IBOKO v. STATE (2021)

IBOKO v. STATE

(2021)LCN/15105(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/AK/77C/2015

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

PAUL IBOKO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESSENTIAL INGREDIENTS OF MURDER THAT MUST BE ESTABLISHED BY THE PROSECUTION

The Appellant in his brief of argument, had restated the law as to what ingredients should be established by the Prosecution when a case of murder is proferred against an accused person. For purposes of elucidation I shall restate them. They are a. That the deceased died b. That the death of the deceased was caused by the accused. c. That the act or action 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. PER RITA NOSAKHARE PEMU, J.C.A.

GUIDELINES AND TESTS WHICH A CONFESSIONAL STATEMENTS MUST BE SUBJECTED TO BEFORE IT CAN BE RELIED UPON IN CONVICTING AN ACCUSED

NEED FOR CALLING THE PERSON WHO ALLEGEDLY IDENTIFIED THE CORPSE OF THE DECEASED TO THE DOCTOR, TO TESTIFY AS TO THE IDENTIFICATION

In ENEWOH V. STATE 1990 NWLR (PT. 145) AT 569. Apata JSC (of blessed memory) restated the desirability of a person who allegedly identified the corpse of the deceased to the doctor to be called to testify as to the identification, unless the identity of the deceased can be inferred from the circumstances of the case. PER RITA NOSAKHARE PEMU, J.C.A.

EFFECT OF THE FAILURE OF THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT

It is for the Prosecution to prove its case beyond reasonable doubt and failure to do that is fatal to the case of the prosecution. PER RITA NOSAKHARE PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court, Akure Judicial Division in Suit No. AK/67C/2013, delivered on the 19th day of June 2015.

SYNOPSIS OF FACTS
The Appellant was arraigned on a one count information of murder contrary to Section 316 of the Criminal Code Law, Cap. 37, Vol. I, Laws of Ondo State of Nigeria 2006.

At the trial, the Prosecution called four witnesses and tendered five exhibits while the Appellant called no witness, but testified on his behalf.

At the end of the trial, the learned trial Judge, convicted the Appellant for the offence of murder on the 19th of June 2015.

The Appellant dissatisfied with the judgment and being desirous of appealing it, filed a Notice of Appeal on the 6th of August 2015 encapsulating five (5) Grounds of Appeal.

The Appellant filed his brief of argument on the 21st of February 2017 but same was deemed filed on the 19th of March 2018. It is settled by D. A. Awosika, Esq.
1

The Respondent’s brief of argument was filed on the 22nd of February, 2019, but deemed filed on the 25th of January, 2021. It is settled by Olorunfemi Kunle Ayegbusi, Esq.

The Appellant had proffered just a lone issue for determination which is
“WHETHER HAVING REGARD TO THE STATE AND NATURE OF THE EVIDENCE LED BY THE PROSECUTION, THE OFFENCE OF MURDER HAS BEEN ESTABLISHED AGAINST THE APPELLANT BEYOND REASONABLE DOUBT?”

The Respondent also formulated a lone issue for determination which is
“WHETHER THE PROSECUTION COULD BE SAID TO HAVE PROVED THE CASE OF MURDER AGAINST THE APPELLANT BEYOND REASONABLE DOUBT?”

The issue formulated by the Respondent is an adoption of the issue formulated by the Appellant and I shall consider this appeal based on the common issue formulated by the parties.

ARGUMENT
The Appellant submits that it is the duty of the Prosecution to prove its case beyond reasonable doubt – citing WOOLMINGTON VS DIRECTOR OF PUBLIC PROSECUTION (1935) AC 462; OFORLETE V. THE STATE (2000) FWLR (PT. 12) 2081 AT 2097 PARAS H – 2098; OSENI VS THE STATE (2012) 5 NWLR (PT. 1293) 351 AT 385 PARAS. B – D AND ADEKOYA VS THE STATE (2012) 9 NWLR (PT. 1306) 539 AT 565 PARAS. D – F.

Submits that the findings of the lower Court convicting the Appellant cannot be supported by evidence.
Submits that in establishing the offence of murder, the following ingredients are essential to be proved beyond reasonable doubt viz:
a. That the deceased died
b. That the death of the deceased was caused by the accused.
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.

While submitting that the fact is established that the deceased, one Felix Francis died, he submits that the Prosecution has however failed to established the two other ingredients of the offence against the Appellant. That none of the Prosecution witnesses led evidence linking the Appellant to the death of the deceased.

That the testimony of PW1 did not reveal any form of investigation conducted in relation to the death of the deceased. That no statement or evidence was elicited from PW1 to disclose who handed Exhibit P3 to PW3.

That PW2’s and PW3’s testimony was largely hearsay. That they confirmed that they were not present at the scene of the crime.

He submits that notwithstanding that the evidence of PW1, PW2 and PW3 did not link the Appellant to the act that caused the death of the deceased, the Court below however placed reliance on the confessional statements imputed to the Appellant.

That the Appellant did testify that he knew nothing about the confessional statements tendered by PW1.
He submits further that the confessional statements allegedly made by the Appellant did not pass the tests laid down by law, and the Appellant was entitled to an acquittal for the offence.

He submits that the only piece of evidence available to the Court below to convict the Appellant was the alleged confessional statement Exhibits P1, P2 and P4 which the Appellant’s retracted in his defence. That the Court below failed to look at other pieces of evidence to corroborate the alleged confessional statement before proceeding to convict the Appellant.

Submits that there is no report of what happened to the deceased at M.M.M specialist Hospital. Therefore, it was impossible to conclude what the deceased died from without accounting for the nature and type of treatment

administered to him at M.M.M Hospital Ondo. The deceased was in the hospital for two days before he died. There was therefore actus novus intervenience. That the Prosecution must account for this intervening act. There must be evidence of the type of attention and treatment given the deceased at M.M.M Specialist Hospital at Ondo.

That there is contradiction in the evidence of the Prosecution witnesses as to who identified the corpse to PW4 (The pathologist).

He submits that PW4, one Awagbo Agu who identified the corpse, was not called as a witness. That PW3 also testified that he was the one who identified the corpse of the deceased to the Doctor before Postmortem was performed. That there is contradiction in the evidence of the Prosecution witnesses with regard to the identification of the corpse of the deceased. Urges that the evidence of PW1 and PW4 be discountenanced for being contradictory.

Urges Court to expunge Exhibit P5 which was wrongly admitted by the Court below.
Urges Court to hold that the prosecution had failed to prove its case in the Court below, beyond reasonable doubt.

RESOLUTION
The Appellant in his brief of argument, had restated the law as to what ingredients should be established by the Prosecution when a case of murder is proferred against an accused person.
For purposes of elucidation I shall restate them. They are
a. That the deceased died
b. That the death of the deceased was caused by the accused.
c. That the act or action 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.
There is no doubt that the deceased, Felix Francis died on the 14th of January, 2012. This is evidenced by the Autopsy report tendered at the trial Exhibit P5.
This exhibit was issued by one Dr. Ariyibi, and tendered by him. None of the prosecution witnesses with special reference to PW2 and PW3 were eyewitnesses to the crime.
It is therefore right to conclude that no one knows how the fight started and who did what. One Kole who was an eyewitness and an alleged accomplice has not been seen up till now. EKPO V. THE STATE 2001 7 NWLR. (PT. 712) PG. 298 AT 304.

The Appellant may have confessed to the commission of the crime, but where is the corroborative evidence to that confession?
More so, when the Appellant as DW1 told the Court below that he knew nothing of the confessional statements which PW1 tendered, this connotes that the Appellant resiled and retracted those statements in Court.
In the judgment of the Court, the Court below observed thus inter alia about the Appellant’s evidence in Court:
“under cross examination, he did not know why he is in Court. He agreed that the charge was read over and explained to him. He said he did not make the statement to the Police and that the Police merely asked for his name and occupation”.
The Evidence adduced by the Appellant was at variance with Exhibits P1, P2 and P4. The Court below itself had observed thus:
“I will need to consider the fact that the evidence of the accused is at variance with his extra judicial statement.”
It is therefore true that the Court below recognized the fact that the alleged confessional statement of the Appellant was at variance with his evidence in Court.

It is apparent that the Court below however failed to advert his mind to certain guidelines and tests which such confessional statements must be subjected to before proceeding to convict the Appellant. They are
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 offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
RABIU V. STATE (2010) 10 NWLR (PT. 1201) 127 AT 161-162; SHANDE V. STATE (2005) 1 NWLR (PT. 907) 218 AT 240-241 AND R V. SYKES (1913) 1 CR. APP R. 233.
It is clear that the Court below did not advert its mind to the applicable tests in its evaluation of the confessional statements and the evidence of PW2 and PW3 who were not eyewitnesses. Indeed, one Kole, the only eyewitness is no where to be found to testify at the hearing.
Having retracted his confessional statements, it was incumbent for the Court below to look at other pieces of evidence which corroborates the alleged confessional statements before convicting the Appellant.

The Appellant had submitted that there is evidence from PW1, PW2 and DW1 that the deceased was taken to M.M.M. Catholic Hospital in Ondo where treatment was administered to him for two days before he died. PW2 had testified thus:
“His name is Augustine. Augustine use his machine to take Felix my brother to Ondo town. The hospital is Catholic hospital. Paul’s sister followed my father’s brother who took Felix to the hospital. There was no means of going to the place, where we are was far from the town … he was placed on drips. After he took pap. I decided to leave to look for money and return in the evening.”
Pages 34 of lines 26 – 35 of the Record of Appeal.
This constituted an intervening event and to be explained by the Prosecution. The type of treatment administered to the deceased at M.M.M Specialist Hospital in Ondo was not given in details. This creates doubt as to whether it was in fact the alleged stab wound that killed the deceased, as that chain had been broken.

It therefore becomes doubtful as to what the deceased died from. UGURU V. STATE (2002) 9 NWLR. PT. 771 AT 90 AND OMOGODO V. THE STATE (1981) 5 SC AT 5.
The Appellant testified in the Court below as DW1 on the 3rd of June 2014 – See pages 38–43 of the Record of Appeal. At page 43 of the Record, he testified that the Doctor warned that the deceased should not be given any solid food. That around 12:00am in the midnight, the deceased begin tossing around, and they called the attention of the Nurse who informed the Doctor. That the first question the Doctor asked was that “what did the deceased eat?”
The Appellant replied he was not aware of anything as he just arrived from the farm. He also testified that around 5:00am in the morning, the deceased repeated the same thing and he rushed to call on the Nurse and the Doctor. The Doctor still asked what was given to the deceased which he replied in the negative. That it was after then the deceased vomited rice and beans which make the Doctor to slap the Appellant. The prosecution did not cross-examine him on this fact. This creates an intervening event in the chain of causation of the deceased death.

Pertinent to note is that the Appellant testified at page 40 of the Record of Appeal that he and the deceased in-law Ogbonna carried the deceased on his motorcycle to Owo Hospital. He narrated what happened at Owo hospital before the deceased was sent back because of failure to pay deposit for treatment. He testified that he paid for medical card at that hospital. The prosecution also failed to cross-examine him on these vital points.
Even the testimonies of the Appellant on page 42 of the Record of Appeal were not verified.
All these cast doubt on the case of the prosecution which will be resolved in favour of the Appellant.
I wonder why the Court below glossed over these important facts.
From records the Awagbo Agu, whom PW4 said identified the corpse of the deceased, was not called to testify.
In ENEWOH V. STATE 1990 NWLR (PT. 145) AT 569. Apata JSC (of blessed memory) restated the desirability of a person who allegedly identified the corpse of the deceased to the doctor to be called to testify as to the identification, unless the identity of the deceased can be inferred from the circumstances of the case.
I am of the view that the Prosecution had created a case with so many lacunae, which it failed to explain.

It is for the Prosecution to prove its case beyond reasonable doubt and failure to do that is fatal to the case of the prosecution.
The result is that the conviction and the sentence of the Appellant ought to be quashed and set aside respectively.
The Appeal succeeds and the judgment of the Ondo State High Court, Akure Judicial Division in Suit No. AK/67C/2013 delivered on the 19th of June 2015 is hereby set aside.

The conviction of the Appellant Paul Iboko is hereby quashed. He is accordingly hereby discharged and acquitted of the charge of murder against him.

HAMMA AKAWU BARKA, J.C.A.: I was priviledged to have read in advance the judgment delivered by my learned brother RITA NOSAKHERE PEMU JCA.

I agree that the entire scenario upon which the deceased died is shrouded in doubtful circumstance, and the Lower Court curiously failed to exercise that doubt in favour of the Appellant.

The conviction cannot be allowed to stand, more so when the life of the Appellant is at stake. I agree that the Appeal be allowed and Appellant discharged and acquitted accordingly.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read draft of the judgment delivered by my learned brother, Rita Nosakhare Pemu, JCA.

I am in agreement with his Lordship that the guilt of the appellant was not proved beyond reasonable doubt as required by law.

Even though, an accused person can be convicted solely on a confessional statement even if same is retracted by him, it is advised, and very strongly that the six tests enunciated by law on which to test the veracity of a retracted confessional statement must be passed.
In this appeal, there is no evidence outside the confessional statement linking the appellant to the commission of the offence, to wit death of the deceased. It was therefore not safe to convict him. The appeal is therefore in my view meritorious, and thus, entitles the appellant to discharge and acquittal as ordered in the lead Judgment.

Appearances:

A. Awosika, Esq. For Appellant(s)

Olorunfemi Ayegbusi,Esq. with him, Olusegun Femi Akeredolu, Esq. Assistant Chief Legal Officer Ministry of Justice, Akure For Respondent(s)