or manufactured the contents of Exhibit T2 cannot be supported by the evidence before the said Court. That the Police manufactured Exhibits 5 and 6 in a bid to secure his conviction and they (Police) could have also invented the confessional statement attributed to him. Appellant argued that the principle of withholding evidence pursuant to Section 167(d) of the Evidence Act was applicable in this case, given the failure of the prosecution to tender the alleged confessional statement made by him at Onyedega Police Station and that the evidence of PW1 and PW 2 to the effect that he admitted committing the offences charged amounted to hearsay and inadmissible and the lower Court erred in attaching any weight to the said statements more so as there was no evidence corroborating same. Appellant submitted to the effect that the lower Court failed to evaluate the alleged confession made by him in the light of the evidence before it (lower Court) to determine the weight or value to attach to it (alleged confessional statement). That the prosecution never corroborated the said confessional statements through independent credible evidence to establish that he (i.e. Appellant) committed the said offences and consequently the lower Court was wrong to have admitted and acted on them. That there is nothing outside the said confessions to prove that he and his co-accused conspired and committed the offences charged nor was he near the scene of the crime when the same was committed and that the Police having failed to investigate and challenge the evidence of alibi raised by him is deemed to have believed the same. That the lower Court was wrong to hold that he failed to raise the defence of alibi during investigation as the prosecution did not tender any statement made by him immediately after his arrest. Appellant argued to the effect that the failure of the prosecution to tender the shirt and trousers which he allegedly used his share of the money stolen from the deceased to purchase raised gaps in the case of the prosecution. It is the Appellant’s stance that in a criminal case involving robbery, it is essential for the prosecution not only to prove that certain items were stolen but also to produce them in Court as exhibits. Appellant emphasized that the failure of the prosecution to link him to Exhibits 5 and 6, is fatal to the case of the prosecution. That the case of the prosecution against him was built on suspicion because the deceased came to buy fish from him. That given the items found with the deceased, it is correct to draw the inference that she went somewhere else after coming to his house to buy fish. Appellant submitted that there is no link between his house where the deceased told PW1 that she was coming and the scene of crime as the two locations are far apart. That the prosecution only proved one ingredient of the offence of culpable homicide pursuant to Section 220 of the Penal Code which is that the deceased died. That it however failed to prove the other ingredients of the said offence as well as the charge of criminal conspiracy as defined by Section 96(1) of the Penal Code, beyond reasonable doubt against him. It is the stance of the Appellant that the prosecution failed to prove beyond reasonable doubt that he committed the offences charged. That the doubt raised in the case of the prosecution manifested itself in the inconsistent, contradictory and conflicting evidence of the prosecution witnesses and such doubt ought to be resolved in his favour.

​Dwelling on his third issue, Appellant submitted to the effect that there is also no evidence of any contact between him and the deceased after the abortive “fish transaction”. Appellant submitted that the doctrine of last seen does not require more than a minimum explanation which he gave in his evidence. Appellant referred to pages 54, 68, 120, and 138 of the record and argued that the deceased may have gone home after meeting with him to pack her basket with pomade, cosmetics, clothes, mirror etc; and then embarked on another journey/transaction to some other place. It is the stance of the Appellant that the doctrine of last seen is inapplicable to this case as there must have to be corroboration in relation to the same which is lacking in the instant case. That given the evidence of PW1 in relation to the distance between his house and where the corpse of the deceased was found, there ought to have been corroborative evidence of a witness who saw him in the company of the deceased after she left his house. Appellant argued that the prosecution failed to show outside the confessional statement that he and his co-accused threw the deceased into the bush after killing her. The prosecution did not prove by forensic evidence that his fingerprints were found on the body of the deceased nor was there corroborative evidence that he and his co-accused handled the body of the deceased. Appellant further submitted that the prosecution’s evidence was not cogent and compelling enough to point only to the direction that he killed the deceased.

​Dwelling on its issue 1, the Respondent having stated that the onus was on it to prove the offences with which the Appellant was charged, submitted to the effect that having regard to the modes of proving the commission of a crime, Exhibits T2 and T3 clearly showed that the Appellant and his co-accused conspired to kill the deceased and in furtherance of the same, did actually kill her. Respondent submitted that the offence of conspiracy can be inferred from the acts of an accused without the necessity of ascertaining any overt acts of the same. That it is the manifestation of the act that reveals the conspiracy. Respondent submitted that the prosecution had established the offences of criminal conspiracy and culpable homicide against the Appellant. That the evidence of the prosecution witnesses as well as Exhibits 1A – 1E and 4A to 4E corroborated the confessional statement of the Appellant admitting the commission by him of the offences he was charged with. Respondent further submitted that the contents of Exhibit T2, clearly showed that the Appellant intended the consequence of his act. It is the stance of the Respondent that a conviction for the offence of culpable homicide is sustainable the moment the prosecution establishes an intention to cause grievous bodily hurt, even though the intention falls short of an intention to kill. That the Appellant cutting off the hand of the deceased and stabbing her with a cutlass at the back is enough demonstration of his intention to kill the deceased. Respondent submitted that the assertion of the Appellant that Exhibit T2 was involuntarily made and his subsequent retraction of the same at the trial-within-trial amounted to inconsistency and that the lower Court ought to have disregard the positions of the Appellant in respect of Exhibit T2. The Court was urged to hold that there was no objection to the admissibility of Exhibit T2. It is the stance of the Respondent that the confessional statement of the Appellant is direct, unequivocal and positive. That the evidence of the Appellant on oath that he invited the deceased to buy fish from him was corroborated by Exhibit T2 and amounted to an independent proof outside the confessional statement that a crime was indeed committed and also that the Appellant had the opportunity of committing the offences he was convicted of/for and consequently, the lower Court rightly held that Exhibit T2 was corroborated. It is the Respondent’s stance that a confessional statement is the most satisfactory evidence that an offence has been committed if there is independent proof that a crime has indeed been committed and the accused had the opportunity of committing same as in the present case. That Exhibit T2, can be relied upon to convict the Appellant even in the absence of an eye witness as it amounts to enough proof beyond reasonable doubt. That assuming without conceding that Exhibit T2 is not corroborated, it is trite that it is sufficient to sustain a conviction without any corroborative evidence. Contrary to the submissions of the Appellant, the Respondent posited that there is no law requiring a maker of a confessional statement to be taken to a Superior Police Officer and for the said statement to be endorsed by the said officer as this is merely a matter of practice and a confessional statement not so treated should not necessarily be viewed with suspicion. In the present case however, the Appellant was taken to a Superior Police Officer and the statement endorsed by him. Respondent submitted that the oral confession made by the Appellant to PW1 and PW2 that he committed the offences is on the same pedestal as the confession contained in Exhibit T2. Respondent contented that the Appellant having had knowledge of the existence of the statement made at Onyedega Police Station, the onus was on him to have requested for it if he knew the same would lend credence to his case and having failed to do so, it cannot be said that it (Respondent) withheld evidence. That contrary to the contention of the Appellant that Exhibit T2 is inadmissible because he was interrogated by the Police, admission obtained from a person by questions put to him by a Police officer does not render same inadmissible. Respondent argued that assuming without conceding that there were indeed contradictions in the evidence of the prosecution, the same was not on a material ingredient of any of the offences and any such contradictions became of no moment given the confession of the Appellant. Respondent further argued that the finding of the lower Court in relation to Exhibits 5 and 6 does not affect the decision of the said Court as there is no principle of law which required the prosecution to tender in evidence the weapons used in committing an offence in order to establish the guilt of an accused person or to sustain his conviction; nor is it a requirement of the law that the stolen items or the purchase or purchases made with or from the money stolen from the deceased, must be found with the accused in order to show that he participated in the commission of the crime. Respondent further submitted that there need not be the evidence of an eye witness to the crime for the Court to convict the Appellant as a confessional statement suffices to prove the commission of the offence. That the evidential burden of proof of the defence of alibi was on the Appellant who ought to have provided the particulars of his whereabouts as at the time the offence was committed and which the Appellant who denied making any statement at all, at the time of his arrest and during investigation, failed to do. Consequently, the defence of alibi raised at the trial by the Appellant was not properly raised, and could also not have been investigated. Respondent urged the Court to expunge all the arguments canvassed by the Appellant in relation to all the evidence given in the trial-within-trial as evidence in a trial-within-trial cannot be imported into the main trial. That in the absence of an appeal against a decision in the trial-within-trial, whatever evidence that was adduced in the trial-within-trial, is irrelevant and immaterial in the main appeal.

Dwelling on its issue 2, Respondent submitted to the effect that given the evidence of PW1 that the deceased was last seen when she set out for the house of the Appellant to buy fish and also the statement of the Appellant in Exhibit T2 in that regard, the doctrine of last seen was clearly applicable in or to the instant case.

The law is settled as to the purpose of an appeal. Generally, an appeal is not only regarded as a continuation of the original matter being appealed against rather than an inception of a fresh matter and thus, must be against the decision of the lower Court; but an appeal is also an invitation to a higher Court to review the decision of the lower Court in order to find out whether on proper consideration of the facts placed before it and applicable law, the lower Court arrived at a correct decision. See in this regard, the cases of OBASI V. ONWUKA (1987) LPELR-2152(SC) and OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114)172. Against the backdrop of what an appeal is, it is therefore incumbent on an appellant to challenge a judgment of a lower Court he or she is dissatisfied with, on grounds of appeal that go to show that the lower Court was wrong in its decision. In the same vein, the settled position of the law is to the effect that a respondent is to defend the judgment of the lower Court except when the respondent has his/her own appeal against the said judgment. Against the backdrop of the law, as stated above, and given the issues formulated for the determination of the instant appeal in the briefs of argument before the Court as have been set out hereinbefore, I am of the considered view that the simple issue for the resolution of the instant appeal, is as to whether or not “the lower Court was right in holding that the Prosecution/Respondent proved its case against the Appellant beyond reasonable doubt having regard to the evidence (documentary and oral) adduced before it.” In other words, did the prosecution (now Respondent) having regard to the legal and admissible evidence before the lower Court establish the offences of criminal conspiracy and culpable homicide against the Appellant beyond reasonable doubt? This Court as an appellate Court in the determination of the instant appeal is enjoined to re-hear the case decided by the lower Court on printed record by re-examining the whole evidence (both oral and documentary) and in doing this, is entitled to evaluate the evidence and may reject conclusions or deductions and/or inferences, made by the lower Court from facts which do not follow or flow from the evidence or may be regarded as perverse. In other words, all the powers of the lower Court are exercisable by this Court when entertaining an appeal. See in this regard the case of EKPEMUPOLO V. EDREMODA (2009) LPELR-1089(SC) wherein the Supreme Court stated thus: –
“Appeal connotes re-hearing by an appellate Court, an appellate Court does not decide on (sic) appeal solely on the briefs of arguments filed by Counsel to the parties. They are primarily to assist the appellate Court in arriving at its decision. Whether a Brief or Argument is filed or not, an appellate Court when deciding an appeal is expected to peruse thoroughly the record of proceedings by way of re-hearing the matter before him. An appeal will succeed or fail based on the facts contained in the records and not primarily on the submissions of Counsel as contained in the Briefs of Argument,…”

​It has been shown hereinbefore that the Appellant was charged with the offences of conspiracy and culpable homicide punishable with death. The burden of proof was therefore on the prosecution to prove the commission of the offences by the Appellant beyond reasonable doubt. See Sections 131(1), (2) and 135(1) and (2) of the Evidence Act, 2011. The burden is on the prosecution and does not shift. This position of the law in my considered view reinforces the position that in a criminal appeal, the Respondent who initially charged the Appellant must demonstrate to this Court how it proved the charges it preferred against the Appellant beyond reasonable doubt having regard to the printed record. This is more so given the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides to the effect that any person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

Proof beyond reasonable doubt it must be borne in mind, means establishing the guilt of an accused person with compelling and conclusive evidence that does not admit or is not dislodged by reasonable doubt. See the cases of OGBOKA V. STATE (2021) LPELR-55338(SC) and BAKARE V. STATE (1987) LPELR-714(SC) amongst many others. In other words, once the essential ingredients of an offence have been satisfactorily established by the prosecution and the accused person is unable to introduce any reasonable doubt that enures in his behalf, the charge against the accused must be held to have been proved beyond reasonable doubt.

There is no dearth of cases regarding the elements or ingredients of the offence of culpable homicide which the prosecution must prove beyond reasonable doubt in order to secure a conviction for the said offence. They are: (i) that the deceased died; (ii) that the death of the deceased was caused by the accused; (iii) that the act of the accused which caused the death of the deceased was intentional knowing that death or grievous bodily harm was the probable consequence of his act. See the cases of OGBOKA V. STATE (supra) and UDO V. THE STATE (2016) 2-3 SC (PT. 111) amongst many others.

It must be borne in mind that the position of the law is settled to the effect that the proper approach where a charge of conspiracy is founded on the same facts as the substantive charge, is that a Court should deal with the substantive charge first and then see if the charge of conspiracy is desirable and could be sustained. See the cases of C.O.P V. OGOR (2022) LPELR-57558(SC); AGUGUA V. STATE (2017) LPELR-42021(SC) and NJOVENS V. STATE (1973) 5 SC 17 amongst many others. Against the backdrop of the position of the law as stated above, and as it is apparent from the record in the instant appeal that the prosecution set out to prove the charge of conspiracy preferred against the Appellant on the same facts it relied on in proving the substantive offence of culpable homicide, I will first dwell on and resolve the issue as to whether the charge of culpable homicide was proved against the Appellant beyond reasonable doubt.

​I have read the record in the instant appeal painstakingly and it is very clear or indisputable therefrom that the lower Court relied on the alleged confession made to PWs 1 and 2 by the Appellant and the alleged confessional statement made to PW3 (and which was admitted in evidence and marked Exhibit T2) as well as circumstantial evidence in the form or nature of the “principle of last seen” in convicting the Appellant of the offences preferred against him.

In his brief of argument, the Appellant has not only extensively argued against the reliance by the lower Court on the confession he is alleged to have made to PWs1 and 2 in convicting him, but also on his alleged confessional statement marked Exhibit T2. It is in dwelling on the inappropriateness of the reliance placed by the lower Court on the confession, he is alleged to have made to PWs 1 and 2 that the Appellant has attacked the evidence of PWs 1 and 2 in that regard, as constituting hearsay evidence inasmuch as the confessional statement he is said to have made at Onyedega Police Station was not produced and tendered by the prosecution. Furthermore, the Appellant’s stance is that the non-production and tendering of the confessional statement he allegedly made at the Onyedega Police Station by the prosecution and in which he raised a defence of alibi constituted “withholding of evidence” under Section 167(d) of the Evidence Act.

​It is clear from the record that the prosecution never denied that the Appellant made a confessional statement at the Onyedega Police Station. Indeed, it is clear from the evidence in chief of PW2 (who was the IPO that first arrested the Appellant) on page 64 of the record that he (PW2) claimed to have recorded a confessional statement made by the Appellant. The portion of the evidence of the said witness in this regard is hereby reproduced: –
“I cautioned both of them one after the other and recorded their statement (sic). I cautioned Stephen Egwuche, read it over to him, he understood and thumbprinted. He volunteered a confessional statement…”

Indeed, PW2 under cross-examination on page 67 of the record, reiterated the fact that whatever confession the Appellant made to him as an IPO was reduced into writing as a confessional statement at the Onyedega Police Station, in these words: –
“I recorded the statements of the two accused persons, they are with my lawyer (pointing at O. Omaga). I wrote the statement. He (sic) 1st first accused admitted the offence when I explained the purpose of his arrest, … 1st accused made a voluntary confessional statement.. I recorded the statement of the 1st accused in the morning at about 8 oclock (sic) on the 12th July, 2011.”

The position of the law in my considered view is settled to the effect that the document itself is the best proof of its content(s). See the cases of UDO V. STATE (supra) and IDI V. STATE (2017) LPELR-42587(SC). This being the case, I am of the further view that if the Appellant indeed made a confessional statement to PW2 as the said witness claimed, it is the statement itself that the said witness ought to have tendered in the proof of the said confession. This is more so as the said witness testified that the confessional statement he recorded was in the possession of his lawyer in Court that was prosecuting the case – Mr. A. Omaga. Since the prosecution for reasons best known to it decided to withhold or suppress the confessional statement allegedly made by the Appellant at the Onyedega Police Station and in which the Appellant would have first raised his defence of alibi, I simply do not see why the position of the law regarding “withholding of evidence” was not applicable in the instant case. This is more so as the lower Court having decided to overlook the non-tendering of the said confessional statement allegedly made by the Appellant at the Onyedega Police Station and to have invoked the appropriate presumption of law as created under Section 167(d) of the Evidence Act, 2011, resorted to relying on the very same confession by giving credence as it were, to it by relying on the evidence of PW1 and PW2 in that regard. In my considered view, the lower Court was not correct in law when it stated in its judgment thus: –
“PW1 and PW2 gave evidence to the effect that the accused persons made confessional statements at Onyedega. These statements were not tendered in evidence. Exhibits two and three tendered are said to be the confessional statements voluntarily made by the accused persons at State CID, Lokoja. The accused persons denied making any statements both at Onyedega and at State CID Lokoja. It is my view that since both statements made at Onyedega and CID, Lokoja are confessional and the accused persons denied making them, I do not regard the non-production of the confessional statement made at Onyedega as withholding of evidence contrary to Section 167(d) Evidence Act, 2011. If the defence needed those statements made at Onyedega, the law permits them to call for their production..”

​This is because, the lower Court could not have relied on the confession made by the Appellant and which was reduced into writing having regard to the evidence of the prosecution, by giving credence to the confession purportedly made to the PW 1 and PW2 when the statement purportedly made by the Appellant and in which he purportedly confessed to committing the offences was charged with was not tendered by the prosecution for the Court to see and upon which it could have rightly based its view that the Appellant made any such confession as it (lower Court) invariably found to be the case; when the same prosecution adduced evidence that the confessional statement in question was available in Court. The situation which the non-tendering of the alleged confessional statement made at the Onyedega Police Station by the Appellant, has brought to the fore, is not one where the Appellant should have tendered the statement in question but a situation which derogated from the burden of proof beyond reasonable doubt imposed by law on the prosecution as it did not tender as an exhibit a confessional statement which would have shown consistency and given credence to the testimony of PW1 and PW2 regarding the admission of guilt by the Appellant. It is in my considered view, a total misapprehension by the lower Court that the denial of the commission of the crime by the Appellant in his oral evidence cannot be the proper measure as to whether a confessional statement which ordinarily is part of the evidence of the prosecution where it is successfully tendered was rendered unnecessary by the said denial. The irresistible inference in my considered view therefore, is that the prosecution withheld the alleged confessional statement in which the Appellant ordinarily would have raised his defence of alibi at the earliest opportunity because it would not have been favourable to it – prosecution if the same had been tendered.

​Flowing from all that has been said before now, is that while the alleged confession of the Appellant to PW1 and PW2 cannot in law be hearsay evidence as wrongly argued by the Appellant, he has however shown that the non-production and tendering of the confessional statement the Appellant purportedly made at the Onyedega Police Station, has glaringly robbed the testimony of the said PW1 and PW2, of any credibility.

The Appellant has also in his unwieldy and winding submissions regarding the improper admissibility of Exhibit T2 on the ground of the non-establishment of its having been voluntarily made by him, obliquely or surreptitiously questioned the admissibility of the said Exhibit T2, as the interpreter through whom the said statement was purportedly made was not called as a witness. This much in my considered view would appear to be borne out by the arguments in the Appellant’s brief of argument that have been underlined by me hereinbefore and the submissions at paragraphs 4.11-4.12 on page 7, wherein it was stated thus: –

​“Paragraph 4.11
A cursory look at the said Exhibits 2 and 3 shows that the Exhibits were thumb printed allegedly by the appellant and the co-accused respectively which is an indication that the appellant and the co-accused are illiterates and do not properly understand English language. See pages 8, 9,138-141 of the records of appeal.
Paragraph 4.12
The statement was recorded by a police officer (PW3) in English language as per the endorsement thereon. At the point of tendering the said statements, the appellant’s counsel objected that the statements were not made voluntarily hence a trial within trial ensued…”

It is obvious from the notes of proceedings on pages 71-85 of the record that at the point of the tendering of the confessional statements purportedly made by the Appellant and his co-accused, the learned counsel to the said accused persons challenged the admissibility of the said statements on the ground that they were not made voluntarily by the accused persons that were said to have made the same. It is equally clear from the aforementioned notes that the lower Court proceeded to entertain the objection to the voluntary making by the accused persons of the purported confessional statements which the prosecution sought to tender, jointly or together in the same trial-within-trial proceeding. May I point it out at this stage that the lower Court clearly goofed in setting out to resolve the objection to the admissibility of the purported confessional statements attributed to the Appellant and his co-accused person, together or in the same trial-within-trial proceeding. The position of the law is to the effect that a trial-within-trial is a separate proceeding from the proceedings in the main trial. This being the case, the law is that where an accused person is alleged to have made more than one confessional statement to the Police and which statements the prosecution applies to the Court to be tendered, the trial Court is enjoined to hold a trial-within-trial in respect of each of the statements and cannot determine the challenge to the voluntariness of all the statements together in a single trial-within-trial proceeding. In other words, the law is to the effect that there must be as many trial-within-trials as there are objections to the admissibility of an alleged confessional statement on the ground that the said statements were not made voluntarily by the accused person who is said to have made the same. See in this regard the cases of DURUGO V. STATE (1992) LPELR-972(SC), ONODAVWERHO V. FRN (2019) LPELR-47185(CA); and the unreported decision of this Court delivered on 6/5/2022 in APPEAL NO. CA/AK/229CB/2017 – IGE IBUKUN V. THE STATE, wherein the principle enunciated in the two cases cited above, was applied. The position of the law in respect of many statements by an accused person and which are challenged on the ground that they were not made voluntarily, being as stated above, I am therefore of the considered view that the lower Court could not have properly embarked on the trial-within-trial of the alleged confessional statements made by the Appellant and his co-accused together and that the decision of the lower Court to admit the two separate statements made by the Appellant and his co-accused even as statements which the Appellant and his co-accused denied making at all, in the trial-within-trial, (and which the lower Court was eminently entitled to do once it became apparent to it that the Appellant and his co-accused were denying the authorship of the alleged confessional statements), cannot stand. In other words, and despite the many decisions of the Supreme Court (IBEME V. STATE (2013) LPELR -20138 (SC) being one of them) to the effect that a trial Court can admit a confessional statement once it finds out that the accused person is denying making the confessional statement in question, I still cannot take Exhibit T2 purportedly made by the Appellant as having being properly admitted as it was birthed by a wrong procedure embarked upon by the lower Court: to wit: trying the admissibility of the two separate confessional statements allegedly made by the Appellant and his co-accused, together.

Aside from this, is that even though the lower Court decided to admit the said alleged confessional statements because it found the Appellant and his co-accused to have retracted from the said statements, the confessional statement made by the Appellant clearly cannot have any evidential value as the prosecution never called the interpreter used by the recorder (i.e. PW3) of the alleged confessional statement made by the Appellant in the main trial. In this regard, I find the case of OBARO V. THE STATE (2021) LPELR-56860(SC) very instructive. In the case under reference, the Supreme Court impugned the admissibility of a confessional statement that was admitted without objection at trial on the ground that the said statement was legally inadmissible ab initio as the interpreter that was used in procuring the same was not called as a witness. It would appear that the prosecution in the instant case not appreciating that a trial-within-trial is a separate proceeding and in which it called a witness who claimed to have been an interpreter for the purpose of establishing the voluntary making of Exhibit T2 by the Appellant vis-a-vis the main trial, did not see the need to have also called the same interpreter in the main trial before it formally tendered the confessional statement alleged to have been made by the Appellant and from which the Appellant again retracted in his oral evidence. The lapse or omission on the part of the prosecution in this regard, rendered the admitted confessional statement purportedly made by the Appellant and admitted as Exhibit T2 as lacking in any legal foundation and further robbed it of any evidential value. In my considered view, the prosecution would appear to have sealed its fate regarding the lack of foundation for the admissibility of Exhibit T2 (which the lower Court had initially admitted and marked as Exhibit 2 even though it never held the same to have been voluntarily made during the trial-within-trial) when it again made an application to the lower Court in this vein and which application the said Court granted. The application reads thus:
“Omaga- The matter is for continuation of hearing, subject to Court’s convenience, we are ready, the last witness is in Court.
Furthermore, the two statements were admitted s (sic) exhibits 2 and 3 in trial within trial. I urge the Court to admit them in evidence in the main trail (sic)
Egwuasi – We are ready, no objection.
Court: PW3 Ibrahim Ada:- You are still on Oath to speak the truth. The statements of the two accused persons in evidence in this main trial (sic) and marked exhibits T2 and T3.”
​I am of the considered view that if the prosecution had realized the importance of calling the interpreter through whom the alleged confessional statement made by the Appellant was procured, this was the stage the prosecution ought to have called the interpreter as a witness before causing the Court to mark the Exhibits it had earlier admitted as Exhibits 2 and 3 (during a trial-within-trial in which the said Court never found the statements in question to have been voluntarily made) as Exhibits T2 and T3, in the main trial. In other words, it would appear that the lower Court having rightly found the alleged confessional statement of the Appellant to be admissible as he denied making it at all, could not have rightly marked the said statement as an Exhibit tendered during the trial-within-trial in which it never found the same to have been made voluntarily. This is to say that even though the lower Court was right that the alleged confessional statement made by the Appellant was admissible in evidence during the trial-within-trial, it was in the main trial that the said statement was to be duly or properly admitted and marked as appropriate.
​This is because the lower Court having found that the confessional statement allegedly made by the Appellant was no longer being challenged on the ground that it was made involuntarily, and thus admissible, it had to revert to the main trial to continue with the proceedings and for the confessional statement it had found admissible to be properly tendered having regard to the relevant principles of law governing the admission in evidence of a statement (be it confessional or otherwise) of a person made through an interpreter and it cannot be disputed in the instant case that the Appellant did not make Exhibit T2 attributed to him as his confessional statement in English Language in which PW3 recorded the same. This is more so as the Appellant not only took his plea in Igala language and also testified in Court in the same language, but the evidence of PW3 during the trial-within-trial which is a separate proceeding from the main trial, and during which the lower Court admitted Exhibit 2 showed that an interpreter was used by the PW3 in recording the statement in question. This much in my considered view is what the Supreme Court per Rhodes-Vivour, JSC; made clear in the case of IBEME V. THE STATE (supra) when his lordship stated thus: –
“A trial within trial, a mini-trial ensures that an accused person is treated fairly in a criminal trial. The procedure guarantees equality in the criminal justice system thereby keeping the streams of justice pure.
Where the prosecution seeks to tender an extra-judicial confessional statement of an accused person and it is challenged on the ground that it was not made voluntary, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntary or whether the confessions were beaten out of the accused person. If at the end of a trial within trial, the trial Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement was made voluntarily it is admitted in evidence. In both cases, the Judge should rule accordingly and that brings the trial within trial to an end. The main trial then continues.
See …

​The conclusions that: –
1. The lower Court had no credible evidence before it to support its finding that the Appellant made any confession in respect of the offences with which he was charged to PW1 and PW2; and
2. Exhibit 2 being legally inadmissible ab initio was not legal evidence the lower Court could have relied on in convicting the Appellant for the offence of culpable homicide as a piece of evidence that is legally inadmissible cannot be ascribed any evidential value;
should have portended the end of this appeal. This is because the failure of the prosecution to have placed legal and credible evidence before the lower Court linking the Appellant with the offence of culpable homicide by way of his confession to the same has clearly derogated from the burden of proof beyond reasonable doubt imposed on it by law and which the lower Court glaringly accepted as establishing the guilt of the Appellant.

However, as it is clear from the judgment of the lower Court that the said Court also relied on circumstantial evidence in the nature of the doctrine of last seen in fortifying as it were its conviction of the Appellant for the offence of culpable homicide based predominantly on Exhibit T2, I consider it appropriate to dwell on the principle of last seen and to make a decision as to whether or not it was properly invoked in this case.

​The principle of last seen has consistently received the attention of the Courts, particularly the Supreme Court and it is now settled as to when the said principle can be properly invoked. The principle though based on presumption is clearly a specie of circumstantial evidence or one that has its root in circumstantial evidence, as it can be seen from the fairly old case of ADEPETU V. STATE (1998) LPELR-135(SC) wherein the Supreme Court dwelling on circumstantial evidence stated thus: –
“The law is clear on the point; where, as in the instant case, direct evidence of eye witness is not available, the Court may infer from the facts proved the existence of other facts that may logically tend to prove the guilt of an accused person. In drawing an inference of guilt of an accused person from circumstantial evidence, however, great care must be taken not to fall into serious error. It follows, therefore, that circumstantial evidence must always be narrowly examined, as this type of evidence may be fabricated to cast suspicion on innocent persons. Before circumstantial evidence can form the basis for conviction, the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender. See …
In a criminal case, the burden is always on the prosecution to prove the guilt of the accused beyond all reasonable doubt.
Generally, there is no duty on an accused to prove his innocence. Circumstances may however arise where some explanation may be required from the accused person such as where apparently damning circumstances are established against the accused.
I give a few illustrations. A is charged with burglary, he is found in the hall of the house where the burglary took place without having been asked to come there. It is incumbent on him as a matter of common sense, though not as a matter of law, to give a satisfactory explanation of his presence and if he fails to do this a Court will be justified in inferring the existence of the requisite guilty intent – … Again, X is charged with stealing, he is found in possession of a cheque drawn by the receiver of the stolen goods. X fails to give evidence. He may be convicted -… In R v. Nash (1911)6 Cr. App. Re. 225. N was charged with the murder of her child whose body was found in a well. She had been seen near the well with the child for whom she could not find a home, and she also told lies concerning the child’s where about. She was convicted of the murder of the child. On appeal to the Court of Criminal Appeal, Lord Coleridge, CJ dismissing the appeal said: “the facts which were proved called for an explanation, and beyond the admittedly untrue statements, none was forthcoming… In view of the facts that the child left home well and was afterward found dead, that the appellant was last seen with it, and made untrue statements about it, this is not a case which could have been withdrawn from the jury.”
See also the case of NJOKU V. STATE (2012) LPELR-20608(SC) wherein the Supreme Court dwelling on the doctrine of last seen stated thus: –
“Also the reliance on the principle of last seen by the lower Court is not supported by the facts and applicable law. The principle is usually invoked where there is no explanation as to what happened to or caused the death of a deceased last seen in company of the accused except the accused explains to the satisfaction of the Court what really happened or caused the death of the said deceased. The principle does not apply to a case where the cause of death is known as in the instant case. It is not disputed that the acts of the appellants caused the death of the deceased but what is in contention is whether appellants intended by their admitted action, to kill the deceased. The trial Court found that there was no such intention and I agree with it having regards to the facts and circumstances of the case…”
Lastly, see on the said principle, the case of MADU V. STATE (2012) LPELR-7867(SC) wherein the Supreme Court said thus: –
“It is a misconception and misleading, to say the least for learned counsel to the appellant to come to the conclusion that the doctrine of “last seen” is rooted only in common sense but not law therefore urging this Court to overrule itself on the previous decisions based on the doctrine. This doctrine is indeed of global application. In some other jurisdictions, it is called “the last seen theory” In the India case of Rajashkhanna Vs. State of A.P (2006) 10 SCC 172, the Indian Supreme Court noted as follows:
“The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.”
However, in S. K. Yusuf Vs. West Bengal (2011) the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between “last seen together” and there is possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration…”

In the instant case, the only witness that gave evidence regarding the fact that he had contact with the deceased is the Appellant himself and he narrated why the contact came to be and how the transaction the deceased person came for fell through or failed and that the deceased person thereafter left his house alive. There is absolutely no piece of evidence on record suggesting that any other person saw the deceased with the Appellant either during the transaction that fell through or after she left the house of the Appellant. The Appellant as stated earlier testified to the fact that the deceased left his place alive. The fact that the deceased was not found dead in the Appellant’s house, premises and/or on his farm or any other location close to the Appellant’s house in my considered view would appear to lend credence to the position of the Appellant that the deceased left his house alive as there was nothing suggestive in the evidence adduced by the prosecution that the deceased’s body was deposited at the location it was found from another location. PW2 and PW3 both claim to have investigated the case; neither of the 2 witnesses testified to the effect that blood in any quantity was found in the house or around the house of the Appellant; talk less of linking the blood that must have been split around the scene whereat the body of the deceased was found (having regard to the magnitude of injuries the prosecution portrayed the said deceased to have suffered) as that of the deceased. Aside from this, PW3 who was the second IPO wonderfully tendered two cutlasses which he stated were transferred to State CID by the DPO, Onyedega Police Station, together with the Appellant and his co-accused. There is however no evidence from the DPO regarding wherefrom he got the cutlasses particularly as PW2 who was the first IPO at the scene whereat the body of the deceased was found, never portrayed himself as having found the cutlasses at the same place where the deceased’s body was found when they went to take photographs thereat and/or in the house of the Appellant and/or of his co-accused upon going there to conduct a search. Indeed, PW2 was very emphatic to the effect that he found nothing incriminating in the house of the Appellant. I cannot but note at this stage that if PW3 could wonderfully cause two cutlasses to be tendered as evidence against the Appellant and his co-accused (and which piece of evidence the lower Court in my considered view rightly did not ascribe any value to), the question that should have agitated the mind of the lower Court was as to whether or not concocting and writing a statement implicating the Appellant was beyond the said PW3. The picture created by the prosecution from the totality of evidence it adduced in the instant case, in my considered view, would appear to be that the deceased was killed in the process of robbing her of the sum (and which the prosecution has stated is N20,000.00). However, the prosecution has not shown that no other person knew that the deceased had money on her as at when she left for the house of the Appellant. For example, if the objective of the attacker of the deceased was to rob her of her money, can it be said that PW1 himself did not know that the deceased had money on her as at the time she was going to see the Appellant to buy fish as testified by him? What therefore could have stopped PW1 from trailing the deceased to the house of the Appellant and to have robbed and killed her? The irresistible impression that I have having read the record in the instant case very diligently is that the prosecution put the Appellant on trial for the offences he was charged with in the knowledge that whatever evidence it had could not establish a case of robbery beyond reasonable doubt against the Appellant and on the misconceived ground that a charge of culpable homicide would be easier to establish. The prosecution it would appear in my considered view chose to proceed against the Appellant for the offence of culpable homicide and not one of armed robbery perhaps in the mistaken belief that a charge of armed robbery cannot be sustained where the victim is dead; and as the said prosecution knows that in law the doctrine of last seen is applicable to homicide cases only. The prosecution would however appear to have forgotten that the facts relied upon, before it can be said that the doctrine of last seen has been properly and correctly invoked must be such that lead to the irresistible inference that the Appellant in the instant case and only him could have committed the offence of culpable homicide. Suffice it to say that I simply do not see anything mathematical from all I have stated above that link the Appellant with the killing or death of the deceased person as a result of the robbery she allegedly suffered. Anybody who knew that the deceased was in possession of money could have robbed her and killed her in the cause of doing this. The invocation of the doctrine of last seen against the Appellant by the lower Court and which the Prosecution/Respondent has set out to support in the instant appeal is most unfortunate and baseless having regard to the facts of the case; particularly as there is absolutely no evidence direct or circumstantial showing that the Appellant and the deceased left the Appellant’s house together after the botched fish transaction. I am of the considered view that it is poor reasoning for the Court to have held to the effect (invoking the doctrine of last seen) that when Mr. B goes to visit Mr. A and Mr. B is later found dead close to or far from the residence of Mr. A, that Mr. A on the basis of the said doctrine has to explain the cause of death of Mr. B. when a lot of things could have occurred and which have nothing to do with Mr. A. For example, the fact that the Police even investigated the case involving the Appellant as one of robbery and culpable homicide shows that they knew anybody with sinister intention could have robbed the deceased of her money and in the process killed her. Suffice it to say that the invocation of the principle of last seen given the facts of this case; standing alone or in conjunction with other pieces of evidence relied upon by the lower Court in the nature of confessions made by the Appellant and which confessions have been shown to be lacking in credibility as it related to the confession allegedly made to PW1 and PW2 and the legally inadmissible confessional statement claimed to have been recorded by PW3, cannot be said to have established the guilt of the Appellant beyond reasonable doubt.

Flowing from all that has been said hereinbefore is that the lower Court having failed to properly evaluate the legal and admissible evidence before it, in finding the Appellant guilty of the offence of culpable homicide, the Prosecution/Respondent therefore, cannot be said to have proved that charge against the Appellant beyond reasonable doubt. A fortiori, the charge of conspiracy to commit the offence of culpable homicide must fail as the Prosecution/Respondent undoubtedly relied on the same facts to establish the offence of conspiracy and the substantive offence of culpable homicide which as earlier stated was not proved beyond reasonable doubt. In other words, the charge of conspiracy to commit the offence of culpable homicide is found not to have been proved against the Appellant beyond reasonable doubt.

​In the final analysis, there is merit in the instant appeal and it succeeds. The judgment of the lower Court convicting the Appellant of or for the offences of criminal conspiracy and culpable homicide contrary to Sections 97(1) and 221 (a) of the Penal Code respectively, is hereby set aside as it relates to the Appellant. The Appellant is hereby acquitted and discharged of the said offences.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance, a copy of the judgment of my learned brother, Lokulo-Sodipe, JCA, which has just been delivered. I am in agreement with my Lord that the appeal has merit. I therefore join my learned brother in setting aside the judgment of the lower Court and in discharging and acquitting the Appellant.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had a preview of the lead judgment prepared by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and just delivered. I agree entirely with the reasoning and conclusion reached in the judgment that the appeal is meritorious and deserves to be allowed.

​The question of the extent to which a confessional statement of an accused person can be relied upon as the sole determinant of his guilt, and the test that such a confessional statement must pass through before it can be relied upon, has reappeared again in this appeal. My lord LOKULO-SODIPE, JCA, has dispassionately considered and dealt with the question of admissibility of an alleged confessional statement made in vernacular and written in English language without the Prosecution calling the Interpreter as a witness, and rightly came to the conclusion, with the aid of decided authorities, to which I am in agreement, that the confessional statement of the Appellant (Exhibit T2), is inadmissible. In the circumstance, the conviction of the Appellant by the lower Court cannot be sustained as there is no legally admissible evidence upon which to predicate the conviction. It is for this reason and the more detailed reasons in the lead judgment, including the finding on the withholding of the Appellant’s confessional statement at Onyedega Police Station, that I too allow the appeal and set aside the conviction and sentence passed on the Appellant. In their place, I enter verdict of discharge and acquittal.

Appearances:

Ifeanyi Egwuasi For Appellant(s)

Badama Kadiri, (DPP Kogi State) with him, Ojoma J. Etubi, (L.O) For Respondent(s)