EKANEM v. STATE (2020)

EKANEM v. STATE

(2020)LCN/14045CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/C/180C/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

SAMUEL MATTHEW EKANEM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT CONFESSIONAL STATEMENT IS THE BEST EVIDENCE ON WHICH A TRIAL COURT CAN CONVICT AN ACCUSED PERSON

It was held in plethora of judicial decisions that where a confessional Statement is voluntarily made, is the best evidence on which the trial Court can rely to convict an accused person. See AKPAN V STATE (1992)6 NWLR (prt 248) 439, MAGAJI V NIGERIAN ARMY {2003)8 NWLR (1089) 338 and OFORDIKE V STATE (2019) 5 NWLR (prt 1666) 395. PER SHUAIBU, J.C.A.

WHETHER OR NOT CORROBORATIVE EVIDENCE NEEDS TO BE A DIRECT EVIDENCE

It is to be borne in mind that the corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or tends to connect the accused with its commission. See DURUGO V. STATE (1992) 7 NWLR (PRT 255); 522, STATE V. GWANGWAN (2015) 13 NWLR (PRT 1477) 600 AND STATE V. YAHAYA (2019) 13 NWLR (PT 1690) 397. PER SHUAIBU, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Akwa Ibom State contained in the judgment of the Hon. Justice G. J. Abraham on 14th February, 2005 in charge No. HKN 12C/2003.

The Appellant was arraigned on an information containing one count for the murder of James Jacob Udo on the 3rd day of August, 1993 at Mbiabong Ikot Etim, Ini Local Government Area within Ikot Ekpene Judicial Division contrary to Section 319(1) of the Criminal Code Cap. 31 vol. 11 Laws of Cross River State as applicable to Akwa Ibom State.

The case was first tried before Hon. Justice J. J. Umoren where the prosecution has called two witnesses. The case then commenced de novo before the Hon. Justice Godwin J. Abraham. Before Hon. Justice Godwin J. Abraham the prosecution called three witnesses. PW1 and PW3 are Court officials who tendered earlier Court proceedings especially as regards the evidence of Sergeant Ime Peter the IPO and James Udo Idiong (deceased father) who testified as PW1 and PW2 respectively before Hon. Justice J. J. Umoren. Before the Hon Justice Abraham, the prosecution called three

witnesses and tendered two Exhibits 1 and 2. Exhibit 1 is the evidence of Sergeant Ime Peter given in the earlier proceeding while Exhibits 2 is the evidence of Jacob Udo Idiong who also testified previously in respect of the charge. Exhibit 1 included and contained Exhibits A, B, C – C1, D-D3 and E-E3 which were admitted along and as part of Exhibit 1.

The prosecution’s case was/is that the Appellant at Mbiabong Ikot Etim, Ini Local Government Area of Akwa Ibom State, killed and beheaded James Jacob Udo and Michael Udoette Iwere. The villagers reported the matter to the Police. The Appellant was arrested and he directed the police to a swamp where he has buried the heads of the two persons. The police only succeeded to exhume one of the heads. Autopsy was carried out on the dilapidated body of the deceased and a post mortem report was tendered and admitted in evidence. The Appellant in his defence in Court denied knowledge of the deceased or his existence. He denied ever killing the deceased. He said on 4th August, 1993 he was in his house when a group of persons made up of some people from his community and others he could not identify

surrounded him. When he inquired from the people what was going on one of them said, he stole his mother’s cassava tubers in 1989 and was taken to prison and that they did not know how he (the Appellant) came out of prison custody. The people started beating him. They shot him at the leg and one of them said he should be killed. The paramount ruler in the area who was passing by intervened on seeing the crowd and told the people not to kill him but to take him to the hospital. That he was taken in an unconscious state to General Hospital Ikot Ekpene for treatment. That no one interrogated him. He was never told that he committed any offence. It was only when he was taken to Court that he heard about the issue of murder.

The Appellant gave evidence as DW1 but called no other witness(es) and did not tender any Exhibit(s). The Learned Trial Judge reviewed the oral and documentary evidence adduced by the Parties in the case and relying on the Appellant’s confessional statement Exhibit ‘A’ and other surrounding circumstantial evidence convicted the Appellant for the offence of murder as charged.

The crux of the reasoning of the

Learned Trial Judge could be deciphered at pages 60-61 of the record where he stated thus:
“The defence counsel said the statement was obtained by fraud. What the accused person is attempting to do here is to retract from his previous statement. If Exhibit ‘A’ was fraudulently procured it could have been objected to when it was tendered but there was no such object (sic). The statement is so clear and positive that it could not have been the obtained by any form of inducement. The IPO gave evidence of how the accused person led him to where he buried the human heads and he actually exhumed one of the heads. This corroborates the statement, Exhibits ‘A’.
The retraction of the statement made by the accused person is an afterthought. His defence in Court is a concoction aimed at defeating the truth of the matter. I do not believe the accused person’s defence. I believe having regard to the generality of the evidence and the circumstances of the case that the accused person voluntarily made Exhibit ‘A’. He was not induced or defrauded in any manner. The law is that where the confessional statement of the accused

person is voluntary and properly admitted as in this case, the fact that the same is later retracted is immaterial. See the Supreme Court decision in SUNDAY ULUEBEKA VS. THE STATE (2000) 7 NWLR (pt. 665) 404 Held 13 page 428-429. It was held in the same case at page 428 that where the accused confession is direct and positive as in this case, there is no need to seek for corroborative evidence.
While the confessional statement of the accused person alone would have been sufficient to link the accused with the death of the deceased persons, there are other circumstantial evidence which buttress the confessional statement and point presistably (sic) that the act of the accused person caused the death of the deceased persons. There is evidence that the accused person led the Police to exhume the head where he had buried the same. There is evidence that the motorcycle belonging to one of the deceased persons was recovered from the accused persons. These pieces of circumstantial evidence point mestabily (sic) to the fact that the accused was responsible for the death of the deceased persons.

Dissatisfied with the judgment, the Appellant filed a Notice of

Appeal containing three (3) grounds of Appeal in this Court on 22nd April, 2016.

Appellant’s Brief of Argument filed on 15th December, 2017 was deemed filed on 2nd January, 2017. It is settled by Tonye Krukrubo Esq. The Respondent Brief of Argument filed on 12th March, 2018 was settled by Uwemedimo Nwoko Esq, the Hon. Attorney General of Akwa Ibom State. Appellant’s Reply Brief filed on 30th April, 2018 was settled by Tonye Krukrubo Esq.

Learned Counsel for the Appellant distilled two issues from the three grounds of appeal.
i. Whether the conviction of the Appellant based on the Appellant’s uncorroborated retracted confessional statement is sustainable in law.
ii. Whether the Respondent established a case of murder against the Appellant at the lower Court.

Learned Attorney General of Akwa Ibom State for the Respondent also nominated two issues for the determination of the Appeal.
i. Whether from the evidence adduced at the trial, the prosecution had proved the case of murder against the Appellant beyond reasonable doubt.
ii. Whether the lower Court in considering the evidence placed before it erred in law

by convicting the Appellant for the offence of murder.

Learned counsel for the Appellant submitted on his issue one that it is not in doubt that the Appellant was not caught in the act of committing the offence. In other words, the Appellant was not convicted based on any direct evidence. That the Court relied on the Appellant’s confessional statement in arriving at the conviction of the Appellant. He concedes that an accused can be convicted based on his confessional statement.

After referring on the above to the cases of Dogo vs. The State (2013) 10 NWLR (PT. 1361) 160 and Agboola vs. The State (2013) 11 NWLR (pt. 1366) 619; he added that while the Courts have held that an accused person can be convicted based on a retracted confessional statement in convicting an accused person, such retracted confessional statement must be subjected to the six way tests as laid down in the cases of Haruna vs. Attorney General Federation [2012] 9 NWLR (pt. 1306) 419 Osetola vs. The State (2012) 17 NWLR (Pt. 1329) 251 and Chiokwe vs. The State (2013) 5 NWLR (Pt. 1347) 205.

He submitted that in the instant case the Appellant retracted the confessional

statement relied on by the Respondent and the Court below in spite of the retraction held that there was no need to corroborate the confessional statement. Learned Counsel for the Appellant quoted the learned Trial Judge to have held at page 60 of the Record of Appeal that
“The retraction of the statement made by the accused person is an afterthought… the Law is that where the confessional statement of the accused person is voluntary and properly admitted, as in this case, the fact that the same is later retracted is immaterial. See the Supreme Court decision in SUNDAY ULUEBEKA VS. THE STATE (2000) 7 NWLR (PT. 665) 404 Held 13 page 428-429. It was held in the same case at page 428 that where the accused confession is direct and positive as in this case, there is no need to seek for corroborative evidence.”

Learned counsel for the Appellant submitted that the above is not a true reflection of the Law on this point as discernable from very recent Supreme Court decisions. He referred o the case of Chiokwe vs. The State (2013) 5 NWLR (Pt. 1347) 205 where the Supreme Court held that a confessional statement should be put under the

“Litmus test as to its truth outside the statement itself and from other essential evidence to see if the following are in existence:
i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
Iii Are the relevant statement made in it of facts true as far as they can be tested.
iv. Did the accused person have the opportunity of committing the offence charged?
v. Is the confession possible?
vi. Is the confession consistent with other facts which have been ascertained and have been proved?

Still on this, Appellant’s Counsel further referred to the decisions of the Supreme Court in Osetola vs. The State (2012) 17 NWLR (Pt. 1329) 251 and Adisa vs. The State (2013) 14 NWLR (Pt. 1375) 567 and submitted that the Trial Court wrongfully relied on the case of Sunday Uluebeka Vs. The State (Supra) in reaching the conclusion that there was no need for corroboration.

He submitted that in the instant case, there was nothing that corroborated the Appellant’s retracted confessional statement. Appellant’s Counsel submitted that the incriminating substance of the evidence of PW1

the Investigating Police Officer was the Appellant confessional statement. He added that the evidence of PW2 Etim Iwere Akpan was largely hearsay which should not have been admitted in the first place and does not corroborate the Appellant’s confessional statement.

He concluded issue one by reiterating that the Appellant’s conviction which was based on the retracted confessional statement cannot stand. The response of the Learned Counsel to the Respondent on Appellant’s issue one could be garnered essentially in the Respondent statement of issue two and peripherally in the Respondent’s treatment of issue one.

Learned Counsel for the Respondent referred to the decisions of the Supreme Court in Adisa vs. The State (2013) 14 NWLR (Pt. 1375) 567 and KOLADE vs. The State (2017) 8 NWLR 60 at 71 and submitted that a trial Court can admit an accused person’s statement and rely on same in its judgment particularly where there was no objection to the voluntariness of the statement or no evidence of undue influence by the police at the time the statement was made. That a confessional statement of such a nature can ground

a conviction even if retracted during trial.

However, that it is desirable that before conviction can be properly based on a confessional statement which was resiled the Trial Judge should evaluate the confession and the testimony of the accused person and all the evidence outside the confession which would make it probable that the confession was true.

Respondent’s Counsel referred to the cases of DIBIA VS. THE STATE (2017) 12 NWLR (Pt. 1579) 196 at 204, ULUEBEKA VS. THE STATE (2000) 7 NWLR (Pt. 665) 404 and submitted that in the instant case the Trial Court before convicting the Appellant on his retracted confessional statement rightly considered and evaluated some corroborative evidence outside the confession. On the Appellant’s contention that the Learned Trial Judge did not subject the Appellant’s confessional statement to the six way test as laid down in the case of Haruna vs. Attorney General Federation (2012) 9 NWLR (Pt. 1306) 419.

Respondent’s Counsel submitted as follows:
1. That the confession is possible because the IPO – PW1 as contained in Exhibit 1 showed that the Appellant’s statement was

properly recorded as he voluntarily made his statement and thereafter read and interpreted to the Appellant before he endorsed same. Further that the Appellant was presented before a senior police officer where he confirmed his statement as endorsed by the senior police officer.
2. That the Appellant had opportunity of committing the offence charged because the investigating police officer in his evidence as contained in Exhibit 1 testified that the Appellant had identified the Nkari road which is a ‘T’ junction leading to the Appellant’s village as the place where he murdered the deceased (James Jacob). While the Appellant both in his statement (contained in Exhibit 2) and evidence in Court admitted knowing the road called Nkari road which leads to his village (Mbiabong Ikot Ekim village) where he resides.
3. That the Appellant’s confessional statement was/is corroborated by the evidence of the investigating police officer as contained in Exhibit 1 which shows that Appellant after admitting in his statement that he cut off the head of deceased led the police to the exact place where he had buried the head of James Jacob

(deceased) before same was exhumed.
Furthermore, the evidence of Jacob Udo Idiong showed that the motorcycle belonging to James Jacob (deceased) was recovered from the Appellant equally corroborated the confessional statement.
4. That the truthfulness of facts contained in the confessional statement is further confirmed by the post mortem examination report contained in Exhibit 1 which described the corpse as “A decapitated corpse”. He urged us to resolve issue one against the Appellant.

It seems to me that the proposition contained in Appellant’s issue one of the unsustainability of the Appellant being convicted on his uncorroborated retracted confessional statement is not founded in Law or on the facts.
The proposition by the Learned Counsel for the Appellant is not founded in fact because the Learned Trial Judge did in fact found corroboration for the confessional statements from other surrounding facts and circumstances outside of the confessional statement of the Appellant. The first and most crucial of such circumstances is the fact that the police investigation team was led by the Appellant to where he

(Appellant) buried the head of the deceased. There was also evidence that the deceased motorcycle was recovered from the Appellant.
The Learned Counsel for the Appellant was equally not right in law. This is because the desirability of subjecting a retracted confessional statement to measure and finding corroborative evidence before utilizing same to convict does not derogate from the well established principle that a free and voluntary confession of guilt whether judicial or extra judicial, if it is direct and positive and properly established is sufficient to sustain a conviction without any corroborative evidence so long as the Court is satisfied with the truth of such confession subject to the duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See Solola vs. State (2005) 11 NWLR (Pt. 937) 460 Sc Edhigere vs. State (1996) 8 NWLR (Pt. 464) 1 Sc Uluebeka vs. The State (2000) 4 Sc (Pt.1) 203 Idowu vs. The State (2000) 7 Sc (Pt. 11) 50 Alarape vs. State (2001) 14 WRN 1 Sc AKINMOJU vs. The State (2000) 4 Sc (Part 1) 64.
The above explains the attitude of the Supreme Court in

the relatively more recent case of Adisa vs. The State (2013) 14 NWLR (Pt. 1375) 567 where the Court held thus.
“…the fact of retraction of a confessional statement does not preclude the Court from acting on it to convict the accused person. But before so doing the Court must measure the retracted confessional statement against independent material facts in order to ensure that there are corroborative evidence confirming in some material particular not only that the crime was committed but that it was indeed the accused who committed the crime”
See also Kolade vs. state (2017) 8 NWLR (Pt. 1566) 60 at 71.
Indeed the six-way test on retracted confessional statements first developed in the English case of R vs. Sykes 1913 C. A. R. 21 and later applied in numerous Nigerian cases including Haruna vs. Attorney General Federation [2012] 9 NWLR (Pt. 1306) 419 Osetola vs. The State [2012] 17 NWLR (Pt. 1329) 251 Chiokwe vs. The State (2013) 5 NWLR (Pt. 1347) 205 is in the words of the Supreme Court in Chiokwe vs. The State that a confessional statement should be put under the “Litmus test” as to its truth, outside the

Statement itself and from other external evidence” for the Court to be satisfied with the truth of such confession.

In the instant case and as vividly pointed out by the Learned Trial Judge at page 61 of the record of Appeal.
“…There is evidence that the accused person led the police to exhume the head where he had buried the same. There is evidence that the motorcycle belonging to one of the deceased persons was recovered from the accused persons (sic) person. These pieces of circumstantial evidence point irresistibly to the fact that the accused was responsible for the death of the deceased”

In view of the above, Appellant issue one is unfounded and unsustainable. Issue one is resolved against the Appellant.

On issue Two, Learned Counsel for the Appellant reproduced the provision of Section 316 of the Criminal Code on the definition of the offence of murder and reiterated the ingredients of the offence through the case of Eze vs. The State (2013) 16 NWLR (Pt. 1380) 392.

He submitted that, the three ingredients
a. That the deceased had died
b. That the death of the deceased person was caused by the

accused person;
c. That the Act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous body harm was its probable consequence must all be proved beyond reasonable doubt before an accused can be convicted for the offence of murder.

Appellant’s Counsel concluded that the deceased persons died. He submitted that for the third ingredient above to be satisfied, the second ingredient must first be met. That only when it is established that the death of the deceased was caused by the accused the question of his knowledge of the likely outcome of his act or omission be relevant.

Appellant’s Counsel submitted that the evidence of PW1 (IPO) was to the effect that when the case was referred to him certain items were handed to him. That there was nothing connecting the Appellant to those items. That the rest of PW1’s evidence was hinged on the Appellant’s confessional statement which was later retracted by the Appellant. He submitted that the evidence of PW2 was purely hearsay which ought to be expunged by this Court. He urged us to set aside the conviction of

the Appellant.

The Respondent’s response to Appellant’s issue two would largely be found in the Respondent’s treatment of issue one. Learned counsel for the Respondent readily agreed with the Appellant on the three essential ingredients required to be proved by the prosecution in establishing the offence of murder. On this Respondent’s Counsel referred to the cases ofJimmy vs. State (2014) All FWLR (pt. 714) 103 at 120, OKEKE vs. STATE (1999) 2 NWLR (pt. 590)246. On the first ingredient that the deceased died, he referred to Exhibit 2 which contained the evidence of one Jacob Udo Idiong the father of the deceased that the head of the deceased was handed over to him for burial having identified same as that of his son. Also that Exhibit F the post-Mortem Examination as contained in the record describes the corpse as “A decapitated fresh corpse.” On the second ingredient of the offence of murder Respondent’s counsel submitted that the Appellant voluntarily stated in his confessional statement (Exhibit A) as Follows:
“… I gave him a machete cut on his two hands and finally cut off his head. By then

Sunday Akpan Ekanem was with me when I murdered the said “back to land…“

That he also stated:
“… I and Sunday went into bush called Anuk and buried the heads of the two persons”

Still on the second ingredient of the offence of murder that the evidence of the IPO sergeant Ime Peter that it was the Appellant who led them to the place where he (Appellant) had buried the human heads of which that of one of the deceased was exhumed.

On the third ingredient of the offence of murder, Respondent’s Counsel again quoted from Exhibit ‘A’ the Appellant’s confessional statement to wit:
“…the reason we killed the two persons were to hand over their heads to Udo Mbakara who will in turn give to the elders of my village…”

Respondents Counsel reminded us that Appellant’s Confessional Statement Exhibit ‘A’ was tendered and admitted without objection and urged us to resolve issue 2 in favour of the Respondent. I adopt my decision on Appellants issue one also for the resolution of issue two. I will add that the reliance on the Appellant’s Confessional Statement

Exhibit ‘A’ as contained in Exhibit 1 together WITH the evidence of the IPO sergeant Ime peter on how the Appellant led the police team to the place where he (the Appellant) buried the head of the deceased and the confession by the Appellant that he cut off head of the deceased proved the three ingredients of the offence murder beyond reasonable doubt and provided justification for the conviction of the Appellant as charged by the learned trial Judge. Issues two is resolved against the Appellant.

Having resolved the two issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.

The judgment conviction and sentence of the Appellant by the Hon, Justice G. Abraham on February 14 2005 in charge NO. HKN 12C/2003 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother M. A. OWOADE, JCA.

Appeal lacks merit and is dismissed.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of leading draft the lead judgment of my learned brother Mojeed A. Owoade, JCA, just delivered. I entirely agree with

his lordship’s reasoning and conclusion that the appeal lacks merit should be dismissed.

From the facts of the case. it is very clear that the prosecution has proved all the essential element of the offence of murder against the appellant herein, Again, the appellant’s confessional statement Exhibit A was clear, precise and unequivocal. It was held in plethora of judicial decisions that where a confessional Statement is voluntarily made, is the best evidence on which the trial Court can rely to convict an accused person. See AKPAN V STATE (1992)6 NWLR (prt 248) 439, MAGAJI V NIGERIAN ARMY {2003)8 NWLR (1089) 338 and OFORDIKE V STATE (2019) 5 NWLR (prt 1666) 395.

The appellant in this case had retracted his confessional statement the trial. It is a rule of practice that where an accused person retracts his confession at the trial, the trial Court must look for some evidence no matter how slight outside the confession that would make the confession probable. The evidence of the IPO sergeant Ime Peter on how the appellant led the police team to the place where he buried the head of the deceased corroborated the appellant’s confession<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Appearances:

Tonye Krukrubo, Esq; For Appellant(s)

Uwemedimo Nwoko, Esq; For Respondent(s)