GODWIN I. USEN v. THE STATE (2012)

GODWIN I. USEN v. THE STATE

(2012)LCN/5702(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of December, 2012

CA/C/110/11

RATIO

EVIDENCE: PROVISIONS GOVERNING THE ADMISSIBILITY OF EVIDENCE

Restating the general position of the law, the admissibility of a piece of evidence in judicial proceedings, is governed by the provisions of the Evidence Act under which once a piece of evidence is relevant, it is admissible irrespective of how it was obtained. See SADAU v. STATE (supra) also reported in (1968) 1 ALL NLR, 124 at 125; TORTI v. UKPABI (1984) 1 SCNLR 214; FAWEHINMI v. NBA (No.2) (1992) 2 NWLR (105) 588 at 583; OYEDIRAN v. ALEBIOSU II (1992) 6 NWLR (249) 550 at 559. However, in the case of SUBERU v. STATE (2010) 8 NWLR (1197) 586, the Supreme Court at page 604 had cautioned that:-

“Relevancy is not the only yardstick or test for admissibility of evidence. A document may be relevant and still be excluded if there is in existence a law which renders it inadmissible.” PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: EFFECT OF AN INADMISSIBLE EVIDENCE

The law is also common knowledge that once a piece of evidence is inadmissible in law, it cannot be admitted in evidence on agreement or non objection by the parties or consent of the court. Even where such evidence was admitted in evidence, the trial court has a duty, to expunge it and not rely on it in its decision which the law requires to be based only on admissible evidence. See OKONJI v. NJOKANMA (1991) 7 NWLR (202) 131; HYPOLITE v. AGHAREVBA (1998) 11 NWLR (575) 598; OLAYINKA v. THE STATE (2007) 9 NWLR (1040) 561; AGBI v. OGBE (2006) 11 NWLR (990) 65. Where the trial court fails or omitted to expunge such inadmissible evidence and used it in its decision, this court has the power to expunge it from the record notwithstanding that the counsel at the trial did not object to its admissibility. See ONOCHIE v. ODOGWU (2006) 6 NWLR (975) 65; DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (979) 382; OLAYINKA v. STATE (supra). PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: NATURE OF ADMISSIBILITY OF A PIECE OF EVIDENCE

The law is well known that the admissibility of a piece of evidence and the weight to be attached to it in the assessment or evaluation of the evidence before a court are two distinct and separate issues governed by different principles of law. Like I stated before now, admissibility is generally governed by the law while the weight or probative worth of a piece of evidence is governed by its credibility, probability or conclusiveness of the issue for which it was admitted. A piece of evidence may be admissible in law and admitted at trial, but when put through the crucible of evaluation and assessment by the court, it may be found not to be of much or any probative value or worth in the proof of the point or issue in respect of which it was admitted. See OKONJI v. NJOKANMA (supra); I.M.B. v. DABIRI (1998) 1 NWLR (533) 284; BURAIMO v. KARIMU (1999) 9 NWLR (618) 310. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS

The law is also firmly established that in a criminal trial, the burden of proving the guilt of an accused person beyond reasonable doubt lies throughout the trial on the prosecution and it never shifts. Even where an accused person in his extra judicial statement to the police admitted or confessed to the commission of the offence with which he was accused, the prosecution is not relieved of the burden. See IFEJIRIKA v. STATE (1999) 3 NWLR (593) 59; ANI v. STATE (2003) 11 NWLR (830) 142, IGABELE v. STATE (supra) also reported in (2006) 6 NWLR (975) 100.

The above principles of law evolved from the constitutional presumption of innocence in favour of a person accused of the commission of a crime or criminal offence in Nigeria since our independence. In the current Constitution of 1999 (as altered) it is provided for in Section 36(5) which says that:

“36. (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF A PERSON

In law, the guilt of a person accused and charged with the commission of a crime or criminal offence before a court of law can be proved by any of the following:-

a) confessional statement of the accused person which passes the requirement of the law, or
b) direct evidence of eye witnesses who saw or witnessed the commission of the crime or offence, or
c) circumstantial evidence which links the accused person and no other person to or with the commission of the crime or offence charged. See LORI v. STATE (1980) 8 – 11 SC, 81; (1980) 12 NSCC, 209: EMEKA v. STATE (2001) 32 WRN 37, (2001) 6 SCNJ, 259; (2001) 14 NWLR (734) 666; IGABELE v. STATE (supra); JOSUA v. STATE (2010) 1 WRN 41 at 46. PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: REQUIREMENTS FOR PROVING THE OFFENCE OF MURDER

On the 27/1/12, in the case of BRIGHT v. THE STATE (2012) 1 – 2 MJSC, 35 at 61, the Supreme Court had restated what the prosecution must prove in order to sustain a charge of murder. The apex court had said that-

“In a charge of murder, the prosecution is required by law to prove the following:

a) that the death of a human being actually occurred;
b) that such death was caused by the accused;
c) that the accused person’s act resulting in the death of the human being was done with the intention of causing death or grievous bodily harm;
d) that the accused know that death would be a probable, not just likely, consequence of his act. See THE STATE v. DANJUMA (1996) 8 NWLR (Pt.469) 660 at 668; KADA v. THE STATE (1991) 22 NSCC (Pt. II) 592 at 598.”

See also OKORO v. STATE (1988) 12 SCNJ, 191; OGUNDIYAN v. STATE (1991) 3 NWLR (181) 519; ALGUOREGHIAN v. STATE (2004) 1 SC (Pt.1) 65; APUGO v. STATE (2006) ALL FWLR (341) 1253.

The law is also settled by the above authorities and more, that all the aforementioned elements or ingredients of the offence of murder must be established or proved beyond reasonable by the prosecution and where any of them was not so proved to the satisfaction of the trial court, then the offence would not have been proved beyond reasonable doubt and the accused person is entitled to be acquitted of the charge against him. See IGURU v. STATE (2002) 9 NWLR (771) 90; UBANI v. STATE (2003) 18 NWLR (851) 224; ADARA v. STATE (2006) 9 NWLR (984) 155. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

GODWIN I. USEN – Appellant(s)

AND

THE STATE – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was charged before and convicted by the Cross River State High Court sitting at Calabar for the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. C16, Vol. 111, Laws of Cross River State 2004. The charge was as follows:

“That you Godwin Ibanga Usen ‘m’ on the 2nd day of June, 2007 at No.45 Jebs road, Calabar in the Calabar Magisterial District did unlawfully killed one Juliet Godwin Usen ‘f’ by cutting her with a matchet and thereby committed an offence punishable under section 319(1) of the Criminal Code Cap. C16 Vol. III Laws of the Cross River State of Nigeria, 2004.”

The facts from which the charge arose as contained in the record of appeal are that the Appellant had sharpened a matchet on the 1/6/07 which he later in the night of the same day and early hours of the following day, used and inflicted several injuries on his wife, one Juliet G. Usen with whom he slept in the same bed and she died on the spot.

Dissatisfied with his conviction and death sentence by the High Court, the Appellant filed a notice of appeal containing three (3) grounds of dissatisfaction against the decision on the 14/2/11.

For a full appreciation of the plenitude of the complaint against the decision of the High Court, it is expedient to set out the entire grounds as contained in the notice of appeal. They are thus:-

GROUND ONE:

The learned trial judge erred in law when he convicted the accused even when the prosecution did not prove the guilt of the accused beyond reasonable doubt.

PARTICULARS OF ERROR

1. To sustain a conviction on murder charge, the prosecution must prove the guilt of the accused beyond reasonable doubt. Idiok v. State (2008) 4 KLR (pt.252) p.1589.

2. The prosecution failed to meet the required standard expected in criminal trials, yet the trial court convicted the accused on mere assumption of guilt.

3. Kalu another suspect who was alleged to have sharpened the matchet allegedly used by the accused to commit the crime was never called as a witness.

4. The blood stained matchet was not subjected to any forensic test as to link the blood to that of the deceased.

5. There was no evidence to show how the police were invited to the scene of the alleged crime.

GROUND TWO:

The learned trial judge erred in law when he admitted in evidence, evidence which is inadmissible in law.

PARTICULARS OF ERROR:

1. The accused denied making Exhibit ‘4A’ & ‘4B’ to the police.

2. The trial Judge failed to properly evaluate these exhibits as to warrant their admission or otherwise.

GROUND THREE:

The learned trial judge erred in law when he convicted the accused on evidence materially contradictory and unsupportive of the prosecution case.

1. The criminal law gives the benefit of doubt to the accused person when there are discrepancies on the testimony of the prosecution witness. See Orji v. State (2008) 4 KLR (pt. 253) p. 1843, the prosecution acknowledged these contradictions but treated them as minor discrepancies.

2. The evidence of PW2 left much to be desired. PW2 who slept in another room said in evidence that he first heard the mother shouting for help and that her husband had killed her. PW2 also said that it was raining and that he went back to sleep, only to somersault and heard somebody who have been killed again making effort to resist the cutting of her hand by the accused.

3. The accused allegation against PW1 was neither investigated by the police nor the trial court, yet PW1 testimony was accepted hook, line and sinker by the court. Annabi v. State (2008) KLR (pt. 254) p. 1957.”

The briefs of argument filed by the learned counsel for the parties to the appeal as required by the Rules of the court were adopted at the hearing of the appeal on the 15/10/12 and we were urged therein to uphold their respective submissions. The Appellant’s brief was filed on the 7/3/12 pursuant to the court’s order while the Respondent’s brief was filed on the 5/4/12. Mr. Linus O. Abang, Esq., learned counsel who settled the Appellant’s brief had raised 3 issues at paragraph 3 of the unpagenated Appellant’s brief as follows:-

i) Whether the guilt of the appellant was established beyond reasonable doubt as laid down by the law before he was convicted for murder and sentence to death?

ii) Whether there was no miscarriage of justice when the learned trial judge admitted inadmissible evidence and used same to convict the Appellant?

iii) Whether the learned trial judge misdirected himself to hold that the doubt created by the materially contradictory evidence of the prosecution should not be in favour of the Appellant?

As can easily be observed, the learned counsel did not, as required by diligent practice of brief writing, indicate from which of the grounds of the appeal the above issues were each distilled. It would be simplistic to assume that merely because there are 3 grounds of appeal, the issues were derived from the said grounds. The issues formulated in the Appellant’s brief were adopted in the Respondent’s brief which was settled by the Hon. Attorney General and Commissioner for Justice, Cross River State, Mr. Attah Ochinke, Esq.

Looking at the grounds of appeal closely, the issues raised for determination would appear to be derivable from them and so I would consider the arguments canvassed by the learned counsel in the determination of the appeal. However, the Appellant’s issue No. i appears to question generally, the evidence of the prosecution and the assessment by the High Court in its decision while issues (ii) and (iii) question specific areas of the evidence adduced by the prosecution at the trial. In the determination of the appeal therefore I intend to consider issues (ii) and (iii) first before the issue (i) which is omnibus.

The issues were argued as issues 1, 2 and 3 in the Appellant’s brief, so I would begin with issue 2:

“Whether there was no miscarriage of justice when the learned trial judge admitted inadmissible evidence to convict the accused/Appellant.”

The submissions for the Appellant on the issue are that the matchet, Exh. 1, used by the Appellant to commit the murder and the blood stained bed were not subjected to any forensic test to confirm that the blood on them was that of the deceased. Also that an expert did not testify to support the autopsy report and so the Exhibits should not have been admitted. It was the further submission by learned counsel for the Appellant that the Appellant had denied making the statements admitted as Exhibits ‘4A’ and ‘4B’ and that the Appellant’s alibi that he escaped and took refuge behind the fence when some men attacked the deceased, was not investigated. The cases of UKOH v. STATE (1971) 1 NWLR 140 and ABDULIAHI v. STATE (2008) 5 KLR (255) 2187 were referred to on duty of the court to consider defences implicit in evidence though not specifically raised and on failure by witness to mention the name of the accused whom, he knew before the commission of the crime. We were urged by learned counsel to hold that the trial judge was wrong and “to hold otherwise in favour of the appellant.”

For the Respondent, it was submitted that PW3, the doctor who carried a post mortem examination of the deceased’s body had stated the cause of death to be consistent with an attack with a sharp object such as a matchet and that where death was instantaneous or proximate with its cause, as in the present appeal, the forensic test of the blood stains on the instrument used in causing the death is not material or necessary. It was argued that the exhibits admitted without objection, were admissible in evidence because they are relevant, reliance was placed on SADAU v. STATE (1968) NMLR 208 at 209. The learned Attorney General had further submitted that the fact that the Appellant had said he had taken refuge behind the fence is not a plea of alibi in law because the prosecution was not expected to investigate it from the banana trees the Appellant said he took refuge with. He said the evidence of PW1 and PW2 had fixed the Appellant at the locus criminus.

On Exhibits ‘4A’ and ‘4B’, it was submitted that although the Appellant retracted or denied making them, there is nothing sacrosanct about the retraction and that they were in law, admissible and rightly admitted in evidence and used by the High Court in convicting the Appellant. The cases of DIBIE v. STATE (2007) 9 NWLR (1038) 30 at 39; NEMI v. STATE (1994) 23 & 24 LRCN, 111 and SOLOLA v. STATE (2005) NSCQR (Pt.1) 254 were relied on for the submission. In further argument, it was said that the High Court had considered the defences of provocation and self defence that may have been available to the Appellants and found that they did not avail him. Pages 96 – 97 of the record of appeal were referred to on the issue. Lastly, it was submitted that both PW1 and PW2 had mentioned, the name of the Appellant in their statements and evidence although the identity of the Appellant was not disputed. We were urged to resolve the issue against the Appellant and hold that there was no miscarriage of justice as all the evidence tendered by the prosecution was admissible in law.

“Relevancy is not the only yardstick or test for admissibility of evidence. A document may be relevant and still be excluded if there is in existence a law which renders it inadmissible.”

I have observed that from the submissions by the learned counsel summarized above, he did not say categorically that the Exhibits he mentioned were not admissible in law but only tried to attack their weight or probative value in the case against the Appellant. The law is well known that the admissibility of a piece of evidence and the weight to be attached to it in the assessment or evaluation of the evidence before a court are two distinct and separate issues governed by different principles of law. Like I stated before now, admissibility is generally governed by the law while the weight or probative worth of a piece of evidence is governed by its credibility, probability or conclusiveness of the issue for which it was admitted. A piece of evidence may be admissible in law and admitted at trial, but when put through the crucible of evaluation and assessment by the court, it may be found not to be of much or any probative value or worth in the proof of the point or issue in respect of which it was admitted. See OKONJI v. NJOKANMA (supra); I.M.B. v. DABIRI (1998) 1 NWLR (533) 284; BURAIMO v. KARIMU (1999) 9 NWLR (618) 310.

Due to the very serious nature of the charge for which the Appellant was convicted by the High Court, I would all the same consider whether the named Exhibits were admissible in law. The first Exhibit mentioned by the learned counsel is the matchet admitted as Exh. ‘1’. Now the matchet was emphatically identified by PW2 as the one used by the Appellant in the commission of the offence he was convicted of. The Investigating Police Officer, PW4, also identified it as the weapon recovered at the scene of the offence, it is consistent with the autopsy report on the deceased’s body and is supported by the evidence of PW1 who physically saw the deceased body at the scene and described the wounds thereon. Even the statements of the Appellant admitted in evidence as Exhibits ‘4A’ and ‘4B’, mentioned it. All these go to show that the Exhibit is directly relevant to the charge with which the Appellant was convicted. There is no suggestion that any law excludes the admission of such piece of evidence which is directly connected and relevant to the case against the Appellant. I should refer to the statement set out by the learned Attorney General in his brief, which was made in the case of SADAU v. THE STATE (supra) that:

“There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained.”

Similarly, in the case of ETUK v. STATE (1978) 1 NCAR, 56, it was held that:-

“In a criminal trial, any piece of evidence recovered in the house of the accused person even though in his absence, would be relevant to the case in so far as it was mentioned by a prosecution witness and as such it is admissible. The test is whether it is relevant to the matters in issue and if it is relevant, the court is not concerned with the method by which it was obtained.”

It is therefore clear that the matchet recovered at the scene and identified by unchallenged evidence, is directly relevant to the charge with which the Appellant was charged and admissible in law at his trial. The High Court was right to have admitted it in evidence. It may be recalled that the complaint by the learned counsel for the Appellant is that the exhibit was not subjected to forensic test to confirm that the blood on it was that of the deceased. I would say that the High Court had in its judgment found that the evidence of PW2 was not controverted or even challenged under cross examination by the Appellant. I have read the entire evidence of PW2 and would readily and with ease, agree with that finding by the High Court. The evidence including that of the witness was never challenged under cross examination and even by the evidence of the Appellant in defence wherein he only weakly denied that PW2 saw him with a matchet on the night of the incident and claimed that he had never held a matchet in his life. The evidence is that the deceased died on the spot after the Appellant had used the said matchet to inflict injuries on her and so it leaves no doubt that the blood stains on it was that of the deceased. The evidence is such that it renders any test, forensic or otherwise in order to determine whose blood was on the matchet, very unnecessary and immaterial in the case of the Appellant. It would have been different if the Appellant had successfully challenged whether it was indeed not the other matchet that the Appellant had used on the deceased on the fateful night. He did not do that at all. The evidence of the prosecution in respect of the matchet was cogent and remained credible throughout the trial and so the High Court was right to have ascribed probative value to it in its assessment or evaluation of the evidence before it. Factors that are usually taken into account by a court in the determination of the weight or probative value to be ascribed to a piece of evidence are:

a) admissibility of the evidence

b) relevance

c) credibility of the evidence

d) probability of the evidence in relation to the facts of the case

e) conclusiveness on the proved facts of the case.

See Mogaji v. Odofin (1978) 4 SC, 91, (78) NSCC, 275; Onwuka v. Ediala (1989) 1 NWLR (96) 182; Ogoala v. State (1991) 2 NWLR (175) 509; Osigwe v. Unipetrol (2005) ALL FWLR (267) 1525 at 1543.

The High Court had in its judgment considered the above factors in its assessment of the positive and unshaken evidence of PW2 in particular, in respect of the matchet which he saw the Appellant sharpened the day before the night of the incident, about which he had asked the Appellant what it was for and the same matchet he saw the Appellant used on the fateful night in the commission of the offence charged. Because the evaluation of the admissible evidence adduced at a trial is primarily that of the trial court which had the unique benefit of physically seeing and hearing the witnesses testify and observing their nuances in the witness box where that court unquestionably evaluates the evidence before it and justifiably appraises the facts to which the evidence relates, it is not open to an appellate court to interfere with the evaluation simply to substitute its own views for those of the trial court. It is only where and when the trial court fails to evaluate such evidence properly or at all that an appellate court can interfere or intervene and re-evaluate the evidence otherwise the appellate court has no business in interfering with the findings of the trial court on such evidence. See Bashaya v. State (1998) 5 NWLR (550) 351; State v. Ajie (2000) 7 SC (1), 24; Ogoala v. State (supra); Solola v. State (2005) 5 SC (1) 135; Fagbenro v. Arobadi (2006) ALL FWLR (310) 1575.

The learned counsel for the Appellant had also said that because an expert witness was not called to give support to the autopsy report admitted as Exhibit ‘3’, it should not have been admitted. He did not however mention any authority, statutory or judicial, which requires that post mortem examination conducted on a dead body by a medical doctor and in respect of which he testified and identified the report he wrote thereon, must or even needs to be supported by an ” expert witness ” before it can be admitted in evidence. I know of no such authority particularly in cases where the autopsy report related to the dead body in respect of which an accused was charged with murder. The autopsy on the deceased wife of the Appellant, whose body was identified by her junior sister who knew her before her death, to the doctor, unequivocally named her as the person whose body was examined. There was no suggestion or doubt whatsoever that the autopsy report was in respect of any other body than that of the Appellant’s deceased wife in respect of which he was charged. The report was in the circumstances not only directly, but compellingly relevant to the charge against the Appellant. It is in law relevant and the High Court was right to have admitted and used it in its decision.

I should also point out that the credibility of the post mortem report was never questioned or challenged during the cross examination of the author, i.e., the Doctor, who testified at the trial as PW3. In fact, the post mortem report was admitted without any objection from the counsel who represented the Appellant at the trial and the oral testimony of PW3 was substantially the same with the contents of the post mortem report that was admitted in evidence. Being unchallenged, credible and sufficiently conclusive of the cause of death of the deceased Appellant’s wife, the High Court was right to have ascribed weight to it and acted on it in its decision. The post mortem report did not need or require any support from “an expert witness” for it to be either admissible in evidence or be accorded probative value in the assessment of the evidence adduced at the trial. I am aware of authorities such as the case of Agbein v. State (1969) NMLR 129 where it was held that a doctor’s report is inadmissible during examination in chief of the doctor but could be used to refresh his memory and the defence would then be entitled to see it and cross examine on it. In the Appellant’s case, since the oral testimony of the doctor was the same as the content of the medical report admitted in evidence, the High Court was right to have used the evidence of the cause of death of the deceased given by the doctor, which happened to be contained in the medical report, in its judgment.

Lastly on the issue, the learned counsel had said that because the Appellant had denied making any statement to the police, thereby retracting the statements in Exhs. ‘4A’ and ‘4B’, the High Court should not have admitted and relied on them in its decision. Learned counsel as stated before, did not say that the statements were not admissible in law because the Appellant had denied making them but the law is beyond argument, because it is firmly established, that the fact that an accused person denied ever making or retracking statements made in the course of investigating the offence with which he was charged, does not render them inadmissible in evidence. I have read the statements made by the Appellant in respect of the offence with which he was charged and which were admitted in evidence at the trial as Exhs. ‘4A’ and ‘4B’. Put simply, the combined effect of the two (2) statements is an admission by the Appellant, stating or suggesting the inference that he committed the offence for which he was arrested and later charged with before the High Court. Under the provisions of the Evidence Act, Section 27 of the 2004 Act and section 28 of the 2011 Act, the two (2) statements amount to a confession to the commission of the offence by the Appellant and so are what is ordinarily called and known as confessional statements in criminal trials. See GIRA v. STATE (1996) 4 NWLR (443) 375. Only a few months ago, the Supreme Court in the case of OSENI v. STATE (2012) 2 MJSC (Pt. II) 123 at 148 had restated the law on the effect of the retraction of a confessional statement by an accused person, such as is the case of the Appellant, when it said:

“It is the law that a retraction of a confession does not ipso facto render the confession inadmissible. R. v. John Agangan Itule (1961) ALL NLR 462 (FSC) wherein Brett, Ag. CJF held that “a confession does not become inadmissible merely because the accused person denies having made it and in this respect, a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. R. v. Sapele & Anor. (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”

See also ASANYA v. STATE (1991) 3 NWLR (180) 422; IKPO v. STATE (1996) 1 NWLR 59; IHUEBEKA v. STATE (2000) 4 SC (Pt.1) 203; IDOWU v. STATE (2000) 7 SC (Pt.11) 50.

In law therefore, the Exhibits ‘4A’ and ‘4B’ were not rendered inadmissible simply because the Appellant denied ever making them or that he retracted them in open court at the trial. The High Court was in the circumstance on firm terrain of the law and so right to have admitted them in evidence.

Coming to the weight to be attached a retracted confessional statement by an accused person, as in the Appellant’s case, the Supreme Court has laid down the guidelines in the case of OSENI v. STATE (above) at pp. 150 – 3 and 169 relying on its earlier decision. The apex court had said that:-

“On the weight to be attached to a confessional statement whether retracted or not retracted, the tests are as laid down in R. v. Sykes (1913) 8 CR App. R. 233 approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30. These are the questions a Judge must ask himself on the weight to be attached to a confessional statement:

1. Is there anything outside the confession to show that it is true?

2. Is it corroborated?

3. Are the relevant statements made in it of facts, true as far as they can be tested?

4. Was the prisoner one who had the opportunity of committing the murder?

5. Is his confession possible?

6. Is it consistent with other facts which has been ascertained and have been proved?

Whether a conviction based on a confessional statement will be upheld or not will depend on whether or not the confessional statement passed satisfactorily the six tests listed above.”

See also DAURA v. STATE (1980) 8 – 11 SC, 236 UDOFIA v. STATE (1984) 12 SC, 139; AKPA v. STATE (2007) 2 NWLR (1019) 500; URAGBO v. STATE (2007) 6 NWLR (1031) 606. In the present appeal, the unchallenged and cogent evidence of PW2 and the positive and uncontroverted evidence of PW1, which are outside the confession by the Appellant, amply and undoubtedly show that it was true and thereby provide the requisite corroboration to its truth. The confession by the Appellant and the facts and the evidence by the above named witnesses leaves no reasonable doubt that the Appellant not only had the opportunity to, but in fact it was he and no other person that committed the offence with which he was charged. The other facts stated and the evidence given by the PW3, PW4 and PWs are consistent with the confession by the Appellant which manifestly make it not only possible but probable in the circumstances of the case. All the guidelines set out above by the apex court have been fully and completely, in my view, met in respect of the Appellant’s confession in Exhibits ‘4A’ and ‘4B’. Because there was no allegation by the Appellant that the statements were not freely and voluntarily made, as borne out by the record of the appeal, the direct and positive confession by him has been satisfactorily proved before the High Court beyond reasonable doubt and it was right in law to have accorded it the deserved weight and probative worth in its evaluation of the evidence adduced by the prosecution at the Appellant’s trial. That court was also right to have relied on it along with the other pieces of evidence in its decision convicting the Appellant for the offence he was charged with. Perhaps I should also say that because the confession has been proved, as required by law, it is alone, sufficient to warrant and support the conviction of the Appellant for the offence he was charged with. See Ekpenyong v. State (1991) 6 NWLR (200) 683; Akpan v. State (1987) 5 SCNJ 112; Edhigere v. State (1996) 8 NWLR (464) 1; Ihuebeka v. State (2000) 4 SC (1) 203; Alarape v. State (2001) 14 WRN 1.

Having acted in accordance with the principles of law to admit and evaluate the named pieces of evidence under this issue, no miscarriage of justice was occasioned by the High Court in so doing.

In the result, I find no merit in submissions by the learned counsel for the Appellant on the issue which I, for that reason, resolve against the Appellant.

The Appellant’s next issue is: “whether the learned trial judge misdirected himself to hold that the doubt created by the materially contradictory evidence of the prosecution should not be in favour of the Appellant.”

Although it is unusual, due to the brevity of the submissions by the learned counsel for the Appellant on the issue, I can afford to and it is expedient to set them in full as contained in the Appellant’s brief. The submissions are as follows:

i. Whether learned trial judge misdirected himself when he failed to hold the material contradictions in the evidence of PW1 and PW2 in favour of the Accused/Appellant.

ii. PW1 and PW2 contradicted each other in their evidence with regards to the dying declaration of the deceased. While PW1 alleged that much later in the night he heard the deceased called him “Bro Eddie”, “Bro Eddie”, “Bro Eddie”, my husband has killed me” which he heard twice (pages 52 & 54 of the records). While on the other hand, PW2 said he heard the deceased shouting “Please help me, my husband has killed me, please help me” (Page 61 of the records). PW2 identified the voice as that of his mother (deceased).

iii. However, in both situations (PW1 & PW2) heard the shout twice. The first time, they slept on, only to wake up on the second time. Neither explained the interval which they woke up the second time of hearing the deceased shout for help.

iv. In another instance, both PW1 & PW2 admitted that the night was dark because there was no NEPA light. Yet PW1 claimed he saw a lump of blood on the leg of the accused (page 53 of the records). No mention of whether PW1 or the Accused/Appellant was using either a lantern, torchlight or any form of light. See Abdullahi v. State (supra) at held 1: where the court said concerning the need to properly identify the accused person.

v. PW1 also said, he met the Accused and the two children at the Accused/Appellant’s veranda when he came out of his (PW1) house (page 52) but PW2 rather said he (PW2), his younger sister and PW1 were talking outside when the Accused/Appellant heard them and then came out to meet them (page 62).

vi. We submit all these contradictions are material to the determination of this case. It is trite law that where there is a doubt in evidence as in the instant case the doubt is resolved in favour of the accused person, unfortunately the learned trial judge failed to do so. It is the duty of the Court not to speculate on evidence and must not rely on inconsistent evidence.

See Igabec v. State (2006) 5 LRCNCC Page 32 held 2 & 3

Held 3: Indeed for any conflict or contradiction to be fatal to the prosecution case, it must be substantial and fundamental to the main issue.”

For the Respondent, it was submitted that the differences mentioned by the learned counsel for the Appellant were minor discrepancies which do not amount to material contradictions in the evidence of the witnesses; PW1 and PW2. The cases of IKEMSON v. STATE (1989) 1 CLRN 1 and IGABELE v. STATE (supra) were cited on what a material contradiction is and when it will be fatal to the prosecution’s case. We were urged to resolve the issue against the Appellant.

Now, a piece of evidence is said to contradict another in law, when it affirms the opposite of what the other evidence has stated. Two pieces of evidence contradict one another when they are themselves inconsistent on material facts and not when there is just a minor discrepancy between them. Contradiction is therefore not only the lack of agreement between facts related by two people, but material conflict in the facts stated by them. See GABRIEL v. STATE (1989) 5 NWLR (122) 451, (89) 12 SCNJ, 33; OGOALA v. STATE (1991) 2 NWLR (175) 509; AKPAN v. STATE (1991) 3 NWLR (182) 646; AGBO v. STATE (2006) ALL FWLR (309) 1380; IDIOK v. STATE (2006) ALL FWLR (333) 1788.

For the principle of contradiction of the evidence of witnesses to apply in an appeal, it must be shown:-

a) that there is material conflict or inconsistency,

b) that the trial court failed to advert to the conflict or inconsistency in its decision, and

c) that the conflict or inconsistency must be such as is on material points of facts stated by two different witnesses as to make the evidence unreliable. See ENAHORO v. QUEEN (1965) 1 ALL NLR 121; AKINSULE v. STATE (1972) 5 SC, 72; IBE v. STATE (1992) 6 SCNJ (Pt. II) 172 AGBO v. STATE (supra).

In the absence of the above factors, differences in facts stated by two people in the form of evidence only amount to discrepancy which occurs when a piece of evidence contains minor differences in details or stops short of all the details in another piece of evidence of the same facts. OMONGA v. STATE (2006) ALL FWLR (306) 930; GABRIEL v. STATE (supra), AGBO v. STATE (supra); DAGAYYA v. STATE (2006) ALL FWLR (308) 1212. In the case of QUEEN v. ABELABU (55 – 56) WRNLR (Pt. III) 112, it was held that:-

“the absence of any discrepancies in testimonies of witnesses is the usual accompaniment of a concocted story. Imperfection in human reflection is quite normal.” See also IKEMSON v. STATE (supra); AGBO v. STATE (supra).

The law is also settled that when the court finds that there are material contradictions in the evidence of the witnesses for the prosecution, their evidence would lack the credibility for reliability and would result in the failure to prove the charge beyond reasonable doubt as required by law. Such contradiction/s would be fatal to the prosecution’s case and the accused would be entitled to an acquittal order. See NASAMU v. STATE (1979) 6 – 9 SC 153; NWOSU v. STATE (1986) 2 NWLR (35) 6; AMADI v. STATE (1993) 11 SCNJ, 68; OPAYEMI v. STATE (1985) 2 NWLR (5) 101; OLADEJO v. STATE (1987) 3 NWLR (61) 364. That should be enough for the general restatement of the principles of law on the issue at this stage.

In the Appellant’s appeal, as may be seen from the submissions by the learned counsel, the complaint is that there are contradictions in the evidence of PW1 and PW2 in respect of:-

“(i) dying declaration by the deceased

(ii) who between the PW1 and Appellant met them first at the veranda they stood after leaving the parlour they were in when the Appellant committed the offence he was charged with.”

On the first one, (i) the complaint was that each of the witnesses did not explain the period between when they first heard the deceased’s shout that “my husband has killed me” and the 2nd time they each heard it again. However, each of the witnesses had explained the interval in the respective testimonies. PW1 had said in evidence-in-chief at page 52 of the record of the appeal: “On 1/6/2007 about 8:30p.m. I came back from work and met the deceased cooking. We greeted and I passed to my own apartment. There was no electricity so I sleep a little earlier, may be about 9.00-9.30p.m. Much later sometime in the night I heard the wife of the accused shouting out my name and saying bro. Eddie, bro. Eddie, my husband has killed me. She was shouting in Ibibio language. Bro. Eddie, Bro. Eddie, Ebemo oworow. Initially I thought I was dreaming and so I slept on. Much later she repeated the same shouting again. Then I woke left my room, went to the parlour picked up my key to open my front door. I opened my front.”

Unarguably, PW1 had said that when he first heard the shout of Appellant’s deceased’s wife, he was sleeping and thought he was dreaming and so went back to sleep, only to wake up when she shouted the second time. The PW1 therefore slept during the period or interval between the two shouts. That is borne out by the record. PW2 on his part had stated in his own evidence at page 61 of the record of the appeal that:-

“Around 1p.m. (night) I heard a shout “please help me, my husband has killed me, please help men she was shouting it so loudly. It was my mother. I now stood up. That night there was an heavy rainfall, so I was thinking that the shout was from outside. So I slept back. I now heard that shout again “please help me, please help me, my husband has killed me. I now stood up and went to my father’s bedroom.”

Here again, the witness had explained that he slept during the interval of the shouts for help by his late mother because he thought the first was from outside.

So the question that agitates itself here is, where are the contradictions in the evidence of the two witnesses on the dying declarations of the deceased as claimed by the learned counsel? It is not the case of counsel that the two (2) witnesses had stated different declarations, by the deceased which are contradictory or in conflict. Plainly, there is not even a discrepancy in the evidence of the witnesses let alone a material contradiction in stating the declarations they heard from the deceased, which I must say, is imagined by him. On the evidence of PW1 and PW2 of who met PW2 and his sister first at the veranda they stood after leaving their parlour, it has no value at all material to the proof of any of the elements of the offence with which the Appellant was charged. Wherever and whosoever had met PW2 and his sister after running away from the scene of the crime committed by the Appellant has no moment in the commission of the offence or its proof against the Appellant.

In any case, both PW1 and PW2 had said that PW2 and his sister at the material time were at the veranda of the Appellant’s house from where PW1 took them into his house to stay the rest of the fateful night. There is no contradiction, material or otherwise in the evidence of the two witnesses which would in any negative way affect the case of the prosecution. Again, the alleged contradiction was imagined and misconceived by learned counsel. There is absolutely no contradiction in the evidence of the witnesses on the point to create a reasonable doubt from which the Appellant can benefit.

It should be remembered that the law is that even where there are conflicts in the evidence of witnesses for the prosecution which are not material in proving or disproving the prosecution’s case or do not raise doubt as to the guilt of the accused person, they merely amount to minor inaccuracies not fatal to the charge. See Akpueya v. State (1976) 11 SC, 219; Azu v. State (1993) 6 NWLR (299) 303; Wankey v. State (1993) 5 NWLR (295) 542; Theophilus v. State (1996) 1 NWLR (423) 139.

In the absence of any contradiction as defined in law, in the evidence of the PW1 and PW2 which is on material points or issues in the prosecution’s case, I find no merit in the Appellant’s issue 3 and resolve it against him.

I now turn to the Appellant’s issue 1.

The submissions by the learned counsel for the Appellant on the issue are that PW2 had stated in his evidence that one Nkanu sharpened the matchet used by the Appellant in the commission of the offence charged, but that Nkanu was not called as a witness although the Investigating Police Officer (IPO) had stated under cross-examination, that Nkanu was found to have fueled the incident. That PW2 did not inform the deceased about the sharpened matchet. It was further submitted that the bed or bed sheet, blood stained clothes and rechargeable lamp were not tendered in evidence and that even the blood stained matchet put in evidence was not subjected to forensic test to confirm the blood on it was that of the deceased. According to counsel, the above shows that the prosecution did not sufficiently make out its case beyond reasonable doubt as required by the law and we were urged to so hold. The cases of ADEKUNLE v. STATE (2006) 5 LRCN (6) and STATE v. OGBUBAINGO (2006) 5 LRCN (403) 407 were cited on the requirement of proof beyond reasonable doubt by the prosecution and we were urged “to hold in favour of the accused/appellant.”

For the Respondent, it was submitted that because a matchet has several uses, it was not necessary for PW2 to have informed the deceased about it since he did not know the intention of the Appellant. In addition, that the prosecution’s duty is to provide evidence of witnesses before the court to prove its case beyond reasonable doubt and not to call a particular witness. That given the facts and circumstances of the case and the law applicable, the prosecution had no obligation to call Nkanu as a witness in the case. Reliance was placed on the authority of OLAYINKA v. STATE (2007) 9 NWLR (1040) 561 at 568 – 9 for the submission.

In further argument, the learned Attorney General had said that it was unnecessary to subject the blood stained matchet to forensic test since it was admitted in evidence without objection as the weapon used in killing the deceased, the only one recovered on the night of the incident and so the blood on it must be that of the deceased by inference. Furthermore, that because the photographs and negative thereof of the deceased taken at the scene of the crime were put in evidence, it is not necessary to tender the wooden bed in evidence. It was submitted also that the prosecution had proved the death of the deceased by the unchallenged evidence of PW2, the confessional statements of the Appellant and the autopsy report and that there are no co-existing circumstances to weaken the inference that the Appellant and no other person killed the deceased. Relying on STATE v. OGBUBINJO (supra), we were urged to hold that the prosecution had proved its case beyond reasonable doubt and resolve the issue against the Appellant.

In criminal law of evidence in our country, it is now elementary that where the commission of a crime by a party to any proceeding is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt by the person/party who alleges or asserts the commission of such crime. See Section 135(1) and (2) of the Evidence Act 2011 (which was the same provision in the Evidence Act 2004 applicable at the trial of the Appellant and repealed by the 2011 Act), EZE v. FRCN (1987) 2 SCNJ 76; OWNUMERE v. STATE (1991) 4 NWLR (186) 428; ABADOMI v. STATE (1997) 1 NWLR (479) 1; AIGBADION v. STATE (2000) 4 SC 1 at 5; IGABELE v. STATE (2006) ALL FWLR (311) 1797; OSENI v. STATE (2012) 2 MJSC (II) 123 at 166.

“36. (5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

In law, the guilt of a person accused and charged with the commission of a crime or criminal offence before a court of law can be proved by any of the following:-

a) confessional statement of the accused person which passes the requirement of the law, or

b) direct evidence of eye witnesses who saw or witnessed the commission of the crime or offence, or

c) circumstantial evidence which links the accused person and no other person to or with the commission of the crime or offence charged. See LORI v. STATE (1980) 8 – 11 SC, 81; (1980) 12 NSCC, 209: EMEKA v. STATE (2001) 32 WRN 37, (2001) 6 SCNJ, 259; (2001) 14 NWLR (734) 666; IGABELE v. STATE (supra); JOSUA v. STATE (2010) 1 WRN 41 at 46.

The requirement of the law that the prosecution owes the burden of proof beyond reasonable doubt does not mean that the prosecution must prove the guilt of the accused person beyond all doubts or any shadow of doubt. Thus if the evidence adduced by the prosecution is so strong against an accused person as to only leave a remote possibility in his favour, then guilt is proved beyond reasonable doubt and the burden would then shift to the accused person to prove otherwise. In the case of AGBO v. STATE (2006) ALL FWLR (309) 1380 at 1417. In Supreme Court had put the law thus:-

“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, nothing short of that will suffice.”

See also BOLANLE v. STATE (2009) 12 SC, (Pt. II) 145; LORI v. STATE (supra); BASSEY v. STATE (2012) 3 – 4 MJSC 177 at 196.

In the above premises, all that the law requires of the prosecution in the discharge of the burden of proof of a crime or criminal offence is the production of evidence that leaves no doubt in the case against an accused to which he is entitled to take benefit of because of the uncertainty created thereby. Certainty is essential element of proof in criminal liability and can only be attained when the evidence against an accused person leaves no unexplained gabs which create doubt in the mind of the court as to his guilt.

In the present appeal, the Appellant was charged as stated earlier, with the offence of murder punishable under Section 319(1) of the Criminal Code, Cross River State.

“In a charge of murder, the prosecution is required by law to prove the following:

a) that the death of a human being actually occurred;

b) that such death was caused by the accused;

c) that the accused person’s act resulting in the death of the human being was done with the intention of causing death or grievous bodily harm;

d) that the accused know that death would be a probable, not just likely, consequence of his act. See THE STATE v. DANJUMA (1996) 8 NWLR (Pt.469) 660 at 668; KADA v. THE STATE (1991) 22 NSCC (Pt. II) 592 at 598.”

See also OKORO v. STATE (1988) 12 SCNJ, 191; OGUNDIYAN v. STATE (1991) 3 NWLR (181) 519; ALGUOREGHIAN v. STATE (2004) 1 SC (Pt.1) 65; APUGO v. STATE (2006) ALL FWLR (341) 1253.

The prosecution in the case against the Appellant was therefore required by law to prove beyond reasonable doubt that:-

1) Juliet Godwin Usen is dead or has died,

2) that the death of Juliet G. Usen was caused by the act of the Appellant

3) that the acts of the Appellant were done with the intention of causing death or grievous bodily harm and

4) that the Appellant knew that death would be a probable consequence of the acts.

From the submissions by the learned counsel for the Appellant, he has not challenged, but concedes, that the Juliet named in the charge against the Appellant has in fact died or is dead. The indisputable evidence of the witnesses before the trial High Court, including that of the Appellant, as well as the autopsy report admitted in evidence has put the fact that a human being, Juliet Godwin Usen, has died or is dead, beyond reasonable doubt. The first element of the offence with which the Appellant was charged, i.e. death of a human being has been proved by the prosecution as required by law.

The next ingredient or element is that the acts of the Appellant caused the death in question. It may be recalled that the complaints by the learned counsel for the Appellant which relate to this element is that PW2 never mentioned in his statement that he told his mother, the deceased, that his father, the Appellant had sharpened a matchet and Nkanu who was said to have sharpened it for the Appellant was not called as a witness. It was his further complaint that the blood stained clothes were not tendered in evidence and that the blood stained matchet was not subjected to forensic test to confirm the blood was that of the deceased. Let me point out in respect of PW2 that the learned counsel for the Appellant is not challenging the veracity or credibility of the evidence given by the witness, but that the witness did not say that he mentioned that the Appellant had sharpened a matchet to his mother, in the evidence.

The High Court had in its judgment found that the evidence of PW2 though gravely chilling “along with other evidence before it, was not controverted or even directly challenged under cross examination.”

PW2 who was living with his parents and slept in the same house with them on the night of the incident, was an eye witness to what happened between the Appellant and his late mother. His evidence as recorded in the record of appeal appears coherent and is in line with the evidence of PW1, Exhibit ‘2’, the autopsy report and the statements of the Appellant in Exhibits ‘4A’ and ‘4B’. That the witness did not say he told his mother about the Appellant sharpening a matchet has no bearing howsoever to the veracity of the direct, positive and cogent testimony he gave in respect of what he saw happened on that fateful night, between his parents. In this regard, I agree with the learned Attorney-General that a matchet as a domestic instrument ordinarily and usually, has several uses and its presence in most homes in this part of the country in particular, is not strange, unusual or abnormal. But the fact that PW2 had even asked the Appellant twice what the sharpened matchet was for and he was told not to worry goes to show the resolve of the Appellant to proceed with his premeditated use of the matchet for the purpose he intended. PW2 had graphically given the unchallenged evidence of the use to which the Appellant had put the matchet and no shadow of reasonable doubt whatsoever exists on the point.

The learned counsel had only said that Nkanu was not called to testify in the Appellant’s case but did not even attempt to demonstrate the value of the evidence of the said Nkanu to the Appellant or in the case at all. It was not suggested that the said Nkanu was an eye witness and a vital one in the proof of the charge against the Appellant. In fact from the record of the appeal, the said Nkanu was not listed in the charge sheet as one of the witnesses to be called at the trial. The law is that in the discharge of its burden of proof, the prosecution is not required to call every available, eye or particular witnesses. All that the law requires is that the prosecution should call or adduce evidence which proves the charge against the accused person beyond reasonable doubt.

The prosecution therefore has a discretion to call only material witnesses whose evidence is sufficient to prove the charge as required by law. See OGBODU v. STATE (1986) 5 NWLR 294; AKPAN v. STATE (1992) 6 NWLR (248) 439; UDOFIA v. STATE (1981) 11 – 12 SC, 49 at 63; INUSA v. STATE (1982) 13 NSCC 70 at 82. The law however requires that the prosecution should call a vital witness whose evidence is essential to the proof of the charge beyond reasonable doubt and without which there can be no such proof.

A vital witness is a witness whose evidence is fundamental because its tilts a case, one way or the other and failure by the prosecution to call such a witness is fatal to its case since it would result in failure of proof beyond reasonable doubt. See STATE v. NNOLIN (1994) 5 NWLR (345) 394; OGUDO v. STATE (2011) 12 MJSC (1) 108 at 129 – 30; OPAYEMI v. STATE (1985).

In the above premises, since it was not shown that Nkanu was a vital witness whose evidence was fundamental to the proof of the charge against the Appellant, the prosecution was under no legal obligation or duty to call him as a witness at the trial. Perhaps I should point out that the law does not impose on the prosecution, the duty or function of both the prosecution and the defence and so it is not even bound to call every material witness but if requested such a witness must be tendered for cross-examination. See INUSA v. STATE (supra); OGBODU v. STATE (supra).

The next point of complaint by the learned counsel for the Appellant is that the blood stained matchet was not subjected to forensic test to confirm that the blood thereon, was that of the deceased. Now the matchet in question which was admitted in evidence as Exhibit ‘1’, was tendered through PW2; the Appellant’s son. Just before it was tendered in evidence, PW2 had testified that:

“I will recognize the matchet that I saw that day and that my father to kill my mother. It is a straight and long matchet with a black handle. This is the matchet that is now shown to me.” See page 62 of record of appeal.

The matchet was thereafter tendered and without objection, admitted in evidence.

Under cross-examination in respect of the matchet, PW2 had maintained that:

“I recognised Exhibit ‘1’ as the one my father was using to cut my mother because it was sharp… Exhibit ‘1’ is the knife my father used. It is not a matter of looking alike.” See page 64 of the record of the appeal.

From this unchallenged and cogent evidence of PW2 on the matchet used by the Appellant in the commission of the offence charged, which is supported by the two (2) statements by the Appellant to the police admitted as exhibits ‘4A’ and ‘4B’ as well as the autopsy report admitted as Exhibit ‘3’ there is exist no reasonable doubt that the matchet in question was the weapon used by the Appellant in the commission of the offence charged. For that reason, it is quite unnecessary for the matchet to be subjected to test merely to confirm what was not in issue, that the blood stains thereon, was that of the deceased. Because there was no challenge to the fact and evidence that the matchet was the one used by the Appellant on his late wife on the date/night of the incident and the only one recovered at the scene, the need to conduct a test to find if the blood on it was that of the deceased was of no moment in the proof of the fact that it was the act/s of the Appellant that caused the death in question.

The omission or failure to conduct such a test on the matchet in my view, does not in any way howsoever affect the credibility and probative worth of the matchet as an Exhibit and part of the evidence adduced by the prosecution in proof of the charge against the Appellant.

Let me point out that the decision of the High Court was not based on circumstantial evidence but on direct and positive evidence of an eye witness and other witnesses including the Appellant himself vide his confessional statements which leaves no doubt whatsoever that it was the Appellant and no other person, that caused the death of his wife; Juliet G. Usen on the date in question. I would point out here that the unchallenged evidence of PW2, which was believed by the High Court as credible of the facts and circumstances of what transpired between the Appellant and his late wife on the fateful night in question, being the direct account of an eye witness, was sufficient to ground the conviction of the Appellant, even without the evidence of other witnesses. The law is settled that the evidence of single witness which leaves no doubt, reasonable in the circumstances of a case, that it was an accused person and no other that committed the offence with which he was charged, is sufficient to support a conviction of such an accused person. See Nwambe v. State (1993) 5 SCNJ 77 at 95; Babuga v. State (1996) 7 M.A.C. 165 at 181; Oduneye v. State (2001) 2 NWLR (697) 311; Emine v. State (1991) 7 NWLR (204) 480. Once more I must emphasise that the law does not admit of fanciful possibilities to deflect the course of justice and only requires the prosecution to produce cogent and credible evidence to prove the charge beyond reasonable doubt and not beyond all or every shadow of doubt. The Respondent in this appeal has discharged the legal burden of proof placed on it by law in respect of the charge for which the Appellant was convicted, in my firm view. I resolve the issue against the Appellant.

In the final result, having resolved the three (3) issues raised by the Appellant against him, I find no merit in the grounds of the appeal from which they were distilled. Both the grounds and the appeal are dismissed accordingly. The conviction and sentence of the Appellant by the High Court are affirmed.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Muhammed Lawal Garba, J.C.A. The Appellant articulated 3 issues for determination as follows:

1. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by the law before he was convicted for murder and sentence to death?

2. Whether there was no miscarriage of justice when the learned trial judge admitted inadmissible evidence and used some to convict the Appellant?

3. Whether the learned trial judge misdirected himself to hold that the doubt created by the materially contradictory evidence of the prosecution should not be in favour of the Appellant?

Issue 2 amongst other things dwelt on the trial Judge admitting, the confessional statement of the Appellant. The Appellant had denied making Exhibit 4A and 4B. Where a confessional statement is retracted, a trial within trial is conducted to ascertain the truth of the statement. If the confession is found to be true, voluntary, direct and positive, it is admissible in law, retraction therefore is immaterial Nwosu v. State (1998) 8 NWLR pt 562 p 433, Idowu v. The State (2000) 7 SC pt II pg 50, Ihuebeka v. The State (2000) 4 SC pt 1 pg 203.

In the instant case, the evidence of PW1 and PW2 was unchallenged and cogent. Both their testimonies corroborated the confessional statements of the Appellant. In fact, the evidence of all the PWS laid credence to the confessional statements of the Appellant.

The trial Judge was therefore right when he relied on Exhibit 4A and 4B to convict the Appellant.

With this and the more expansive reasoning of the other issues by my learned brother, this appeal is dismissed. I abide by all the consequential orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the judgment of my Lord, Mohammed Lawal Garba, J.C.A. and I agree with the conclusion arrived at. I shall add a few words of mine by reproducing the evidence in chief of Edet Akan Ikoridem (PW1) the principal prosecution witness at pages 52-56 of the printed record to wit:

“Much later sometime in the night I heard the wife of the accused shouting out my name and saving Bro. Eddie, bro. Eddie, my husband has killed me. She was shouting in Ibibio language. Bro. Eddie, Bro. Eddie, Ebemi owrrow. Initially I thought I was dreaming and so t slept on. Much later she repeated the same shouting again. Then I woke left my room, went to the parlour picked up my key to open my front door, I opened my front. We share the same wall on my left side of my apartment. I came out and turned left towards his side of the apartment. The accused came out of his room to meet me outside. What t noticed immediately is that his two children were also both outside. I asked him why is your wife calling my name at this time of the night. He answered that I should not worry myself and that they will settle whatever the problem is by day break. I insisted to see the wife and reminded him that that was not the 1st time they were fighting and I wanted to know why she was calling my name (Bro. Eddie as he always calls me) in that particular fight. Accused still insisted that I should go and sleep because they will settle whatever the problem is by morning. I thought about it and said well that not the 1st time they were fighting and so I decided to go back to my own room. While turning to leave, I notice that the weather was very cold and it was drizzling. As the children were still outside, I asked him to allow me take them to my apartment to sleep there till morning. Accused did not hesitate he opened his own protector for children to follow me, and also gave me a wrapper for their cover which he also gave to me. The 2 kids, Marshall his son and Nora his daughter followed me to my own room. After advising them to sleep I noticed as I was going to lock up my protector that both of them were very restless. I locked up my protector and left to my inner room to sleep, but the girl, Nora stopped me and said uncle as you are going to sleep, our dad (the accused) has killed our mum (the deceased). I dismissed what she said think its childish exaggeration and advised them to try and sleep. But the son then knelt down right in my front in the parlour and slapped the floor with his palm and said if my dad has killed my mum, I am going to kill my dad. For a boy of that age I did not find that statement normal and so I thought it is something I should really check. I guess the age of the boy to be about merely 14 years. So I went back, opened my protector went outside, threw the key of the protector padlock back to the children to custody, and back to their father’s door. It also has a protector like all our apartments. I did not call his name. I believe as he heard my door open, he came out of his parlour, but his protector was still locked. I decided to be diplomatic and I asked what have you done to your wife that your children cannot sleep. Before he could answer me, I looked at his feet and saw a lump of blood on his left foot. All he answered again what that he had told me that there is no problem and I should go and sleep. I then pleaded with him that if it had injured his wife, he should open the door and bring her out so that we can take her to the hospital, since he has a car, he said I should not worry and he went back inside and closed the door of his parlour. So I went to the 3rd apartment (they are all 5 in number) and use my phone and tried to call some police friends. Unfortunately, none of the 3 lines I tried at that time went through. So I went to the 5thn tenant and knocked his door and the wife woke up. I told her I need to see her husband urgently. The husband came out. I told him that I think the accused has injured his wife and we needed to call the police immediately. He has a bike and wanted to use it but I told him to instead go and hire a bike outside because I did not want the accused to know that anybody had left the compound and become alarmed. The tenant agreed and left to call police.

I then went back to accused door and called him. He out of the room to the protector which was still locked. Then I heard the wife shout her last words “Bro. Eddie, Jesus, Jesus, Jehovah, then was silence. By then the 5th tenant called Ufia had gone to the police station. Accused did not know the Ufia’s wife did not go back to sleep. She instead came to the door/protector of accused and stood there with me. When she realize what was going on as a woman she promptly raised an alarm. Every other tenant on hearing the alarm woke up and came out. Also the surrounding neighbours woke up and trooped into the compound.

As at the point I did not believe or realize that the woman was dead and so I was still busy pleading with the accused to open up his door so that we can take the wife to the hospital. Meanwhile, Ufia’s wife went to the back door and called upon the accused wife but she did not reply. She came to inform me that she had gone and called the accused wife but she did not reply, and that she believed that the woman is dead. For fear of raising false, I went back to my place and sent the son to go through their back door and call the mother to see if she replied. The boy who is a stammered came back crying. He said he was very sure that his father had killed his mother because she was not replying. I now went back to the accused I warned him that if he did not open his door, we were going to send for the police. All he replied was that he had told me not to worry.

He then went back into his house, came out with some files, opened his protector for the 1st time and started heading towards his car. As I was not sure whether he was armed, I stepped back and then informed him that we would not allow him leave the compound, except he goes back and brings his wife so that we can take her to the hospital. He refused to go back and still proceed to his car, opened the car door. Then I go close and snatched the files from his hand and handled them over to his son who was inside my locked protector. He pleaded with me not to allow his father escape. As I did not allow move out the car, the accused left the car and tried to move outside the compound on foot, I refused to allow him go out. Some other boys who had come in from the neighbourhood on noticing the accused behaviour, decided to position them on all exits point to avoid his escape. The accused then moved back into his house, locked up the protector again and stayed inside his house.

After some time, one of the co-tenants came and told me that accused has opened his backdoor and I should proceed there before the accused jumps away through the back fence. I went there and met him standing outside his backdoor. He came out from there and had closed it back. I then asked him I we should now call the police. The next thing he said to me was “if you want to see my wife, OK you can go in.”I told him to lead the way and go in first. He refused. I then said to him – your wife must have called my name believing I will be able to help her but you have refused. So I will not forgive myself for not being able to help her and I will also not forgive you if she dies for not allowing us take her to the hospital. He bowed his head down and said I should call the police. After a long time, the police arrived together with Ufiah. The police wanted to know the person in question and I pointed out the accused to them.

Police asked where is your wife. He pointed to the backdoor and told them she was inside. The police asked him to go in first and he did so. After 3 policemen got in, I then went in and that was when I saw the wife. She was lying in a pool of blood with several matchet cuts. The police later took the accused away the condition I saw deceased was that she was very still with her eyes still wide open she made no sound, sign or movement. Both hands were just held by the skin and the bones were off, she had a very deep cut on the back of the neck and two separate ones on the head when I left my room the 1st time was about 1:20am at night but early hours of 2/6/2007. That’s all I know.”

Learned Counsel to the appellant cross-examined PW1. Part of his answers are to be found at page 58 of the printed record as follows:

“PW1: (Re-Affirms English). Yes I was last cross-examined on 5/2/2009. The call l heard on the night of incident was coming from accused wife. I heard no other voice aside hers. Yes I saw lumps of blood on the left feet of accused person. It was then I knew that something was wrong and I had to call the last neighbour to go for the police. It was drizzling on that day of incident. I never visited the accused in his house or village. I do not know where the deceased was before the date of incident on 1/7/2007.

Yes, I said that the marriage of accused and deceased is characterized by fighting and misunderstanding. The 1st time the police came they removed the deceased and the 2nd time they came and picked the cutlass. The accused was present the 1st time, but not the 2nd time. Re-exam. Nil.”

On the whole the prosecution called five witnesses to prove her case. The appellant testified as DW1. The evidence is at page 76 – 80 of the printed record:

“DW1: (Sworn, Bible, English); my names are Godwin Ibanga Usen. I live at 45 Jebs Road, Calabar. Educationist and proprietor of a school. On 27/5/2007 I took a drive to white house street, Calabar to take my lunch in a Restaurant, organized by one of my neighbours. I arrived, went in and sat down. Few minutes later an unknown person came and tapped me on the back and said that someone is looking for me. I went out and saw the General Overseer, the founder of the Redeemed Peoples Church named Apostle Godwin Essien. I worship in that Church. He told me that a lady came to him the previous night claimed to be my wife and that she wants to come back home. I told him that I never sent her away. That it is brothers and sisters who packed her out of my home. What warranted the packing was that I accused my father in law for attacking my wife and they grew annoyed. I told them that I am ready to proof. They were so violent and packed her away.

I and Apostle Essien then booked an appointment for continuation of the discussion (as we were standing by the road side) for Wednesday, 29 May, 2007 in his office/church premises at No.3 State Avenue Street, Calabar. About 10:30am of that Wednesday on getting there, I saw my wife for the 1st time after one year and six months. I asked her why she was there and where was she staying for now. She told me that she is staying with the sisters at No.6 Archibong Iso Street, Calabar. She fell on her knees and started weeping and confessing at the same time that the father has a cult or marine spirit or juju that is hunting her, and that she is possessed by that spirit and that that spirit doesn’t want her to remain in her matrimonial home. At that point the Apostle promised to deliver her before handing her over to me. I told him I did not have any intention of marrying a new wife and that there is no 100% husband or wife. After that I went home to my children and she left for Archibong Iso Street. The following day, 30/5/2007 there was an anointing service in the Church, which I and my wife attended. At the end of that service we were asked to wait for the marriage committee that prayed with us before I take my wife home. But at this point my refused and insisted. I have to meet her mother in the village before she comes back to me. The village is Ikot Edung in Ibiono Local Government Area of Akwa Ibom State. The church decided that I will not go alone, that they will go with me. I arranged for a bus and two private cars for the trip scheduled for Sunday. She accepted to go to the village too. From there I and my wife went back to my residence. The next morning, Friday, 31/5/2007 before I left for school that morning, I gave her N50,000.00 cash to go to the market to keep herself and the children in order, ready for the trip. On return in the afternoon, she put before me all the clothes, etc, she had bought and I was very happy. Then in the evening after our normal dinner, I called my family together for devotion. My son took Bible reading, while my daughter led the choruses and my late wife took the intercessory prayers. Then I concluded the devotion with a caption “Your body living and holy sacrifice preserved unto the Lord. Romans Chap.12, v. 1 – 2.

We then departed to our sleeping places in the house later in the night, she demanded for fun which l turned down her request until we come back from the village. Then she held my organ. I still said no. She accepted with me. Sooner or later there was a knock on my gate 3 times. She decided to go and I said no. She said that she want to check on the children and I said ok. She went into the parlour and opened the door. I heard a voice asking her where is your husband and what about the money. On hearing that I stood up from bed and went to the parlour too. Though the window net, I saw 3 (three) gentlemen standing outside. I only recognized one person. He is Mr. Edet, the PW1 in this case, I went back to my room, picked my shirt and trouser from the wardrobe. Then I opened the backdoor after putting on my shirt and trouser. I then with the help of a drum climbed the fence and jumped into the next farmland. It was darkness night then. I hid myself in between the banana trees that were in the farm. At that period I heard my wife’s voice shouting, darling oh, darling oh, they have killed me. The whole area was very calm and quiet. After sometimes, I went out from my hiding place and the very 1st person that I meet was Edet, PW1; who told me, “It is like they have killed your wife.” I rushed to the front of my apartment only to discover that it had been locked with a different padlock which is not my own. From there, I turned back and pushed the backdoor the one I went out from open. I went into my room and met my wife in a pool of blood. I shouted, I wept, cried and called on the neighbours. They heard my voice but they were afraid to come out. I then went back to my room, picked my car ignition key with intention to rush my wife to the Hospital.

On getting to my car and opening the door, I turned round and I saw my son PW2 at the veranda of PW1. I removed all the documents are the backseat of my car and gave to my son (PW2) to keep. I remember among the documents my 1st and 2nd degree, NYSC discharge Certificate, my 1st and 2nd semester transcript and Bank document (UBA) Cheque and other items. The documents are with the police, Sgt. Etuk Udo (PW4 and IPO).

At this juncture, I saw PW1 again with his area boys blocking the gate to stop me from going out. There was serious trouble between them and me. That forced the neighbours to now come outside. At this juncture I asked one of my neighbours, Ufia, to rush to the police station. Later the police at Mbukpa arrived and I was picked along, only myself. On getting to the police station, they handcuffed me, dumped me in the cell, collected my eye glasses. I was not cautioned by the IPO or volunteered a statement. I never admitted committing any crime before the IPO. I am educated and can write my statement. That is basically the scenario, that took place between I and the police, before I was taken to D4; State CID, Calabar.

The IPO at Mbukpa police was Cpl. Etim Udo. The IPO at state CID is Sgt. Udo (PW4). In the State CID, I was not cautioned, I did not volunteer any statement, I never admitted any offence and my glasses were also taken away from me. I was in the cell. The IPO Mbukpa was not there. Nothing happened at all between me and the Head of D4 (State CID). I was taken to Chief Magistrate Court and ordered to be remanded in prison custody.

Before I was taken to the Chief Magistrate Court 1, Calabar, the ACP called the IPO with myself advised him that he will not come the following day to meet me in the cell and that if that happened he will remove his uniform. That is all. I do not know who wrote Exhibit “4A” tendered by PW4. It was written by the police. I was not present, I do not know who signed it, it is not me.

I was not informed of any statement written on my behalf. I never made any statement to the IPO. I never made Exhibit ‘4B’ as 2nd statement. I never signed it as alleged.

Yes, the two writing on Exhibit “4A” and “4B” are the same. On the night of incident, there was a blackout by NEPA and it was not possible to identify any person. I recognized PW1 because he was too close to the door, that’s why I was able to recognize him.

The IPO never took me to the scene of any crime. I was never with any team of police officers.”

The learned trial Judge rejected the evidence of the appellant, convicted and sentenced him to death hence this appeal.

In my humble view there is no substance in this appeal I rely on the holding of his Lordship at page 101 – 102 of the printed record to wit:

“NOW TO ISSUE NO.5:

On this issue the evidence is that the accused person took all the prior trouble to ensure that his matchet was properly sharpened and kept ready or handy before he later went to bed with the deceased – wife is unchallenged and uncontradicted. The logical inference is that he had a prior intention to inflict maximum damage. The deep, merciless, brutal matchet cuts, and the numbers or multiplicity of the numerous furious cuts all over the body as testified by Dr. Nsor (PW3) who conducted the autopsy loudly and unequivocally announces to the world a clear and settled intention to kill or cause extreme grievous bodily harm. That the locked up of his protector door until he was sure that his wife was actually dead clearly shows that he is vicious and deadly cold blooded snake in human form. That he tried to rope in PW1 as one of the 3 men he falsely claimed to have been knocking 3 times on his gate or protector in what he himself said was a “darkness night” clearly shows that he is a wicked and disingenuous liar of the 1st degree. And finally, that he has the audacity to state on oath that his son (PW2) who testified that he saw him with a lantern and matchet (Exhibit 1) matcheting his own wife did not see or recognize him dumfounds me and leaves me with no known words to qualify or define his character any more.

In the event, I hereby answers issue No.5 in a heavy affirmative.

For the forgoing reasons, and answers, I have no hesitation whatsoever, in finding and holding, on the evidence and the state of law, that the prosecution has proved the charge or murder against the accused person beyond reasonable doubt.”

The holding is amply supported by the evidence on record. The appeal is dismissed. The conviction and sentence is affirmed.

Appearances

Mr. Linus O. Abang, Esq.For Appellant

AND

Mr. Attah Ochinke, Esq., Attorney-General & Commissioner for Justice, Cross River StateFor Respondent