IKECHUKWU v. STATE
(2022)LCN/16893(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 23, 2022
CA/AW/16C/2020
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ELOCHUKWU BONIFACE IKECHUKWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WAYS OF PROVING CRIMINAL OFFENCES AGAINST AN ACCUSED PERSON
There are three basic ways of proving criminal offences against an accused person. These are:
1. Through confessional statement of the accused person; or
2. By direct eye witness account of the commission of the offence charged; or
3. Through circumstantial evidence.
See BASSEY V. THE STATE (2019) 12 NWLR (PT. 1686) P. 348 at 363. HARUNA V. THE ATT. GEN. OF THE FEDERATION (2012) 9 NWLR (PT. 1306) PG. 419. PER NWOSU-IHEME, J.C.A.
TEST TO DETERMINE THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT WHERE THE ACCUSED RETRACTS HIS STATEMENT
Where an accused person retracts or denies his Confessional Statement, it is admissible but not a legal or mandatory requirement that the six-way test of a true confession ought to be followed and observed. The test are as follows:
a. “Whether the confession is the truth.
b. Whether the confession was corroborated.
c. Whether the confession was free and can be tested.
d. Whether the Appellant had the opportunity to commit the crime.
e. Whether the confession was possible and
f. Whether the confession was consistent with other proved or ascertained facts.”
See ADEBANJO V. THE STATE (2019) 13 NWLR (PT. 1688) P. 121 at 137.
Also AMOS V. THE STATE (2019) 1 NWLR (PT 1653) P. 206. PER NWOSU-IHEME, J.C.A.
WAYS TO ESTABLISH THE INGREDIENTS OF MURDER
For the prosecution to discharge the burden of proof reposed on it in a Charge of Murder, it has to lead credible evidence to establish these three basic ingredients among others:
a. That there was death;
b. That the death of the deceased was caused by the accused;
c. That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See MATHEW V. THE STATE (2019) 8 NWLR (PT. 1675) P. 461 at 474. JIMMY V. THE STATE (2014) FWLR (PT. 714) P. 103 at 120. PER NWOSU-IHEME, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED OF MURDER WHEN HE DID NOT PHYSICALLY TAKE PART IN THE DEATH OF THE DECEASED
The fact that the Appellant brought those “friends” to dispossess the deceased of his property was enough. It is irrelevant whether he physically took part or not in his death once their act led to the death of the deceased, the Appellant is deemed to have caused the death of the deceased, once his act was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See MATHEW V. THE STATE supra. PER NWOSU-IHEME, J.C.A.
CHIOMA NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Anambra State Otuocha Division presided over by M. N. O. Okonkwo, J. The judgment was delivered on the 14th day of November, 2019 wherein the Appellant was convicted on a Three Count Charge of conspiracy to commit felony, contrary to Section 495 of the Criminal Code, Cap. 36, Vol. II, Revised Laws of Anambra State, 1991, Robbery, contrary to Section 365 of the same Criminal Code and Murder, contrary to Section 274 (1) also of the same Criminal Code.
In a considered judgment, the learned trial Judge convicted the Appellant on all three counts and sentenced him to death. This appeal is predicated on the said judgment.
SUMMARY OF RELEVANT FACTS:
On the 17th day of September, 2015 (17/9/2015), Adimorah Chukwudolue Emmanuel (deceased) allegedly received a phone call from a friend. He told his family members that he was going to Onitsha to answer his friend. The deceased was from Agbaja Village, Abatete. After answering the call, he left his house in his Toyota Camry Car with registration Number Lagos FST 962 DL. He was not seen or heard from after that day and all efforts to trace his whereabouts was unsuccessful. On 22nd day of September, 2015 (22/9/15) his dead body was found along a bush path off Odekpe – Atani Road Ogbaru Local Government Area with his legs, hands, mouth and eyes tied. His dead body had started decomposing at the time it was found. By a letter dated the 28th day of September, 2015 (28/9/15), Ejike Efobi, Esq., of learned Counsel acting on the instruction of the deceased’s family wrote to the Commissioner of Police, Nigeria Police, Anambra State Police Command Headquarters, Awka and reported the incident. The matter had earlier been reported to the Atani Police Station. The State Force Headquarters took over the investigation of the incident from Atani Police Station. The dead body was deposited at the mortuary at All Hallows, Atani where the post-mortem was conducted after the identification of the corpse of the deceased by his brother, Adimorah Nnamdi Cyril. The Police sent a call data request to the service provider of the deceased person’s phone. An analysis of the call history revealed that on 17/9/15, the deceased was called by the Appellant with GSM No. 07038629284. He was not the only person that called the deceased that day but he called frequently for about six times between the hours 1600 hours upwards. The Appellant’s said number not only called the deceased frequently but called him from the location where the deceased corpse was later discovered. Following the revelation in the call history, the police used their tracking device to track/trail the Appellant but all efforts proved abortive. The Appellant’s whereabouts could not be traced and his said phone number stopped working within that period making it difficult for the tracking device to trail him. The Police, who had identified the Appellant’s home town, Uke, continued monitoring him through his village address. Sometime in June, 2016, the Police got information of the death of the father of the Appellant and that he was to be buried on 1st July, 2016 (1/7/16). A team of plain clothe detectives was raised and sent to the burial venue to monitor and arrest the Appellant. When the Appellant noticed the presence of the police detectives he took to his heels and wanted to escape but was arrested at the back of their house. He was taken to SARS, Awkuzu and later same day moved to State CIID, Awka where he was cautioned and his statement obtained. The Appellant admitted calling the deceased on phone on the day relevant to this information and lured him with an employment prospect. The Appellant made two statements to the police on 1/7/2016 and 4/7/2016 wherein he allegedly mentioned his accomplices. Efforts to arrest the said accomplices have not been successful because their phone numbers were switched off making it impossible for the police to track them down with their tracking devices. Consequent upon the above, the State, by an “Amended Charge” dated the 9th day of November, 2016 and filed in Court same day brought an information of a three count charge against the Appellant.
Learned Counsel for the Appellant C. H. Onyiuke, Esq. distilled four issues for determination as follows:
i. “Whether the trial Judge was right to have admitted and acted wholly on the extra-judicial statements of the Appellant (Exhibits A1 and A2) which were tendered as confessional statements without conducting a trial within-trial to ascertain the voluntariness of same.
ii. Whether the Honourable Trial Judge was right to have admitted the call log (Exhibit E) in evidence and employed same when it was fundamentally and legally inadmissible.
iii. Whether Exhibit E (Call LOG) could be relied upon as the learned Trial Judge did to convict the Appellant.
iv. Whether the prosecution proved the offences of conspiracy, Murder & Robbery beyond all reasonable doubt.”
Learned Counsel for the Respondent, T. Nnabuife, Esq., on his part, distilled a sole issue thus:
“Whether or not the prosecution proved the offences of conspiracy, Robbery and Murder in the light of Exhibits A1, A2 and E2 on record.”
The issues distilled by both Counsel can be compressed into a single issue of narrow compass thus:
“Whether on the facts and circumstances of this case, the trial Court was right to have admitted and acted on Exhibits A1, A2 and E, holding that the prosecution proved its Case.”
The arguments of both Counsel are contained in their respective briefs and I do not intend to reproduce them here.
The Appellant’s defence was that of outright denial. He admitted knowing the deceased who he described as his very good friend and that he knew about the death of the deceased through his brother. He admitted that he called the deceased severally on the 17th day of September, 2015 over an appointment both of them had with a Soldier, Sgt. Patrick Oduah from Akiliozo, Ogbaru Local Government Area of Anambra State. Later that day, three friends of the deceased joined them at the Bar where they went to drink. They are; Udogu Franklin, Tony (Corper) and Stanley. The Appellant claimed not to know those people. The Appellant said he got drunk at a point and left the deceased and his friends and returned to his lodge. About five days after, the brother of the deceased informed him about the death of the deceased. He was arrested during the burial of his father. He stated that Police Officers from SARS Awkuzu arrested him, beat him at the scene and pushed him into their vehicle.
The Appellant made Exhibit A1 on the 1st of July, 2016, while Exhibit A2 was made on 4/7/2016. Both Exhibits were said to have been signed by the Appellant. Under cross-examination, the Appellant admitted virtually all the contents of Exhibits A1 and A2. He did not state that he was tortured but said that he narrated his story.
It is trite that the fact that an accused has retracted a Confessional Statement does not mean that the Court cannot act upon it. It is very usual for an accused person to retract or resile during his trial in Court from the extra-judicial statement he had earlier made to the Police. See THE STATE V. ALI SA’IDU (2019) 10 NWLR (PT. 1680) P. 308 at 322. It is therefore for the Court to test the veracity of that statement with other facts and circumstances outside the statement in order to see whether they support, confirm or correspond with the statement.
See also ISONG V. THE STATE (2016) 14 NWLR (PT. 1531) P. 96. HASSAN V. THE STATE (2001) 15 NWLR (PT. 735) P. 184.
In the instant case, the Appellant has not impeached his earlier statements by credible evidence. Rather, other facts and circumstances outside the two statements support, confirm and correspond with the statements. These facts include that the Appellant is the only child of his late father as well as the last Child. The Police did not know him before the incident and therefore could not have known all these facts. The Appellant also stated the names of Franklin Udogu, Chigozie Stanley and their phone numbers and even the circumstances that led to the death of the deceased.
Where an accused person retracts or denies his Confessional Statement, it is admissible but not a legal or mandatory requirement that the six-way test of a true confession ought to be followed and observed. The test are as follows:
a. “Whether the confession is the truth.
b. Whether the confession was corroborated.
c. Whether the confession was free and can be tested.
d. Whether the Appellant had the opportunity to commit the crime.
e. Whether the confession was possible and
f. Whether the confession was consistent with other proved or ascertained facts.”
See ADEBANJO V. THE STATE (2019) 13 NWLR (PT. 1688) P. 121 at 137.
Also AMOS V. THE STATE (2019) 1 NWLR (PT 1653) P. 206.
Looking at Exhibits A1 and A2 the two extra-judicial statements of the Appellant, the contents show that the Statements were obtained without duress or torture. They were voluntarily made to the Police. The learned trial Judge was therefore well within the law to have admitted both statements in evidence and acted appropriately on them whether or not they could be called Confessional Statements.
There are three basic ways of proving criminal offences against an accused person. These are:
1. Through confessional statement of the accused person; or
2. By direct eye witness account of the commission of the offence charged; or
3. Through circumstantial evidence.
See BASSEY V. THE STATE (2019) 12 NWLR (PT. 1686) P. 348 at 363. HARUNA V. THE ATT. GEN. OF THE FEDERATION (2012) 9 NWLR (PT. 1306) PG. 419.
In the instant case, there was no direct eye witness account of the commission of the offences charged. The Appellant in his Confessional Statements Exhibits A1 and A2, admitted arranging the people that robbed the deceased of his Toyota Camry Car, he stated that he only told them to snatch his ATM Card. The deceased did not come with his ATM Card. He only came in his Toyota Camry Car, his phones and cash of Two Thousand, Five Hundred Naira which they collected from him. The deceased was beaten and died as a result of the injuries he sustained from the beating. He was in other words violently robbed. The Appellant stated that he was not present during the beating and the robbing. In law, he is said to be liable for the outcome of their common intention to commit a crime his non-physical participation notwithstanding.
See GARBA V. THE STATE (2011) 14 NWLR (PT. 1266) P. 98.
The Appellant was also charged with the murder of the deceased with others now at large.
For the prosecution to discharge the burden of proof reposed on it in a Charge of Murder, it has to lead credible evidence to establish these three basic ingredients among others:
a. That there was death;
b. That the death of the deceased was caused by the accused;
c. That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See MATHEW V. THE STATE (2019) 8 NWLR (PT. 1675) P. 461 at 474. JIMMY V. THE STATE (2014) FWLR (PT. 714) P. 103 at 120.
The prosecution at the trial Court was left with circumstantial evidence. The Appellant in Exhibits A1 & A2 admitted that he did not take part in the beating of the deceased, but arranged those who beat him to death, he stated that he wanted them to rob the deceased of his ATM, but since he didn’t come out with his ATM card, so he was robbed of his Toyota Camry Car, his phone and money. The Appellant admitted making several calls to the deceased on 17/9/2015 he used his GSM No 07038629284. It was the call log, Exhibit E that revealed the identity of the Appellant. It was the same Exhibit E that assisted the Police to locate the hometown of the Appellant where he was eventually arrested on the day his father was being buried. The Appellant admitted that the deceased visited him on the day in question. It is therefore strange that the Appellant who knew the Village of the deceased “his good friend” did not bother to look for him till about five days when the brother of the deceased broke the news of his death to him. The Appellant was the last person seen with the deceased. The doctrine of “last seen” is appropriate and applicable in this case.
The Apex Court in the case of BASSEY V. THE STATE (2019) 12 NWLR (PT. 1686) P. 348 at 366 stated:
“The doctrine of “last seen” means that a person last seen with a deceased bears full responsibility of his death. In other words, where an accused person was the last to be seen in the company of the deceased and circumstantial evidence overwhelmingly leads to no other conclusion, there is no room for acquittal. It is the duty of the Appellant to give proper explanation as to how the deceased died”.
See HARUNA V. ATT. GEN. OF THE FEDERATION supra.
It is part of the unchallenged evidence at the trial Court that the Appellant was a student of the Federal Polytechnic Oko, studying Computer Science but he abandoned the school at Atani Campus since after the incident of 17th September, 2015. The deceased visited the Appellant on the invitation of the Appellant through phone call. The phone of the Appellant 07038629284 suddenly went off and was switched off after the death of the deceased. The Appellant was with the deceased on 17/9/2015 up till 10 pm when he became “drunk and left for his lodge”. He made no attempt whatsoever to know if his “friend” got home or not. The Appellant only came home on the day of his father’s burial. He took to his heels on noticing the presence of Security Operatives. The Appellant made several calls directing the deceased on how to locate his lodge. The above unchallenged facts, coupled with numerous actions and inaction leading to the death of the deceased and after his death are circumstantial evidence that irresistibly point to the culpability of the Appellant in the death of the deceased Adimorah Chukwudolue Emmanuel.
In the instant case, the act, conduct or omission of the Appellant caused the death of the deceased or substantially led to his death. The facts obviously are incompatible with the innocence of the Appellant.
It is also incapable of explanation upon any other reasonable hypothesis than that of his guilt. Exhibits A1, A2 and E corroborate the fact that constitute the circumstantial evidence in the instant case.
The fact that the Appellant brought those “friends” to dispossess the deceased of his property was enough. It is irrelevant whether he physically took part or not in his death once their act led to the death of the deceased, the Appellant is deemed to have caused the death of the deceased, once his act was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See MATHEW V. THE STATE supra.
In convicting the Appellant, the learned trial Judge had these to say at page 181 of the Record of Appeal:
“In the instant case, I am satisfied, by the evidence before me, that all the elements of the offences charged have been established. There is also a high degree of probability that the acts or omission of the Defendant led to the offences as charged. The Defendant is left with only a remote probability in his favour that he knew nothing about the offences he is standing trial for. Consequently, the prosecution has proved the case against the Defendant as charged …”
The above is a clear and succinct finding of fact which this Court has no reason or justification to distort or reverse.
In the same manner, the learned trial Judge made impeccable findings on Exhibits A1, A2 and E after reviewing and evaluating the evidence.
In sum, the sole issue is resolved in favour of the Respondent against the Appellant.
This appeal is unmeritorious and is hereby dismissed in its entirety.
The judgment of M. N. O. Okonkwo, J, of the Otuocha Division of the Anambra State High Court, delivered on the 14th day of November, 2019 in Charge No O/42c/2016 is hereby affirmed.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, CHIOMA E. NWOSU-IHEME, PhD-JCA and I am in agreement with the reasoning and conclusions in disallowing this appeal as completely lacking in merit. I also subscribe to the consequential orders made thereto in the lead judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the advantage of reading in draft, the leading judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA just delivered. I agree with the reasons advanced to reach the conclusion that this appeal lacks merit and ought to be dismissed. This appeal is unmeritorious and is accordingly dismissed. The conviction and sentence of the Appellant by the lower Court is hereby affirmed.
Appearances:
C. H. Onyiuke, Esq. For Appellant(s)
T. Nnabuife, Esq. For Respondent(s)
