ENEBELI v. STATE (2021)

ENEBELI v. STATE

(2021) LCN/4985(SC)

In The Supreme Court

On Friday, June 04, 2021

SC.1023/2017

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

EDIKE ENEBELI APPELANT(S)

And

THE STATE RESPONDENT(S)

 

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Appellant’s appeal was dismissed and the judgment of the Delta State High Court sitting in Sapele delivered by E.N. Emudainohwo J. (Mrs.) on the 16th July, 2012 was affirmed.

BRIEF STATEMENT OF FACTS
The Appellant was charged on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.

​In a bid to discharge the evidential burden imposed on it by law, the Respondent as prosecution at trial called three witnesses who testified as PW1 – PW3 and tendered seven exhibits marked Exhibits P1 – P7. The Appellant testified in his defence and called one other witness without tendering any exhibit. PW1 is the step father of the deceased; PW2 is the investigating police officer (IPO), while PW3 is the medical practitioner who conducted autopsy on the deceased. Exhibit P1 is the statement of the deceased, Exhibit P2 – P4 are negatives and photographs of the

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deceased, Exhibit P5 is the statement of the Appellant, Exhibit P6 is the attestation form of a superior police officer on the Appellant’s statement, Exhibit 7 is the medical report showing the cause of death.

The brief facts culminating into the instant appeal are that the Appellant and the deceased, one Alero Eniyan were lovers, but the deceased’s parents did not approve of their relationship. The parents of the deceased moved her from Koko where they reside to Ologbo with a view to ending the relationship. The Appellant traced her to Ologbo which caused the parents of the deceased to move her to Ondo town of Ondo State where she found a suitor. The deceased however returned to her parent’s place at Koko because of her sister’s birthday and her suitor came to visit her parents to inform them that he wanted to marry her.

​The case of the Respondent as prosecution was that the Appellant could not stand the deceased getting married to another man and therefore purchased four litres of acid which he poured on her.
That the deceased later died as a result of injuries sustained from the acid poured on her by the Appellant.

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The Appellant on the other hand denied committing the offence and claimed that he loved the deceased. At the conclusion of trial and after the addresses of counsel, the learned trial Judge found the Appellant guilty and sentenced him to death by hanging (see pages 91 – 115 of the record of appeal). The Appellant unsuccessfully appealed to the Court below with the Court below affirming his conviction and sentence by the trial Court. (See pages 176 – 198 of the record of appeal).

In a bid to exhaust the constitutionally guaranteed right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal which has been amended. The amended notice of appeal was filed on 22nd January, 2018 and same was deemed properly filed by an order of this Court made on 17th October, 2019.

The appeal was heard on 11th March, 2021 when counsel adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal. Adopting the Appellant’s brief of argument which was deemed properly filed and served by an order of this Court made on 17th October, 2019, the Appellant’s counsel, OLUKUNLE EDUN ESQ. formulated three issues

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for the determination of the appeal to wit:
i. “Whether Exhibit “P5” (the purported confessional statement) is admissible in evidence when evidence showed that it was not made by the Appellant or same was coerced from him? Distilled from Grounds 2, 4, 5 and 6 of the Amended Notice of Appeal.
ii. Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt? Distilled from Grounds 1, 7, 8, 9 and 10 of the Amended Notice of Appeal.
iii. Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be interpreted as a dying declaration? Distilled from Grounds 3 and 11 of the Amended Notice of Appeal.”

Arguing issue one, counsel urged this Court to disregard Exhibit P5 as a confessional statement because it does not qualify as such under the law. He referred the Court to Section 28 of the Evidence Act, 2011 and the case of NWAKOYE V. STATE (2016) ALL FWLR (PT. 850) 1211. It was submitted that the Appellant was charged with the murder of the deceased on 6/5/2009, while PW1 and PW2 led evidence that the said

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deceased died on 22/7/2009. That Exhibit P5 only purportedly captured events that happened on 5/5/2009. He therefore submitted that the Appellant could not have on 5/5/2009, confessed to committing an offence that happened on the next day or subsequently.

​Relying on Sections 29 (2) (a) and (b) and 29 (5) of the Evidence Act as well as the cases of ONOBU V. IGP (1961) NNLR 25; STATE V. OLASHEHU (2011) LPELR – 11 (SC); STATE V. RABIU (2013) VOL. 220 LRCN (PT. 2) 120; ULUEBEKA V. STATE (2000) FWLR (PT. 11) 1827, learned counsel submitted that the Exhibit P5 was not voluntarily made due to the fact that PW2 testified that the statement was “obtained”. Exhibit P5 was also challenged on the ground that it does not contain an illiterate jurat in accordance with the provisions of Section 3 of the Illiterate Protection Law, Laws of Delta State, 2006. Counsel submitted that while PW2 testified that the Exhibit P5 was read over to the Appellant before he thumb printed and signed same, an examination of the said exhibit would reveal that there is nothing to show that it was the Appellant whom the said Exhibit was read to. He further submitted that there is nothing

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to show that Exhibit P5 was read to anybody in English Language, that there is nothing to show that the person to whom it was read understood it before signing.

​It was further submitted that Exhibit P6, the purported attestation to Exhibit P5 shows that Exhibit P5 was not made voluntarily or was not made at all as it was only written at the bottom of Exhibit P6 that “… I confirm/deny that it was a free and voluntary statement.” That the name of the Appellant was not written in the blank space, neither was Exhibit P6 interpreted to him. Learned counsel further submitted that the attesting officer was not called to testify and the contents of Exhibits P5 and P6 contradicted the evidence of PW2 that the Appellant signed the documents as his signature was not on the documents.

On issue 2, counsel cited the case of OCHIBA V. THE STATE (2012) VOL. 204 LRCN and submitted that all elements of the offence of murder must be proved beyond reasonable doubt before the prosecution can succeed in such a charge. He submitted that the Respondent threw confusion into its case when it could not prove the date the deceased died, especially as the

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Appellant was never arrested or interrogated with respect to a murder charge. That the evidence led by the Respondent’s witnesses did not support the charge that the deceased died on 6/5/2009, as stated in the information. Relying on the case of IBRAHIM V. THE STATE (2015) ALL FWLR (PT. 779) 1149, he submitted that all elements of the charge as contained in the information must be categorically proved. That no attempt was made by the Respondent to explain the material contradictions between the charge and evidence led, neither was the charge amended.

​Learned counsel also contended that there was no direct, credible or positive evidence fixing the Appellant to the scene of crime on 6/5/2009. It was submitted that the deceased could not have been able to identify the Appellant at 3:20 am when she was asleep as the alleged incident happened within minutes. That there was no picture of the door that was allegedly broken, there was no evidence that anyone heard the voice of the Appellant and there was no evidence of the lighting condition in the deceased’s room. Learned counsel submitted that there was no way the deceased could have been coordinated enough to

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identify the Appellant in that condition. Reliance was placed on the cases of SALE V. THE STATE (2016) ALL FWLR (PT. 822) 1635; OSUAGWU V. STATE (2017) ALL FWLR (PT. 872) 1504.

​Counsel submitted that Exhibit P7, the medical report is a worthless piece of paper as it contradicted the date stated on the charge that the deceased died. That the statement of PW3, the medical expert that on 22/7/2011 (about two years after the death of the deceased), the deceased had bandage in her head, chest and both thighs and other evidence purportedly indicating that the body was still fresh are all false. It was also submitted that PW3 admitted under cross-examination that the deceased died two years before the post mortem was conducted on her. That no evidence was given as to how the body of the deceased was preserved, neither was there any evidence excluding any intervening cause of death considering the fact that the deceased was said to have lived for two months after the incident occurred. It was equally submitted that there was no explanation by PW3 as to how the Appellant was able to live for two months after the acid was allegedly poured on her. The case of

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SHANDE V. STATE (2005) ALL FWLR (PT. 279) 1359 was relied on.

​It was the further submission of learned counsel that there is doubt that PW3 examined the deceased because Exhibit P7 does not contain the name of PW3 or any other medical doctor and the Court cannot presume whose name is on the document. He also submitted that Exhibit P7 was wrongly admitted and urged this Court to reject same because according to him, the exhibit ought not to have been tendered through PW3 as it could only be used to confront the witness.

On issue three, counsel submitted that the lower Court erred in holding that the deceased’s statement “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” was a dying declaration without considering the special circumstance of the case. It was further submitted that the trial Court had no power to pick and choose which version of the prosecution’s evidence to accept. The cases of UDOSEN V. STATE (2007) 4 NWLR (PT. 1023) 125; COP V. AMUTA (2017) VOL. 263 LRCN 23 were cited in support. Learned counsel submitted that Exhibit P1 supersedes the evidence of PW1 as the deceased who made the Exhibit was

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the only eyewitness to the alleged crime. He submitted that the lower Court was wrong to have held that both the statement of the deceased in Exhibit P1 and the evidence of PW1 were declarations made by the deceased as to the cause of her death. That the statement in Exhibit P1 is the only dying declaration as it was made directly by the deceased who was the victim of the alleged offence and the lower Court was wrong to have ignored it in considering the entirety of the res gestae. Section 40 of the Evidence Act was referred to.

Counsel urged this Court to reject the evidence of PW1 as unreliable because he was asleep when the incident occurred and he could not have heard the statement purportedly made by the deceased. On the whole, he urged this Court to allow the appeal, discharge and acquit the Appellant for the offence of murder.

​C.O. AGBAGWU ESQ., DEPUTY DIRECTOR, DEPARTMENT OF APPEAL, MINISTRY OF JUSTICE, DELTA STATE settled the Respondent’s brief filed on 16th October, 2019. The said brief was deemed properly filed and served by an order of this Court made on 17th October, 2019. For the determination of the appeal, the Respondent’s counsel also

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formulated three issues to wit:
i. “Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt?
ii. Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be rightly interpreted as a dying declaration?
iii. Whether Exhibit “P5″ (the Appellant’s confessional statement) is admissible in evidence?”

On issue one distilled by the Respondent, learned counsel submitted that in order to succeed in a charge of murder, the prosecution must adduce credible evidence linking the accused person with the crime and all ingredients of the offence must be proved beyond reasonable doubt. Section 135 of the Evidence Act as well as the cases of DIBIE V. THE STATE (2004) 14 NWLR (PT. 893) 257; ADEKUNLE V. THE STATE (2006) 14 NWLR (PT. 1000) 717 were cited in support. It was submitted that the evidence of PW1, PW3 as well as the holding of the learned trial Judge show that the deceased is dead.

​Counsel submitted that from the evidence of PW1 that he heard the deceased shouting that the Appellant poured acid on her body and how

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her condition deteriorated and led to her death before the Appellant’s parents proposed a financial settlement; to the evidence of PW3 about the condition of the deceased and his conclusion that she died from corrosive chemical burns; to Exhibit P1 wherein the deceased stated that the Appellant poured acid on her and Exhibit P5 wherein the Appellant confessed to pouring acid on the deceased, there is enough evidence linking the Appellant with the murder of the deceased. That the only rational conclusion was that it was the Appellant who caused the death of the deceased by pouring acid on her.

On the third ingredient of the offence of murder, learned counsel submitted that the act of the Appellant in pouring four litres of acid on the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. Reliance was placed on the case of AMAYO V. STATE (2001) 18 NWLR (PT. 745) 251. It was submitted that the Appellant in Exhibit 5 narrated how he purchased four litres of acid and how he collected a bicycle from one Roman Emujeben which he rode to the residence of the deceased’s parents where he poured the acid

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on her. That the law presumes a man to intend the natural consequences of his action and the Appellant clearly intended to do grievous harm to the deceased, hence he locked the bedroom of her parents to prevent help from getting to her quickly enough.

Arguing issue two, counsel submitted that by virtue of Section 40 (1) of the Evidence Act, for a statement to qualify as a dying declaration, the person making it must believe himself to be in danger of approaching death and the belief is subjective, not objective. Reference was made to the case ofKING V. THE STATE (2016) LPELR (40046) 1. He submitted that the nature and gravity of the injury inflicted and the part of the body affected ought to be considered in determining whether what the deceased said was a dying declaration. That the statement of the deceased to PW1 ought to be considered because considering the pain caused by the corrosive effect of the acid on her body, the declaration was a true reflection of what was happening to her and was therefore a part of the res gestae. The cases of R. V. WOODCOCK (1789) 1 LEACH 500; ANEKWE V. STATE (1976) LPELR (486) 1 were relied upon.

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Arguing issue three, learned counsel submitted that the trial Court conducted a trial-within-trial before admitting Exhibit P5 after Appellant’s counsel raised an objection to the admissibility of Exhibits P5 and P6 on the ground that they were signed under duress. He submitted that there is no evidence stronger than a confessional statement and that the Appellant in Exhibit P5 gave a graphic account of how the plot to bathe the deceased with acid was hatched, the motive behind the act and how the plan was executed. The case of OSENI V. THE STATE (2012) 5 NWLR (PT. 293) 351 was referred to.

On the contention of Appellant’s counsel that Exhibit P5 ought to contain an illiterate jurat, it was submitted that a statement made to a police officer by an accused person in the course of investigation does not fall within the protection envisaged by the Illiterate Protection Law as such does not involve the civil rights and/or obligations of either the accused person or Police officer. Reference was made to the case of JOHN V. THE STATE (2017) 16 NWLR (PT. 1591) 304. On the attestation form (Exhibit P6), he submitted that Appellant’s counsel having argued that a person who

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thumb printed is presumed to be an illiterate cannot turn around to complain that Exhibit P6 was not signed by the Appellant. That it is obvious from the exhibit that the Appellant thumb printed and stated that he was cautioned, that he understood the caution, that after the caution, he made a statement which was reduced into writing, that the statement was read over to him before he thumb printed and that the statement was voluntarily made.

On the contention of Appellant’s counsel that the prosecution failed to prove the date of death contained in the charge, counsel submitted that 6/5/2009 as the date of death contained in the charge was the day on which the acid was poured on the deceased instead of 22/7/2009 on which she died was an error which ought not to be regarded as material because the Appellant was not misled by the error. Sections 166 and 167 of the Criminal Procedure Act as well as the case of EGUNJOBI V. FRN (2018) 7 NWLR (PT. 1621) 233 were relied upon. In his final analysis, counsel urged this Court to dismiss the appeal and to affirm the decision of the Court below.

RESOLUTION
Having read through the grounds of appeal as

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encapsulated in the Amended Notice of appeal and the issues distilled by parties for the determination of the instant appeal, I find the issues distilled by both counsel identical. However for the resolution I consider the below stated issue as apt:
“Whether from the totality of the evidence on the record and the circumstances of this case, the lower Court was right in upholding the conviction of the Appellant by the trial Court for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.”

The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.

​The Appellant herein was charged with the

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offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable in Delta State.

The law has been long established in a legion of judicial authorities that before an Accused person can be convicted for the offence of murder, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
a) That the deceased died;
b) That it was the unlawful act or omission of the Appellant which caused the death of the deceased; and
c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See the case of OKEREKE V. THE STATE (2016) LPELR – 40012 (SC).

The law is also trite that the three methods of evidential proof as held by the Supreme Court Per, Ogunbiyi, J.S.C in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit:
a. Direct evidence of witnesses;
b. Circumstantial evidence; and
c. By reliance on a confessional statement of an accused person voluntarily made.

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To start with, having perused the Appellant’s grounds of appeal as encapsulated in the amended notice of appeal and also the submissions and arguments of the Appellant’s counsel, it is safe to conclude that the Appellant in the instant appeal has not challenged the fact that the said Alero Eniyan died. The unchallenged finding of the Court below at page 193 of the record of appeal is that:
“From the disceptation (sic) in this matter there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased, Alero Eniyan is dead.”

What is to be considered in the instant appeal is whether it was the act of the Appellant that caused the death of the deceased and whether the act causing the death of deceased was intentional. The Respondent as prosecution called 3 witnesses and tendered 7 exhibits. Exhibit P5 is the Appellant’s confessional statement at pages 25 – 26 of the record of appeal wherein he stated that:
“I know one Alero Eniyan, is my girlfriend. I have been into relationship with Alero Eniyan since year 2005 September. Some time ago Alero mother warned me from her daughter that I should stay away from her daughter that she

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don’t want me to continue a relationship with her daughter any longer. Yesterday being 5/5/09 at about 4:30 pm I was in Ughara with my new girlfriend called Magdalene. It was there in Ughara I bought 4 liter of acid on my way coming back, getting to Koko junction there is no motor to carry me to Koko. There in Koko junction I have to decide and went to one Roman Emujeben who is living in Koko junction there. And deceived him that I am a student of Uni-port. And there is no means for me to get to Koko. It was there the man gave me his bicycle, then immediately as I got to Koko, I moved straight to No. 23 Housing Estate Korobe road Koko where my girlfriend is living, then when I got to the house I padlock her parent bedroom, then I broke the window of my girlfriend while she was sleeping I poured the four liter of acid on her body. Why I poured the acid on her body was that she was abusing me and secondly I heard that she is planning to marry another person.”

​When the confessional statement was sought to be tendered by the Respondent at trial, the Appellant objected to its admissibility on the ground that the said statement was not made voluntarily. In

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adherence to the procedure known to our criminal jurisprudence, the learned trial judge conducted a trial within a trial wherein the voluntariness or otherwise of the said confessional statement was determined. After the close of the micro trial, the learned trial judge found the confessional statement of the Appellant voluntary and proceeded to admit the said statement together with the attestation form as Exhibits P5 and P6 respectively.

It is trite law that a confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the commission of the offence. See OSENI V STATE (2012) 5 NWLR (PT 1293) 351; FRN V IWEKA (2013) 3 NWLR (PT 1341) 285. There is however a 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 ADEKOYA V. STATE (2012) LPELR – 7815 (SC).

PW1, one Eniyan Ede, the victim’s stepfather, testified at pages 54 – 58 of the record of appeal. In his testimony under examination-in-chief, PW1 testified as follows:

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“I know Alero Eniyan. I will describe her as my daughter because I brought her up. Alero Eniyan is dead. I know the accused person in the dock. I knew the accused person because he had a love affair with my daughter Alero. I had known the accused many years ago before his affair with Alero.
At about 2.30 a.m. on the 6th day of May, 2009, I was sleeping in my room with my wife when I heard Alero shout “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body.” When we heard the shout, we wanted to come out from our room only to discover that the room had been locked from outside, thereby locking us in. I was shaking with frightened anger as I could not come out. I then remembered that I had a hammer in my room. I used the hammer to force the door open, for my wife and I to come out. When we came out, we could barely breath, because the air was saturated with the smell of the acid. We rushed Alero straight to Koko Hospital. We noticed as soon as we came out that the deceased skin, from her face, to her breast and all over her body had started selling (sic) because of the acid poured on her. I also discovered that the kitchen door has open and the

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mosquito net was torn. When we got to the general hospital Koko, the deceased was given first aid and we were referred to Sapele General Hospital. At Sapele General Hospital, we were further referred to University of Benin Teaching Hospital Benin (U.B.T.H)…
While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her, by charging (sic) her.”

Having perused PW1’s testimony on the record, it is evident that his testimony under examination-in-chief was not discredited under cross-examination. The evidence of PW2, the IPO and his findings in the course of investigation was also succinct on the fact that the Appellant poured acid on the deceased which led to her death.

​To add credence to the Appellant’s confession, one Francis Nkaoli Nwachokor, the pathologist who conducted the autopsy, testified as PW3. In his testimony at page 79 of the record of appeal, he stated as follows:

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“I carried out an autopsy relating to the matter I was called upon to testify in connection with one Alero Eniyan on the 22nd of June, 2011. I was invited based on a Coroner’s order by a police corporal Imeh Effiong (PW2) from Koko police station to examine the body of Alero Eniyan.
At about 3:15 pm on the 22nd June, 2011, I arrived at the Okparavero Memorial Hospital Mortuary. The records of Okparavero shows that the body of Alero Eniyan was deposited there on the 22nd July, 2009. The body of Alero Eniyan was identified by one Eniyan Ede (PW1) who claimed to be her stepfather. Further examination of Alero revealed that she was aged about 16 (sixteen) years and she measured 4 feet and 11 inches in length. She was slim and dark in complexion. The body of Alero has (sic) bandaged in her head and her chest. Both ties (sic) of Alero were bandaged. Further examination showed that she had corrosive chemical burns that affected her head, face, neck, chest (anterporling) in front up to her upper abdomen. The back of Alero was also affected up to the level of the shoulders. Her entire right upper hand, from the shoulder to the finger, her left arm, that is from her elbow up,

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her two things (sic). Further examination of her revealed that her skin on her head had shifted (sic) and the skull bone was visible. Her skin had also shifted in the neck and chest but were not revealing the underlying bones. I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in the areas that I have described…”

Under cross-examination at page 80 of the record of appeal, PW3 was unshaken as to the cause of death when he testified that:
“My findings as to cause of death was as a result of overwhelming corrosive chemical burns.”

​From the unchallenged evidence of PW1 and PW3, it is evident that there are other credible evidence on the record showing that the Appellant’s confession was true and probable. Flowing from the evidence of PW1 and PW3, the Appellant’s argument and submissions in respect of the failure of the Respondent to prove the date of death goes to no issue. Although the charge sheet at page 7 of the record of appeal states that the Appellant murdered the deceased on 6th May, 2009, while the evidence of PW1 was to the effect that the deceased died on

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the 22nd July, 2009. There are credible evidence on the record that the Appellant carried out the dastardly act on the 6th of May, 2009 but the deceased who was hospitalized after the incident, died on the 22nd July, 2009. I am of the firm view that the discrepancy in the date of death as stated on the charge sheet does not subtract from the fact that the deceased died and that it was the act of the Appellant that caused her death. As a matter of fact, the Appellant has not shown that he was misled by the error or that the error occasioned a miscarriage of justice. The case of IBRAHIM V. STATE (supra) is poles apart from the facts of this case. See also AGBO V. STATE (2006) 6 NWLR (PT. 977) 545; AMADI V. FRN (2008) 18 NWLR (PT. 119); EGUNJOBI V. FRN (2012) LPELR – 15537 (SC) at pages 55 – 56 per Peter-Odili, JSC.

​The Appellant’s counsel in this appeal has raised a legion of objections challenging the admissibility of the Appellant’s confessional statement. One of the objections include the fact that the IPO used the word “obtained” in recording the statement of the Appellant and the other is that the Appellant’s confessional statement does not contain an

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illiterate jurat in compliance with Section 3 of the Illiterates Protection Law of Delta State of Nigeria, 2006.

On the complaint as to the use of the word “obtained”, it is necessary to refer to the evidence of PW2 Effiong Imet, the investigating police officer (IPO). PW2 gave evidence at page 65 of the record as follows:-
“I recorded the statement of the accused at Koko Police Station under caution. The accused volunteered his statement to me under caution. I recorded the statement of the accused for him in English Language… This is the statement I recorded from the accused. When I recorded the statement of the accused, I discovered that the statement of the accused was confessional …”.
Again he stated:
“I can recognized the statement I recorded from the accused and the attestation form while I signed as a witness”.

The witness in his evidence in-chief consistently maintained the use of the words “the statement I recorded” and that he can recognize the statement he recorded. In view of the foregoing, the complaint of the Appellant on this ground is of no moment

​On the absence of an illiterate jurat, assuming

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the Appellant is an illiterate and his statement was recorded in English language by PW2, the Courts have always accepted such statements without the need for an illiterate jurat. See OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793. The rationale for this is that one of the major essence of the provisions of the Illiterates Protection Law is to ensure that the person who made the document on behalf of the illiterate is identifiable and traceable so that where there exists a doubt or there is a denial as to the correct statements that were made by an illiterate in a document, the writer would be traced to show whether the contents of the document represented the veracity of what the illiterate asserted. SeeEDOKPOLO & CO LTD VS OHENHEN (1994) 7 NWLR (PT.858) 511, FATUNBI VS OLANLOYE (2004) 6-7 SC 68.
Furthermore, the Illiterates Protection Law avails an illiterate in civil causes and in respect of documents recorded by another at his instance. Where the document creates legal rights and the writer benefits thereunder, the law sets in to protect the illiterate from any fraud by requiring the writer to comply with its requirements. Basically, compliance

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with the law is in respect of civil matters and the emphasis is on protection of an illiterate in respect of execution of documents which may have the effect of compromising his civil rights and obligations. A statement made to a police officer by a suspect in the course of investigation does not fall within the protection of Illiterates Protection Law, as the statement does not involve the civil rights or obligations of either the accused or the police officer. Hence, based on the foregoing postulations, the Illiterates Protection Law does not apply to statements recorded in criminal cases by the police. See JOHN V. STATE (2017) 16 NWLR (PT. 1561) 304; DAJO V. STATE (2019) 2 NWLR (PT. 1656) 281 at 299; SUNDAY V. FRN (2019) 4 NWLR (PT. 1662) 211.

On the Appellant’s issue no. 3, I am of the view that the dying declaration of the deceased as testified to by PW1 qualified as a dying declaration and same fixes the Appellant at the crime scene.
​It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he or she was going to die is admissible as a dying declaration.

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See Section 40 of the Evidence Act; AKINFE V. STATE (1988) 3 NWLR (PT.83) 729; OKOKOR V. STATE (1967) NMLR 189; KING V. STATE (2016) LPELR – 40046 (SC); OKEREKE V. STATE (2016) LPELR – 40012 (SC) at 37; EZEKWE V. STATE (2018) LPELR – 44392 (SC) at 25 – 26. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. The Respondent in the instant appeal through the testimony of PW1 led evidence as to actual words said as the dying declaration by the deceased and the said statement was a verifiable direct statement by the deceased, directed at the Appellant. PW1 in his evidence at trial said the deceased shouted: “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body”. The statement of the deceased when the Appellant poured acid on her as recounted by PW1 amounts to a dying declaration by the standard of the law of evidence. Considering this issue, the Court below at page 187 of the record of appeal held that:
“The lower Court held that the declaration of the deceased as testified to by PW1 was admissible as a dying declaration. I am in complete agreement.

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The belief of a person that he is in danger of approaching death is objective and not subjective. The statement of the deceased was made when she believed that she was approaching death as a result of the acid which was poured on her and which caused her death. The statement was admissible against the Appellant in the trial where the cause of death of the deceased was in issue.”

The Appellant’s counsel in his brief made concerted efforts to make a mountain out of a molehill by raising lame issues in a bid to distract the Court from the crucial issues in the appeal.

From the overwhelming evidence on record, I hold that the Respondent had proved the charge of murder against the Appellant beyond reasonable doubt. The Appellant’s confession was proved against him. A confessional statement which is voluntarily made is an admission by the maker that he committed the offence. It is the best evidence in support of the case of the prosecution against an accused person. However, such evidence, apart from being voluntarily made, must be positive, direct, pungent and consistent with other facts as proved in the case. See the case of DAIRO V. STATE (2017) LPELR – 43724 (SC).

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The Appellant’s confession is consistent with the evidence adduced by PW1 and PW3.
This Court in the case of SMART V. STATE (2016) LPELR -40827 (SC) held as follows:
“It is pertinent to state that the best form of evidence in a criminal charge and trial is where the accused makes a confession and admitting the commission of the offence. In other words, the best person seized with the knowledge of the Act complained of cannot be any other than the actor himself. Hence premium and quality placed on such evidence is conclusive that conviction on same alone is sustainable in law.”

​At this juncture and before I draw the curtain, I wish to deprecate the attitude of learned counsel for the Appellant in manufacturing stories to suit the interest of his client. In attacking the evidence of PW3, learned counsel stated in paragraphs 2.34 to 2.36 pages 12 to 13 of the brief that there was no evidence of how the deceased was preserved and that the deceased was discharged before she died. PW1 stated in clear terms that the deceased died on admission in the hospital and that the body had been in the mortuary. PW1 on page 55 lines 17 to 27

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stated thus:
“While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her by charging her. The deceased has not been buried, her remains were deposited in a mortuary. The parents of the accused came to beg us to settle the matter by offering us financial settlement and I told them that money cannot buy the life of the deceased, whom I brought up from the age of 4 before she died at about 17 years.”

PW3 in both his evidence in chief and under cross-examination on pages 34 and 35 confirmed that the body of the deceased was preserved in the mortuary since 22nd July, 2009. At page 80, lines 9 – 12, PW3 maintained his stand to the effect that the body was preserved, even under the fire of cross-examination. Hear PW3:
“The deceased had died about two years before I carried out the post mortem on her. It is possible to identify the complexion of the deceased, even though she had stayed in the

32

mortuary for a long time because the body was preserved.”

Learned counsel should refrain from manufacturing facts to suit the interest of his client. As a minister in the Temple of Justice, counsel should always be guided by raw facts as disclosed by the evidence before the Court. To be forewarned is to be forearmed, learned counsel should heed to this advice against the future.

In conclusion, by reason of the failure of the Appellant to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court, the appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. ll Laws of the defunct Bendel State as applicable to Delta State is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother Adamu Jauro, JSC and to register the support in the reasonings from which the decision came

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about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Benin Division or lower Court or Court below, Coram: Ugochukwu Anthony, Mudashiru Nasiru Oniyangi and Philomena Mbua Ekpe JJCA, delivered on the 7th day of June, 2016 dismissing the appeal of the appellant that there is no reason to fault the decision of the trial High Court of Delta State sitting in Sapele per E.N. Emudainowho J. that the offence of murder against the appellant was proved beyond reasonable doubt.

FACTS BRIEFLY STATED
The Appellant was arraigned at the lower Court on a count charge of murder as contained in the information. The particulars of the information are stated hereunder:
STATEMENT OF OFFENCE: COUNT I
Murder, punishable under Section 319(1) of the Criminal Code, Cap 48, Vol. II, Laws of the defunct Bendel State 1976 as applicable in Delta State.
PARTICULARS OF OFFENCE
EDIKE ENEBELI (M) on or about the 6th of May, 2009 at Koko Beach within Sapele Judicial Division murdered one Alero Eniyan.

​The prosecution fielded three witnesses and tendered seven (7) exhibits. The Appellant gave evidence in

34

support of his case and called one witness. Judgment was delivered at the lower Court on 16th July, 2012 wherein the Appellant was found guilty and sentenced to death by hanging. Aggrieved with the said judgment the appellant appealed to the Court below which affirmed the decision of the trial High Court.

Further dissatisfied, appellant has come before this Court to ventilate his grievances.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, Olukunle Edun, Esq. adopted the brief of argument of the appellant filed the 22/1/2018 and deemed filed on 17/10/2019. He distilled three issues for determination which are thus:-
i. Whether Exhibit “P5” (the purported confessional statement) is admissible in evidence when the evidence showed that it was not made by the appellant or severely coerced from him. (Distilled from Grounds 2, 4, 5 & 6 of the Amended Notice of Appeal).
ii. Whether the Respondent was also to prove the charge of murder against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 7, 8, 9 &10 of the Amended Notice of Appeal).
iii. Whether the statement of the deceased to

35

PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be rightly interpreted as a dying declaration? Distilled from Grounds 3 & 11 of the Amended Notice of Appeal.

Learned counsel for the respondent, C.O. Abagwu Esq, Deputy Director in the Department of Appeals, Ministry of Justice, Delta State, adopted the brief of argument filed on 14/10/2019 and deemed filed on 17/10/2019. He raised three issues for determination which are as follows:-
(1) WHETHER THE RESPONDENT WAS ABLE TO PROVE THE CHARGE OF MURDER AGAINST THE APPELLANT BEYOND REASONABLE DOUBT?
(2) WHETHER THE STATEMENT OF THE DECEASED TO PW1 THAT “DADDY OH, DADDY OH, MUMMY OH, MUMMY OH, EDIKE DON KILL ME, HE POUR AND ACID FOR MY BODY” CAN BE RIGHTLY INTERPRETED AS A DYING DECLARATION.
(3) WHETHER EXHIBT “P5” (THE APPELLANT’S CONFESSIONAL STATEMENT) IS ADMISSIBLE IN EVIDENCE?

The issue No. 2 of the appellant which is the Issue No. 1 of the respondent is sufficient in the determination of the appeal and I shall make use of it as a single issue.

SOLE ISSUE
Whether the respondent was able to prove the charge of murder against the appellant beyond reasonable doubt.

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Canvassing the position of the appellant, learned counsel contended that the Court should disregard Exhibit “P5” alleged to be the confessional statement made by the appellant because it does not qualify as a confessional statement in law. He cited Section 28 of the Evidence Act, 2011.

That the appellant was charged with the murder of Alero Eniyan on the 6th of May, 2005 and PW1 and PW2 led evidence that the said deceased did not die on the 6th day of May, 2009 but on the 22nd day of July, 2009. That Exhibit “P5” the purported confessional statement captured the activities of the appellant done on the 5th day of May, 2009 and no mention was made of the 6th May, 2009 or 22nd July 2009 and so the appellant could not have on the 5th day of May, 2009 confessed to an offence committed the following day or subsequent days.

For the appellant it was submitted that a statement obtained upon demand cannot be said to be voluntary. He cited Onobu v IGP (1961) NNLR 25 at 26; State v Olashehu (2011) LPELR SC 11; State v Rabiu (2013) Vol.220 LRCN (pt.2) 120 etc.

​That Exhibit “P5” did not meet the

37

mandatory requirements of the provisions of Section 3 of the Illiterate Protection Law of Delta State, Law of Delta State of Nigeria 2006 as there was no jurat.

Learned counsel for the appellant stated that Exhibit “P6” the purported attestation document revealed that Exhibit “P5” was not made voluntarily or never made by the appellant.

It was contended that the evidence led by the prosecution witnesses did not support the charge that the deceased was killed on the 6th day of May, 2009 as stated in the information. He cited Ibrahim v The State (2015) All FWLR (pt. 779) 1149 at 1171-1178.

That the Court should reject the medical evidence of PW3 and the report, exhibit “7” as it was wrongly admitted in evidence. He referred to Shande v State (2005) All FWLR (pt. 279) 1365.

For the appellant it was submitted that the lower Court erred in holding that what the deceased told PW1 amounted to a dying declaration. That exhibit “P1”, the statement of the deceased did not mention the name Edike and the “P1” contradicted the evidence of PW2 and it was not for the Court to pick and choose which piece of evidence to utilise. He cited Udosen v State

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(2007) 4 NWLR (pt. 1023) 125 etc.

The learned counsel for the respondent submitted that the corpse of Alero Eniyan (the deceased) was identified by one Eniyan Ede, to PW3, Francis Nkoli Nwachohor who performed the autopsy which established that the Alero died.

He stated that an analysis of the extra-judicial statement of the appellant and the evidence of the PW1, PW3 and statement of Alero Eniyan revealed that the crucial pieces of evidence linked the appellant with the murder of the deceased.

That the deceased’s statement shouting shortly after the acid was poured on her that “Edike don kill me” was a dying declaration made so soon as the acid was poured on her with the corrosive substance on her body. He cited Anekwe v State (1976) LPELR (486) p 1 at 11.

Learned counsel for the appellant contended that the confessional statement, Exhibit “P5” was admitted after a trial-within-trial. That the Illiterate Protection Law does not apply to confessional statements recorded in the course of investigation. He citedJohn v The State (2017) 16 NWLR (pt.1591) 304 at 335.

He stated further that appellant cannot now complain on the error

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on the face of the charge since he was not misled. He cited Egunjobi v Federal Republic of Nigeria (2013) 3 NWLR (pt.1342) 534 at 578-579.

In a charge of murder such as the one under discourse, the prosecution must lead credible evidence to establish the essential elements of the offence which are the following:
(a) That the deceased had died.
(b) That the death of the deceased was caused by the accused person and
(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 bodily harm was a probable consequence.
SEE ADEKUNLE VS. STATE (2006) 14 NWLR (PT. 1000) Pg. 717 @ Pg. 736-737.

On the first ingredient, PW1 ENIYAN EDE, the man that brought the deceased up testified as follows:
“I know Alero Eniyan, I will describe her as my daughter because I brought her up. Alero Eniyan is dead”.
SEE PAGES 54 OF THE RECORD OF APPEAL

At Pg.55 of the Record of Appeal, the same PW1 stated thus:
“The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died”.

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The corpse of Alero Eniyan (The deceased) was identified by one Eniyan Ede to PW3 Francis Nkaoli Nwacholor who performed autopsy. He testified as follows:
“…I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damages to the tissues in these areas that I have described”.

The learned trial judge in delivering the judgment stated thus:
“From the disceptation in this matter there is no contention with regard to the first ingredient, it is agreed on all sides that the deceased Alero Eniyan is dead”.

Clearly the Respondent has established that Alero Eniyan is dead. The next question is to find out whether it was the Appellant who killed the deceased?

PW1, Eniyan Ede who is the step father of the deceased stated as follows:
“At about 2.30am on the 6th day of May, 2009, I was sleeping in my room with my wife when I heard Alero shout “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” …we noticed as soon as we came out that the deceased skin from her face to her breast” and all over her body had started smelling because of the acid poured on her … While at

41

Aigbediae hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the Hospital to carry my pregnant wife who had been nursing her, by charging her …
The parents of the accused came to beg us to settle the matter by offering us financial settlement and I told them that money cannot buy the life of the deceased whom I brought up from the age of 4 before she died at about 17 years.
SEE PAGES 54 – 56 OF THE RECORD OF APPEAL.

And also during cross-examining, he said:
“…I was in my bedroom with my wife when I heard my daughter shout Edike don kill me oh, he pour acid for my body oh” I did not hear the voice of another person, but I heard the sound of someone running out of my house”.
SEE PAGE 58 OF THE RECORD OF APPEAL

PW3 Francis Nkaoli Nwachokor in Examination in Chief Stated:
“…Further examination of Alero revealed that she was aged about 16 (sixteen) years and she measured 4 feet and 11 inches in length. She was slim and dark in complexion. The

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body of Alero was bandaged in her head and her chest. Both things of Alero were bandaged. Further examination showed that she had corrosive chemical burns that affected her head, face, neck, check (anterporling) in front up to her upper abdomen. The back of Alero was also affected up to the level of the shoulder. Her entire right upper hand from the shoulder to the finger, her left arm that is from her elbow up, her two things. Further examination of her revealed that her skin on her head had shifted and the skull bone was visible. Her skin had also shifted in the neck and chest but were not revealing, the underlying bones. I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in these arrears that I have described”.

The statement of Alero Eniyan recorded on 13/5/2009 which was admitted and marked as Exhibit P1 through PW2, Police Constable Effiong Imeh is reproduced hereunder, viz:
“On the 06/05/2009 at about 32 hours as I was sleeping one Edike Eriebeli who is my boyfriend all of a sudden somebody from door of my room and open it by force, I later recognised from door of my room

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and open it by force, I later recognised his face to be my former boyfriend by name ‘Edike Enebeli’. He poured the raw acid on me from the jerrican and immediately he ran away. I started to shout for help, not knowing that my parents were padlock by the same boy. For the past three months that I left him, he heard that I wanted to wed another boy a week ahead and that was his grievance, the boy earlier threatened that he will kill me as I refuse to marry him…”
SEE PAGES 4 – 5 OF THE RECORD OF APPEAL

The Statement of the Appellant which was tendered through PW2 the Investigating Police Officer which was later admitted and marked Exhibit “P5” after a trial within trial clearly states as follows:
“l know one Alero Eniyan is my girlfriend. I have been into relationship with Alero Eniyan since year 2005 September, sometimes ago. Alero mother warn me from her daughter that I should stay away from her daughter, that she don’t want me to continue the relationship with her daughter that I should stay away from her daughter, that she don’t want me to continue the relationship with her daughter any longer, yesterday being 05/05/2009 at about 4.30pm. I

44

was in Oghara with my new girl friend call Magdalene, it was there in Oghara I bought 4 litres of acid on my way coming back, getting to Koko Junction there is no motor to carry me to Koko, there in Koko Junction. I have to decide and went to one Roman Emujeben who is living in Koko Junction there and deceived him that I am a student of University of Port and there is no means for me to get to Koko, it was there the man gave me his bicycle, then immediately as I got to Koko, move straight at 23 Housing Estate, Koroba Road, Koko where my girlfriend is living. Then when I get to the house, I padlock her parents bedroom. Then I broke the window of my girlfriend while she was sleeping. I poured the 4 litres of acid on her body. Why I poured the acid on her was that she was abusing me and secondly, I heard that she is planning to marry another person”.
SEE PAGES 6 AND 7 OF THE RECORD OF APPEAL

On the totality of the evidence adduced at the trial Court, the Court below held as follow:-
“The confessional statement of the Appellant, the dying declaration of the deceased and the testimony of the PW1 and PW3 as rightly found by the lower Court

45

established the other two elements of the offence”.

Indeed the pieces of evidence made available to the trial Court including the confessional statement of the appellant linked the murder of the deceased to the appellant as that is the only rational conclusion in the light of the strong and overwhelming evidence proffered by the prosecution witnesses without leaving out the statement of the deceased at the point of death.

On the third ingredient, the act of the appellant by pouring four litres of acid on the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence as happened in this case. See Amayo v State (2001) 18 NWLR (pt. 745) 251.
​Judging from the intentional act of injury committed, the probability of death resulting is high and there is no difficulty for a finding by the Court that the appellant intended to cause death or inflict serious bodily harm sufficient in the ordinary course of nature to cause death. It is settled in law the presumption that a man intends the natural and probable consequence of his acts. In the confessional statement, Exhibit “P5” the appellant admitted buying

46

acid at Oghara and when he returned to Koko, he collected a bicycle from one Romanus Emujebei with which he rode to the residence of the parents of the deceased, where she also resides. He stated further in the extra-judicial statement that after he entered the house, he padlocked the bedroom of the parents of the deceased and poured the four litres of acid on the body of deceased while she was sleeping. For a fact, the appellant intended grievous harm to the deceased hence he locked the bedroom of her parents to prevent help from getting to the deceased quickly enough. Therefore the appellant’s intendment is obvious.

The prosecution laid down a surfeit of evidence from which the prosecution proved the elements of the offence of murder beyond reasonable doubt and so the Court below was well positioned to affirm the decision of the trial Court in convicting the appellant.

Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike Don kill me, He pour acid for my body” can be interpreted as a dying declaration.
Section 40 (1) of the Evidence Act, 2011 provides: “40 (1) A statement made by a person as to the

47

cause of his death or as to any of the circumstances of the evidence which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery”.
It is gleaned from Section 40(1) of the Evidence Act that for a statement to qualify as dying declaration, the person making the statement must believe himself to be in danger of approaching death. The belief in the danger of approaching death is subjective not objective. SEEKING VS. THE STATE (2016) LPELR (40046) Pg. 1 @ Pg.58.
I agree with learned counsel for the respondent that the nature and gravity of the injury and the part of the body on which it inflicted ought to be considered in determining whether what the deceased said in relation to the cause of her injury from which she died later was dying declaration or not.
​It is not necessary to prove by expression of the deceased that the made the statement in fear of impending death. It would be inferred from the nature of the wound or cause of death

48

without further express evidence that the deceased believed she was dying. When the deceased was poured with four litres of acid on her body and she made a statement saying, “Daddy oh, Daddy oh, ‘Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body”. It is clear and unequivocal that the statement was made by the deceased in imminent fear of death and believing at the time she made the statement that she was going to die. Being taken to the Hospital after the act of acid bath by the appellant would give anyone hope of recovery, but that does not mean that the deceased did not believe she was not going to die. Thus, the statement made by the deceased to PW1 is a dying declaration and it was properly admitted in evidence by the trial Court as EXHIBIT “P1″. The raison d’etre for the principle of dying declaration as stated by Eyre C.B in the old English case of R. vs. WOODLUCK (1789) I leach 500 @ 502 is as follows:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to

49

falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn so awful, is considered by the laws as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice”.
The deceased’s statement shouting shortly after the acid was poured on her that “Edike don kill me” was a dying declaration made so soon as the acid was poured on her and as she was smarting from the excruciating pains of the corrosive substance on her body. In such circumstances, the declaration was a true reflection of what was happening to her and was therefore part of the res gestae.
SEE ANEKWE VS. THE STATE (1976) LPELR (486) Pg. 1 @Pg. 11

​The Lower Court was correct in its summation when it held as follows:-
“The lower Court held that the declaration of the deceased as testified to by the PW1 was admissible as a dying declaration. I am in complete agreement. The belief of a person that he is in danger of approaching death is subjective and not objective. The statement of the deceased was made when she believed that she was approaching death as a result of

50

the acid which was poured on her on which caused her death. The statement was admissible against the Appellant in the trial where the cause of death of the deceased was in issue.”

On the admissibility of “P5” I refer to Section 28 of Evidence Act. Section 28 of the Evidence Act, 2011 defines a confession as:
“Any admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
SEE NWAKOYE VS. STATE (2016) ALL FWLR (pt. 850) @ Pg. 1211 Ratio 6.

On the 31st day of October, 2011, the trial Court commenced a trial within-trial after the counsel for the appellant objected to the admissibility of the statement and the attestation form on the ground that they were signed under duress. On the 6th day of December, 2011, the trial judge delivered its ruling wherein he held that from the totality of all the above that exhibit “X” was voluntarily made by the accused. See page 76 and 77 of the Record of Appeal.

Furthermore, the lower Court at pg. 191 of the Record of Appeal after reviewing and evaluating the evidence on record held thus:
“(Sic) in the record is the fact that

51

the lower Court applied the relevant tests to ascertain the weight to be attached to the confessional statement, Exhibit P5 and found other credible evidence and circumstances which made it probable that the confession was true before proceeding to act on the same. The lower Court stated as follows on pages 112 – 113 of the records”.
“I have carefully applied the tests laid down in UBIERHO VS. STATE Supra to Exhibit “P5” and I find the following to be established. In exhibit “P5”, the accused that on 5th of May 2009 he bought 4 litres of acid at Oghara and when he got to Koko, he rode to the residence of the deceased at No. 23, Housing Estate Korogbe Road Koko. Upon arrival at No. 23, Housing Estate, he padlocked the bedroom of her parents, broke the window of Alero Eniyan (now deceased) whom he referred to as his girlfriend and bathed her with the four (4) litres of acid. The reason for this dastardly act of the accused is that the deceased was abusing him and he heard that she was planning to marry another man…
All of these pieces of evidence establish that the confession in Exhibit “P5” is time.
“I am in complete agreement. The

52

evidence on record contained facts as highlighted by the lower Court to show that the confession is true. The Appellant had the opportunity to committing the offence, the confession which was consistent with other facts ascertained and proved is possible and was true as far as can be tested. To that extent that confession was corroborated and admitted the essential elements of the offence charged. The confession is the best evidence that can be produced”.

It is trite in law, that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict.
SEE OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) pg. 351 @ PG. 387.

​As a matter of fact, exhibit “P5” the confessional statement made by the Appellant from which he tried to retract at the trial Court but failed to achieve that purpose gave a graphic account of how the plot to bath the deceased with acid was hatched, the reason behind the act and the surreptitious manner it was finally executed. Thus, we submit finally

53

on this score that Exhibit “P5” the, confessional statement of the Appellant was admissible in evidence.

Appellant counsel at pg.6, paras 2.15 stated that Exhibit “P5″ (the appellant confessional statement failed to comply with the mandatory requirements of the provisions of Section 3 of the Illiterate Protection Law of Delta State; Laws of Delta State of Nigeria, 2006. We submit that a statement made to a police officer by an accused person in the course of investigation does not fall within the protection under the Illiterate Protection Law, as such statement does not involve the civil rights and/or obligations of either the accused person or the police officer. A statement obtained from a person accused of a crime or witnesses thereto is not equated with a document that confers an interest in the writer. The statement so obtained forms part of the evidence of the prosecutor which has the burden of proving its case beyond reasonable doubt. To put it straight, the Illiterates Protection Law did not apply to the confessional statement of the appellant recorded in the course of investigation. See John v The State (2017) 16 NWLR (pt. 1591) 304 at 335.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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In respect to the purported of the Attestation form, it is obvious from it that the appellant signed it by thumb printing in the form, wherein the appellant stated that he was cautioned, that he understood the caution and it was after that caution that he made the statement which was reduced into writing, which was read over to him and again he put his thumb print impression on the statement was made voluntarily and on his own free will.

In regard to the failure of the prosecution to prove the date of death as contained in the charge. It has to be pointed out that by virtue of Section 166 of the Criminal Procedure Act, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was infact misled by such error or omission. Therefore since the appellant failed to show that he was misled by what he perceived as a defect in the charge read to him at the trial, it is too late to complain about the defect during appellate proceedings. I place reliance on Egunjobi v Federal Republic of Nigeria (2013) 3

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NWLR (pt 1342) 534 at 578-579; Agbo v State (2006) 6 NWLR (pt 977) 545.
The situation on ground is covered by Section 167 of the Criminal Procedure Act which provides thus:-
“Any objection to a charge for any formal defect on the fact thereof shall be taken immediately after the charge has been read over to the accused and not later”.

In this case, the charge clearly stated the date the deceased died as the 6th May, 2009 (the date the Appellant poured acid on the deceased) instead of the 22nd July, 2009 when the deceased finally gave up the ghost.
Hear “PW1” Eniyan Ede at Pg. 54 of the Record of Appeal:
“At about 2:30am, on the 6th day of May, 2009 I was sleep in my room with my wife when I heard Alero shout”. Daddy oh, Daddy oh, mummy oh, mummy oh, Edike don kill me, he pour acid for my body”.
At Pg. 56 he further stated:
“The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died…”
ON AUTOPSY OR POST MORTEM:
PW3 Francis Nkwoli Nwachokor gave evidence thus:
“l am a consultant pathologist and a medical practitioner in the employment of the

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Hospital Management board, Delta State attached to the Central Hospital, Warri…
As a pathologist, the duties within my purview are physical pathology which deals with tisons diagnosis, morbid, anatomy and forensic pathology which has to do with autopsy, which is called corona system. I carried out an autopsy relating to the matter I was called upon to testify in connect with one Alero Eniyan on the 22nd of June, 2011…
I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in these areas that I have describe”.
SEE PAGES 78 – 790 OF THE RECORD OF APPEAL

Learned counsel for the appellant contended outside what was contained in the Record that there was no autopsy or post mortem conducted.
Thus, the Lower Court had no doubts in mind when it held thus:
“The lower Court then conclusively founds as a fact and held as follows at Pg. 113 of the Records; “I therefore find from the statement of the accused in exhibit “P5″ and the pathologist beyond reasonable doubt that the act of the accused by which he poured acid on Alero Eniyan caused the death of the

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deceased”.
SEE PAGE 192 OF THE RECORD OF APPEAL

On the confessional statement, PW2 Effiong Imett the investigating Polite Officer in this case gave evidence at Pg. 65 of the Record of Appeal:
“I recorded the statement of the accused at Koko Police Station under caution. The accused volunteered his statement to me under caution. I recorded the statement of the accused for him in English Language…
This is the statement I recorded from the accused. When I recorded the statement of the accused, I discovered that the statement of the accused was confessional

Again, he stated:
“l can recognize the statement I recorded from the accused and the attestation form while I signed as a witness”.

Thus, the PW2 in his examination in chief constantly used the words, “the statement I recorded” “l recorded the statement” “when I recorded” “l can recognize the statement I recorded” more than the use of the word “statement I obtained’

ON EXHIBIT “A1” THE STATEMENT OF THE DECEASED
The lower Court conclusively found as a fact and held as follows at Pg. 187 of the records:
“It seems apparent that at the time the deceased

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made the extra-judicial statement while on admission in the Hospital, she did not seem to think herself in danger of approaching death as a result of which she asked the question “whether she will survive in this condition”. Consequently the lower Court rightly held that the said exhibit “P1″ was not admissible as a dying declaration”.

There is abundant evidence from which the concurrent findings of the two Courts below were made and there being no perversity or misapplication of law, I cannot disturb them. The conclusion is that there is no merit in the appeal and I dismiss it. I abide by the consequential orders made.
Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of perusing before now a draft of the lead judgment just delivered by my learned brother, Adamu Jauro, JSC and I entirely agree with his Lordship that the appeal lacks merit. I adopt the totality of his Lordship’s reasons advanced therein and will make only a few comments in appreciation of the judgment.

The position of the law is trite that the strongest evidence establishing the guilt of an accused is his own confessional statement as long as the Court

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is satisfied of the truth of the confession and in that satisfaction lies the requirement of the fulfilment of the veracity test. That is to say that the statement is corroborated by other pieces of evidence outside the confessional statement. See Ikemson v State (1989) 3 NWLR (pt. 110) 455; C.O.P. v Alozie (2017) 7 NWLR (pt. 1565) 368; FRN v Barminas (2017) 15 NWLR (pt. 1588) 177.

In the instant case, the Appellant in his extra-judicial statement admitted in evidence as Exhibit P5 gave a graphic detail of how he poured acid on the deceased. His statement was corroborated by the evidence of PW1 who is the victim’s stepfather and PW3 who conducted the autopsy. PW3 maintained that the victim died from “overwhelming corrosive chemical burns.”

I hold the view that the Court was right to admit and rely on the Appellant’s confessional statement in convicting him. The prosecution sufficiently proved the charge of murder against the Appellant beyond reasonable doubt and this Court has no reason to interfere with the concurrent findings of the two Courts below.

In view of these few comments and for the more elaborate reasons adumbrated in the lead

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judgment of my learned brother; I also see no merit in this appeal. It is hereby dismissed by me.
Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Adamu Jauro, JSC, has accorded me the privilege of a preview of the judgment just delivered. I concur with the reasoning reached therein, to the conclusive effect that the instant appeal is devoid of merits.

Hence, having adopted the said reasoning as mine, I too hereby affirm the concurrent judgment of the Court of Appeal, Benin Judicial Division delivered on June 6, 2016 in Appeal No. CA/B/239C/2013.

Accordingly, I abide by the consequential order thereby affirming the conviction and sentence of the Appellant by the Court below for the offence of murder, punishable under Section 319(1) of the Criminal Code CAP. 48 Volume II Laws of the defunct Bendel State as applicable to Edo State.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice ADAMU JAURO JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

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Appearances:

OLUKUNLE EDUN ESQ., with him, GODSPOWER EROGA, Esq. For Appellant(s)

C.O. AGBAGWU ESQ., Deputy Director, Department of Appeals, Ministry of Justice, Delta State For Respondent(s)