IKWE v. STATE
(2021)LCN/15134(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, May 27, 2021
CA/IB/278C/2018
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
EZEKIEL IKWE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
POSITION OF THE LAW ON THE REQUIRED STANDARD OF PROOF IN CRIMINAL PROSECUTION
In criminal prosecution, it is trite that the required standard is that of proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011. If the commission of a crime by a party to any proceeding is directly in issue either civil or criminal, it must be proved beyond reasonable doubt. See the following cases: ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238. – ABIRIFON VS THE STATE (2013) 13 NWLR PART 1372 PAGE 587. PER JIMI OLUKAYODE BADA, J.C.A.
MEANING OF PROOF BEYOND REASONABLE DOUBT
… proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt. When the ingredients of any offence the accused is charged with has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt. See the following cases:- – AJAYI VS THE STATE (2013) 9 NWLR PART 1360 PAGE 589. – HASSAN VS STATE (2017) 5 NWLR PART 1557 PAGE 1. – AYINDE VS THE STATE (2019) LPELR – 47835 (SC).- SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447. PER JIMI OLUKAYODE BADA, J.C.A.
WAYS BY WHICH THE GUILT OF AN ACCUSED CAN BE PROVED
The guilt of an accused person can be proved through any of the following methods:- (i) Through Confessional Statement (ii) Through Circumstantial Evidence (iii) Through the testimony of an eye witness/witnesses. See the following cases:- – ADEGBOYE VS THE STATE (2017) 16 NWLR PART 1591 PAGE 248.- ITU VS STATE (2016) 5 NWLR PART 1506 PAGE 433 AT 465-466.- EZE VS FRN (2017) 15 NWLR PART 1589 PAGE 433. PER JIMI OLUKAYODE BADA, J.C.A.
INGREDIENTS OF MURDER THAT MUST CO-EXIST FOR AN ACCUSED TO BE CONVICTED OF MURDER
The Appellant in this case was convicted of murder. The ingredients of the offence of murder are as follows:- (i) That the deceased died. (ii) That the death of the deceased resulted from the Act of the Appellant. (iii) That it was the act or omission of the Accused/Appellant that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence. See –EDOHO VS STATE (2010) 14 NWLR PART 1214 PAGE 651. – IGABELE VS THE STATE (2006) 6 NWLR PART 975 PAGE 100. The ingredients of murder enumerated above must co-exist, if any of them is missing then the offence of murder cannot be said to have been proved, hence the Prosecution cannot obtain conviction for murder against the accused person and the Court must exonerate and acquit him of the offence of murder. PER JIMI OLUKAYODE BADA, J.C.A.
CIRCUMSTANCE WHERE MEDICAL REPORT CAN BE DISPENSED WITH IN ESTABLISHING THE CAUSE OF DEATH
I am of the view that a Medical Report though desirable in establishing the cause of death but it can be dispensed with where there are facts which sufficiently show the cause of death to the satisfaction of the Court. See the following cases:- – OGBU VS. STATE (2007) 4 SCM PAGE 169 AT 173. – ONWUMERE VS. STATE (1991) 5 SCNJ PART 1 PAGE 150. PER JIMI OLUKAYODE BADA, J.C.A.
DEFINITION OF THE TERM “CONFESSION”
Section 28 of the Evidence Act 2011 defined Confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. PER JIMI OLUKAYODE BADA, J.C.A.
WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE
In AKPA VS. STATE (2008) 14 NWLR PART 1106 PAGE 72 – it was held among others that an accused person can be convicted on his confessional statement alone when same is positive, direct and proved. Also in the case of – NWEZE VS. STATE (2018) 6 NWLR PART 1615 PAGE 197 – it was held among others that: “…A Confessional Statement alone is sufficient to ground a conviction… For a confession to secure a conviction, it must have been made direct and positive in relation to the offence for which the Appellant is charged. It must lead to an unequivocal admission of guilt. See – DANIELS VS. STATE (1991) 8 NWLR PART 212 PAGE 715. R VS. SYKES (1913) 18 CR APP. R. PAGE 23.” A Confessional Statement once admitted in evidence becomes part of the case for the Prosecution which the Trial Court is duly bound to consider in determining the probative value of the totality of the evidence adduced by the prosecution. Also there cannot be a more appropriate person to give evidence of the guilt of the accused more than the accused himself. Therefore, if an accused says that he committed the offence and the Court is of the view that he made the Confessional Statement in a stable mind then the accused must be convicted. PER JIMI OLUKAYODE BADA, J.C.A.
CIRCUMSTANCE WHERE A TRIAL WITHIN TRIAL PROCEEDING IS REQUIRED TO BE CONDUCTED
A Trial within Trial is required where the allegation is that the confession was not voluntarily made as in this case. The effect is that the accused admits that he made the statement but he did so as a result of force or inducement. See –JIMOH VS. THE STATE (2014) 11 SCM PAGE 216.In LASISI VS. THE STATE (2013) 9 NWLR PART 1358 PAGE 74 – It was held among others by the Supreme Court as following:- “Once a Confessional Statement is admitted following a Trial within Trial proceeding, it becomes very difficult for the Appellate Court to intervene on an Appeal against its admissibility as the evaluation of the evidence adduced at the said Trial is based on the credibility of witnesses, which duty is solely that of the Trial Court as the Appellate Court is not privileged to have seen the witnesses testify nor watch their demeanor e.t.c.” PER JIMI OLUKAYODE BADA, J.C.A.
PROPER TIME TO CHALLENGE THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
It is trite law that a challenge to the voluntariness of the Appellant’s Confessional Statement ought to be made at the stage of tendering the statement as an Exhibit and not after it has been admitted in evidence and marked as Exhibit. The moment it is admitted as an Exhibit, it has become part of the evidence before the Trial Court which the Court is bound to consider. PER JIMI OLUKAYODE BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of Ogun State, Ilaro Judicial Division in Charge No: AB/5C/2013: THE STATE VS EZEKIEL IKWE delivered on the 1st day of July 2016, wherein the Appellant who was charged on a single count of murder contrary to Section 316 and Punishable under Section 319 of the Criminal Code Laws of Ogun State of Nigeria 2006 was convicted and sentenced to death by hanging.
Briefly, the facts of the case according to the Prosecution are that on 29th May 2010 PW1, PW2 and the Appellant were co-tenants. The PW1 was assisting another co-tenant to prepare food for the naming ceremony of a newly born child. Precious Odeh, a two (2) year old girl (the deceased) was playing with other children in the house, and suddenly PW1 noticed that her child, the deceased was not among the other children, this led PW1 to search for her child. During the search the deceased came out of the Appellant’s room crying. At night, while PW1 was bathing for the deceased, she exhibited pain in her private part and PW1 made enquiry from the deceased
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what caused the pain and the deceased said that it was “daddy Pelumi (Appellant) that put him bumbum on my bumbum”, PW1 and her husband PW2 took the girl to Soremekun Hospital where they informed them that the Appellant had sexual intercourse with the deceased.
The deceased was thereafter transferred to Mercy Hospital, Abeokuta, Federal Medical Centre, Abeokuta, and later to University Teaching Hospital, Ibadan where the deceased was discharged and taken to another hospital in Benue State for further treatment. The deceased later died while receiving treatment. The Appellant was arrested and he made a Confessional Statement to the fact that he had sexual intercourse with the deceased.
The Appellant was charged to Court for murder and he denied the charge.
In a Judgment delivered on the 1st day of July 2016, the trial Court found the Appellant guilty of murder and he was sentenced to death by hanging.
The Appellant who was dissatisfied with his conviction appealed to this Court.
The Learned Counsel for the Appellant formulated two issues for the determination of this appeal. The issues are reproduced as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“(1) Whether the Prosecution discharged its burden of proof in this case beyond reasonable doubt. (Distilled from grounds 1, 2 and 3 of the amended Notice of Appeal).
(2) Whether the lower Court was right in convicting the accused person of the Criminal charge based on suspicion. (Distilled from ground 2 of the amended Notice of Appeal).”
On the other hand, the Learned Counsel for the Respondent formulated a sole issue for the determination of the appeal. The said sole issue is reproduced as follows:-
“Whether the learned trial Judge was right in upholding that the Prosecution has proved the offence of murder while relying on the Confessional Statement of the Appellant in convicting him having been corroborated by circumstantial evidence of PW1.”
At the hearing of this appeal on the 17th day of March, 2021, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 1/7/2016. The Notice of Appeal was filed on 1/7/2016. The record of Appeal was transmitted on 22/6/2018 and it was deemed as properly transmitted on 16/6/2019.
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The Amended Notice of appeal was filed on 6/2/2019 and deemed as properly filed on 22/6/2020.
The Appellant’s brief of argument was filed on 21/5/2020 and it was deemed as properly filed on 22/6/2020.
The Learned Counsel for the Appellant adopted and relied on the Appellant brief as his argument in urging that the appeal be allowed.
The Learned Counsel for the Respondent also referred to the Respondent’s brief of argument filed on 18/6/2020 and deemed as properly filed on 22/6/2020.
He adopted and relied on the said brief as his argument in urging that the appeal be dismissed.
I have perused the issues formulated for the determination of the appeal by Counsel for both parties and I am of the view that the issues formulated on behalf of the Appellant are apt in the determination of this appeal, I will therefore rely on the said issues.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NOS 1 AND 2 (Taken Together)
“Whether the Prosecution discharged its burden of proof in this case beyond reasonable doubt. (Distilled from grounds 1, 2 and 3 of the amended Notice of Appeal).
– Whether the lower Court was right in
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convicting the accused person of the Criminal charge based on suspicion (Distilled from ground 2 of the amended Notice of Appeal).”
The Learned Counsel for the Appellant submitted that for the Prosecution to succeed in discharging the burden of proving its case beyond reasonable doubt in the offence of murder, it must prove the following:-
(a) That the deceased died.
(b) That the act which resulted in the death of the deceased was a voluntary and direct act of the Appellant.
(c) That the Appellant intended to cause grievous bodily harm to the deceased or to cause death of the deceased.
He relied on the case of:- ALABI VS STATE (1993) 7 NWLR PART 307 PAGE 511.
It was submitted further that before the trial Court can come to a conclusion that an offence has been committed by the Appellant, the Court must look for the above ingredients of murder and ascertain that acts of the Appellant came within the confines of the particulars of the offence as alleged to have been committed. He relied on the case of – NWATURUOCHA VS STATE (2011) 6 NWLR PART 1242 PAGE 170.
Learned Counsel for the Appellant also submitted
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that the above stated elements of the offence are cumulative and must be proved concurrently and that once any of them is not proved or missing or faulted with even the slightest doubt, then the charge against the Appellant is short of being proved. He referred to the case of:- AGU VS STATE (2017) 15 W.R.N PAGE 44 LINES 15-35.
The Learned Counsel referred to the testimony of PW1, PW2 and PW3 which he said were full of material contradictions, hearsay and uncorroborated evidence of the deceased (a child). He relied on – Section 209 (3) of the EVIDENCE ACT 2011 AND OFFORDIKE VS STATE (2017) 16 W.R.N. PAGE 135-136 LINES 30-10.
He submitted that the testimony of PW1 was based on suspicion and nothing more and that there is no evidence to fix the Appellant/Accused at the scene of crime. It was submitted that suspicion no matter now grave or strong cannot amount to admissible proof that an accused person committed the alleged offence. The following cases were relied upon:-
– WAZIRI VS GEIDAM (2016) 49 WRN PAGE 1.
– STATE VS OGBUBUNJO (2001) 13 WRN PAGE 1, (2001) 2 NWLR PART 689 PAGE 607.
– NJOVENS VS THE STATE (1973) 1 NMLR PAGE 331.
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– WILLIAM VS STATE (1992) 8 NWLR PART 261 PAGE 515 AT 521.
– ABRU VS STATE (2011) 17 NWLR PART 1275 PAGE 1.
– AREGBESOLA & 2 OTHERS VS OYINLOLA & 2 OTHERS (2010) LPELR – 3805 (CA).
– ABEKE VS THE STATE (1975) 9-11 SC REPRINT PAGE 60.
– BOZIN VS STATE (1985) 2 NWLR PART 8 PAGE 465.
The Learned Counsel for the Appellant also submitted that hearsay evidence is unreliable and not admissible in proving the offence of murder against the Appellant. He relied on –SECTION 38 OF THE EVIDENCE ACT 2011.
– OSHO VS STATE (2012) 8 NWLR PAGE 243.
– DOMA VS INEC (2012) 13 NWLR PAGE 297.
– NWOFOR VS OBIEFUNA (2011) 1 NWLR PART 1227 PAGE 205.
– A.G. RIVERS STATE VS A.G. AKWA IBOM STATE (2012) 8 NWLR PART 1248 PAGE 31.
It was also submitted that the Learned trial Judge failed to properly consider the voluntariness of the alleged Confessional Statement of the Appellant as it did not satisfy the provisions of Section 21 (1) of the Evidence Act. He relied on the case of – NAMSOH VS THE STATE (1993) 6 SCNJ PART 1 PAGE 55 AT 66-67.
It was further submitted that there were no material evidences to
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corroborate the unsworn evidence of the deceased and therefore that the Respondent failed to prove that the deceased died as a result of the Appellant’s act and the elements of the offence of murder were not proved beyond reasonable doubt against the Appellant.
Learned Counsel for the Appellant urged that the two issues in this appeal be resolved in favour of the Appellant and allow the appeal.
The learned Counsel for the Respondent in his submission in response to Counsel for the Appellant contended that the Prosecution in a criminal trial is required to prove its case against the accused person beyond reasonable doubt. He relied on – ABIRIFON VS STATE (2013) 9 SCM PAGE 1 AT 5.
He submitted that in a murder charge, the Prosecution must prove:-
(i) The death of a human being.
(ii) That the death of the deceased was caused by the act of the accused.
(iii) That the act or acts was done with intention of causing death.
(iv) That accused knew that death would be the probable consequence of his act or acts.
He relied on the case of – OMINI VS STATE (1999) 9 SC PAGE 1 AT 11.
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The evidence of PW1 was referred to on how the deceased (Precious Odeh) was sexually assaulted by the Appellant on 29/5/2010 and that this led to the deceased developing complications that led to her death. The evidence of PW2, PW3, PW4 and PW5 were also referred to. The Confessional Statement of the Appellant and the following Exhibits tendered in Court were also referred to:-
Exhibit “EE” – The Medical Report at Mercy Clinic dated 8/4/2011.
Exhibit “CC” -Coroner Ordinance.
Exhibit “FF“ – Medical Report from Soremekun Hospital, Ifo.
Exhibit “II” – Laboratory report at UCH dated 28/9/2011
Exhibit “JJ” – Medical Report of UCH of Dr. B. J. Brown dated 18/5/2011.
The Learned Counsel for the Respondent submitted that the act of having sexual intercourse with the deceased, a two year old girl by the Appellant caused her death.
Reference was also made to Section 314 of the Criminal Code Law, Laws of Ogun State 2006 and the following cases:-
– TEGWONOR VS THE STATE (2008) ALL FWLR PART 424 PAGE 1484 AT 1501.
– OGBU VS STATE (2007) 4 SCM PAGE 169 AT 173.
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He submitted further that a trial Court can rely solely on the Confessional Statement of the accused to convict him. He relied on – AKPA VS STATE (2008) 8 SCM PAGE 68.
Exhibit “BB” the Confessional Statement of the Appellant was referred to.
It was also submitted that the trial Court complied with the provisions of the law as laid down when admitting the statement of the Appellant in the case of:-
-OSENI VS STATE (2012) 4 SCM PAGE 150 AT 153.
The case of – ISMAIL VS STATE (2011) 10 SCM PAGE 35 AT 39 PARAGRAPH 4 was referred to.
The Learned Counsel for the Respondent also submitted that the Confessional Statement of the Appellant has been sufficiently corroborated by the strong circumstantial evidence of PW1, when she saw the deceased coming out of the Appellant’s room on 29/5/2010. Also that the Appellant admitted giving PW2 N25,000.00 Twenty-five Thousand Naira for the treatment of the deceased.
The Learned Counsel for the respondent finally stated that the trial judge was right when he relied on the evidence of the Prosecution witnesses and the Exhibits in convicting the Appellant. He urged that the Judgment be
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affirmed.
RESOLUTION
The Appellant Ezekiel Ikwe was charged before the trial Court on a single count charge of Murder contrary to Section 316 and Punishable under Section 319 of the Criminal Code Laws of Ogun State 2006.
After the trial he was found guilty of murder and sentenced to death by hanging.
In criminal prosecution, it is trite that the required standard is that of proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011.
If the commission of a crime by a party to any proceeding is directly in issue either civil or criminal, it must be proved beyond reasonable doubt. See the following cases: ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238.
– ABIRIFON VS THE STATE (2013) 13 NWLR PART 1372 PAGE 587.
However, proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt. When the ingredients of any offence the accused is charged with has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt. See the following cases:-
– AJAYI VS THE STATE (2013) 9 NWLR PART 1360 PAGE 589.
– HASSAN VS STATE (2017) 5 NWLR
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PART 1557 PAGE 1.
– AYINDE VS THE STATE (2019) LPELR – 47835 (SC).
– SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447.
The guilt of an accused person can be proved through any of the following methods:-
(i) Through Confessional Statement
(ii) Through Circumstantial Evidence
(iii) Through the testimony of an eye witness/witnesses.
See the following cases:-
– ADEGBOYE VS THE STATE (2017) 16 NWLR PART 1591 PAGE 248.
– ITU VS STATE (2016) 5 NWLR PART 1506 PAGE 433 AT 465-466.
– EZE VS FRN (2017) 15 NWLR PART 1589 PAGE 433.
The Appellant in this case was convicted of murder. The ingredients of the offence of murder are as follows:-
(i) That the deceased died.
(ii) That the death of the deceased resulted from the Act of the Appellant.
(iii) That it was the act or omission of the Accused/Appellant that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
See –EDOHO VS STATE (2010) 14 NWLR PART 1214 PAGE 651.
– IGABELE VS THE STATE (2006) 6 NWLR PART 975 PAGE 100.
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The ingredients of murder enumerated above must co-exist, if any of them is missing then the offence of murder cannot be said to have been proved, hence the Prosecution cannot obtain conviction for murder against the accused person and the Court must exonerate and acquit him of the offence of murder.
In this appeal under consideration, the fact that the deceased (Precious Odeh) is dead is not in doubt. The PW1, PW2 and PW4 gave evidence that the deceased is dead. The PW1 and PW4 gave evidence of how the deceased was sexually assaulted by the Appellant on the 29th May, 2010 and this led to the deceased developing complications that led to her death.
As for the second and third ingredients of the offence of murder, the evidence of PW1, PW2, PW4 and the Confessional Statement of the Appellant, Exhibit “BB” showed that the death of the deceased resulted from the sexual intercourse the Appellant forcefully had with the deceased. The complications which resulted from the sexual intercourse the Appellant, a 35 years old man had with Precious Odeh (deceased), a girl of 2 years of age resulted in her death.
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The evidence of PW1, PW2, PW4 and the Confessional Statement of the Appellant showed that the Appellant’s action was intentional with the knowledge that death or grievous bodily harm was the probable result when a 35years old man had sexual intercourse with a 2year old girl.
Part of Exhibit “BB” the Confessional Statement states as follows:-
“…Precious came to my room by then I was watching sex film a.k.a blue film when Precious entered my room. She did not wear any pant, my matress is on the floor. Precious sat on my matress. I first fingered the girl with my left hand third finger and I used the head of my penis to rub the clitoris, then entered her but all my penis did not enter. It did not reach half of my penis and I released. I released sperm out of my body but I quickly poured it on the matress. When I was doing it the door was half locked so that neighbour would not suspect me. I have finished having sex with the girl Precious when I heard her mother shouting, calling Precious’s name, I
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then asked Precious to go out of the room that her mother is calling her. It was when Precious was having pain in her vagina that the parent took her to …hospital… I want God, the Court and the family of Precious to forgive, forgive me it is the work of devil. It would not happen again…”
A perusal of part of the Appellant’s Confessional Statement reproduced above showed that the Appellant narrated how he had sexual Intercourse with the deceased a 2year old girl.
He stated that he was through with the sexual intercourse with the deceased when he heard PW1 calling for the victim/deceased and he led her out of his room to answer the mother PW1.
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The Confessional Statement of the Appellant corroborated the testimony of PW1 when she testified that after she discovered that her daughter (deceased) was not among other children she called out for her and she then saw the deceased exiting the Appellant’s room and she was crying.
PW1 stated that upon bathing for the deceased later in the day, she made attempt to wash her private part (vagina), when the deceased exhibited discomfort and she pressed further to know what caused the pain and the deceased informed her that it was…….”daddy Pelumi (Appellant) put his bumbum on my bumbum….”
From the foregoing, it could be seen that the sexual intercourse the Appellant had with the deceased led to the complications which made the parent of Precious Odeh (deceased) to take her from one hospital to the other until
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she finally died, several Exhibits were tendered in evidence among which are:-
Exhibit “AA” – Federal Medical Centre referral letter dated 5/10/2010.
Exhibit “DD” – Federal Medical Centre letter dated 11/10/2010.
Exhibit “EE” – Medical report at Mercy Clinic dated 8/4/2010.
Exhibit “FF” – Medical report from Soremekun Hospital, Ifo.
Exhibit “GG” – 3 photographs taken at UCH, Ibadan.
Exhibit “II” – Laboratory report at UCH dated 28/9/2011.
Exhibit “JJ” – Medical report at UCH of Dr. B.J. Brown dated 18/5/2011.
The sexual intercourse caused injury to the vagina of the deceased which made the parent to take her from one hospital to another as a result of the complications arising from a 35 years old man i.e. the Appellant having sexual intercourse with a 2years old girl.
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The harm/injury inflicted on the deceased led to her death.
The PW3 in his testimony stated that upon the referral of the deceased to Federal Medical Centre Abeokuta, she had swelling in the buttocks with abdominal swelling and abstraction: she could not control passage of urine and feaces by herself, also there was swelling at the vulva, the hymen was absent and bruised vagina.
He testified that the hospital diagnosed a forceful penetration and Vesico Vaginal Fistula and this led to the transfer of the deceased to University College Hospital, Ibadan.
It is clear from the foregoing that the Appellant caused the death of the deceased.
The Respondent tendered in evidence Medical Reports on the deceased at the Trial Court.
I am of the view that a Medical Report though desirable in establishing the cause of death but it can be dispensed with where there are facts which sufficiently show the cause of death to the satisfaction of the Court.
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See the following cases:-
– OGBU VS. STATE (2007) 4 SCM PAGE 169 AT 173.
– ONWUMERE VS. STATE (1991) 5 SCNJ PART 1 PAGE 150.
I have reproduced part of the Appellant’s Confessional Statement earlier in this Judgment.
Section 28 of the Evidence Act 2011 defined Confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
In AKPA VS. STATE (2008) 14 NWLR PART 1106 PAGE 72 – it was held among others that an accused person can be convicted on his confessional statement alone when same is positive, direct and proved.
Also in the case of – NWEZE VS. STATE (2018) 6 NWLR PART 1615 PAGE 197 – it was held among others that:
“…A Confessional Statement alone is sufficient to ground a conviction… For a
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confession to secure a conviction, it must have been made direct and positive in relation to the offence for which the Appellant is charged. It must lead to an unequivocal admission of guilt.
See – DANIELS VS. STATE (1991) 8 NWLR PART 212 PAGE 715.
R VS. SYKES (1913) 18 CR APP. R. PAGE 23.”
A Confessional Statement once admitted in evidence becomes part of the case for the Prosecution which the Trial Court is duly bound to consider in determining the probative value of the totality of the evidence adduced by the prosecution.
Also there cannot be a more appropriate person to give evidence of the guilt of the accused more than the accused himself. Therefore, if an accused says that he committed the offence and the Court is of the view that he made the Confessional Statement in a stable mind then the accused must be convicted.
The Learned Counsel for the Appellant contended that the Confessional Statement of the Appellant was not made voluntarily.
The Confessional Statement of the Appellant is Exhibit “BB”. Before the statement was admitted in evidence, a Trial within Trial was conducted at the Trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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A Trial within Trial is required where the allegation is that the confession was not voluntarily made as in this case. The effect is that the accused admits that he made the statement but he did so as a result of force or inducement. See –JIMOH VS. THE STATE (2014) 11 SCM PAGE 216.
In LASISI VS. THE STATE (2013) 9 NWLR PART 1358 PAGE 74 – It was held among others by the Supreme Court as following:-
“Once a Confessional Statement is admitted following a Trial within Trial proceeding, it becomes very difficult for the Appellate Court to intervene on an Appeal against its admissibility as the evaluation of the evidence adduced at the said Trial is based on the credibility of witnesses, which duty is solely that of the Trial Court as the Appellate Court is not privileged to have seen the witnesses testify nor watch their demeanor e.t.c.”
The Appellant in this case has challenged the voluntariness of his Confessional Statement on Appeal. It is trite law that a challenge to the voluntariness of the Appellant’s Confessional Statement ought to be made at the stage of tendering the statement as an Exhibit and not after it has been admitted in evidence and marked as
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Exhibit.
The moment it is admitted as an Exhibit, it has become part of the evidence before the Trial Court which the Court is bound to consider.
I am of the view that for the Appellant to try to retract the Confessional Statement on appeal, it is an afterthought which has no effect.
A retracted Confessional Statement will not affect the statement in any way since the Trial Court found that the said statement is direct, positive and unequivocal.
In this case, the said Confessional Statement was corroborated by the evidence of the Prosecution witnesses.
I am of the view that the Trial Court complied with the Provisions of the Law as laid down in admitting the statement of the Appellant in the case of – OSENI VS. STATE (2012) 4 SCM PAGE 150 AT 153 where the Court stated the questions a Judge must ask himself on the weight to be attached to a Confessional Statement as follows:-
(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 be tested?
(4) Was the prisoner one who had the opportunity of
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committing murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which has been ascertained and have been proved?
In this case under consideration, the Confessional Statement of the Appellant Exhibit “BB” has been sufficiently corroborated by the strong circumstantial evidence of PW1 when she saw the deceased coming out of the Appellant’s room on 29/5/2010. The Appellant also admitted giving PW2 the sum of (₦25,000.00) Twenty-five Thousand Naira for the treatment of the deceased.
The Appellant, a 35 years old man admitted having Sexual Intercourse with the deceased a 2 years old girl on 29/5/2010 in Exhibit “BB”.
The Learned Counsel for the Appellant contended that the contradiction in PW3’s evidence is material and ought to have created doubt in the mind of the Learned Trial Judge as to whether the act which resulted in the death of the deceased was a direct act of the Appellant.
I am of the firm view that there is nothing contradictory in the evidence of PW3. A careful reading of the testimonies of all the prosecution witnesses along with Exhibit “BB” the
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Confessional Statement of the Appellant and his testimony before the Trial Court would reveal that it was the act of the Appellant having sexual intercourse with the deceased that made her buttocks and abdomen to get swollen, she could not pass urine and feaces by herself, the vulva and vagina was swollen. The hospital diagnosed Vesico Virginal Fistula which eventually led to the death of the deceased. See the case of – TEGWONOR VS. STATE (SUPRA).
Furthermore, it is trite law that not all discrepancy, contradictions, and/or inconsistency in the evidence of Prosecution witnesses that will affect the substance of a criminal case that has been proved with credible and unchallenged evidence. See the following cases of – MICHAEL EBEINWE VS. THE STATE (2011) 3 SCM PAGE 46 AT 47.
– NDUKWE VS. STATE (2009) 2 SCM PAGE 147 AT 150.
– MUSA VS. THE STATE (2013) 3 SCM PAGE 79 AT 93.
– ATTAH VS. STATE (2010) 5 SCM PAGE 57 AT 60.
Consequent upon the foregoing, I am of the view that the Prosecution proved the offence of murder against the Appellant beyond reasonable doubt. The Appellant is a danger to the society and he is not fit to live
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among human beings.
The Learned Trial Judge was right when he relied on the evidence of the Prosecution witnesses and the Exhibits tendered in evidence in convicting the Appellant.
Issue numbers 1 and 2 are therefore resolved in favour of the Respondent and against the Appellant. This Appeal lacks merit and it is hereby dismissed.
In the result, the Judgment of the Trial Court in Charge No: AB/5C/2012 – THE STATE VS EZEKIEL IKWE delivered on the 1st day of July, 2016 is hereby affirmed.
Appeal dismissed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion that the appeal is devoid of merit and ought to be dismissed.
Under our adversarial criminal justice system, the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can
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be dismissed with the sentence; “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 All E.R. 372 and MICHAEL vs. STATE (2008) LPELR (1874) 1 at 24. Put differently, proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence: THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.
Having read the Records of Appeal and the briefs of argument filed, I agree with my Lord, Bada, JCA that an insightful and cognitive assessment of the evidence adduced discloses that the Respondent discharged the burden cast upon it by proving the offence charged beyond reasonable doubt and the lower Court rightly arrived at a conviction based on the available evidence.
In the light of the foregoing, I also join in dismissing the appeal. The judgment of the High Court of Ogun
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State in Charge No. AB/5C/2013: THE STATE vs. EZEKIEL IKWE delivered on the 1st day of July, 2016 is hereby affirmed.
FOLASHADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I agree with his reasoning which I adopt as mine, I however wish to emphasise the settled position of the law that the prosecution has a duty to prove beyond reasonable doubt that it is the act of the Appellant that caused the death of the deceased.
It is trite that in a murder trial, cause of death can be proved by direct or circumstantial evidence. Where the prosecution relies on direct evidence such as medical evidence, it must establish by cogent evidence that it is the injury inflicted on the deceased by the accused that led to his death. See Aiguoreghian vs. State (2004) 3 NWLR (Pt. 860)367; Famakinwa vs. State (2016) 11 NWLR (Pt. 1524)538; Ochiba vs. State (2011) 17 NWLR (Pt. 1277)663; Idemudia vs State (1999) 7 NWLR (Pt. 610)202.
In the instant appeal, the Appellant, a thirty five year old male adult sexually assaulted a two year Old
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baby (minor). Evidence on record shows that the Appellant sexually assaulted the deceased which made the parents to seek medical attention for her. From both the medical and circumstantial evidence on record, the only inference that can be drawn is that it is the act of the Appellant that led to the swelling in the buttocks, abdominal swelling, abstraction and vesico vaginal fistula in the baby and which led to her death. The act of Appellant was sufficiently linked to the death of the 2 year old girl. He is culpable and the trial Court was right to have so found.
For this and the much fuller reasons contained in the lead Judgment, I too hold that this appeal lacks merit. I also dismiss it.
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Appearances:
PETER ILEGOGIE with him, MR. O. ILEGOGIE For Appellant(s)
OLUSEGUN T. OLAOTAN Director Public Prosecution Ministry of Justice Ogun State with him, MRS. F. E. BOLARINWA-ADEBOWALE Chief State Counsel Ministry of Justice, Ogun State For Respondent(s)
