IMO AKPAN BASSEY v. THE STATE
(2016)LCN/8522(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of April, 2016
CA/C/26C/2014
RATIO
EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIALS
The duty thrust upon the Court is to consider whether the Respondent has proved the charge of murder against the Appellant beyond reasonable doubt as required by law; Ogundiyan v. State (1991) 1 NSCC 448. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990). While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999 as amended. PER ONYEKACHI AJA OTISI, J.C.A.
CRIMINAL LAW: MEANING OF PROOF BEYOND REASONABLE DOUBT
Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty per Muhammad, JSC in The State v. Azeez (2008) 4 S.C. 188. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152 so pertinently put it:
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
Also most instructive the contribution of A. M. Mukhtar JSC (as he then was) in John Agbo v. State (2006) 7 S.C. (Pt. II) 73, that:
“However, proof beyond reasonable doubt, does not mean proof beyond shadow of doubt, as stated by Denning J. in the case of Miller v. Minister of Pensions 1947 2 All E.R. page 372 at 373 when he said:-
“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, but nothing short of that will suffice.”
‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. PER ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: SOLE WITNESS; WHETHER THE EVIDENCE OF A SOLE WITNESS CAN BE ENOUGH FOR CONVICTION
The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v. State (1988) 1 NSCC 165; Afolalu v. State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36. In Ogedengbe v. State (2014) LPELR-23065(SC), the Supreme Court, Per Fabiyi, JSC reiterated:
“It must be stressed here that in a criminal trial, a host of witnesses is not required by the prosecution to achieve proof beyond reasonable doubt. A single witness who gives cogent eye witness account on a vital point will suffice.”
The evidence of one witness of truth can therefore result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. And, the offence of murder does not fall within the class of offences for which corroboration is statutorily required. PER ONYEKACHI AJA OTISI, J.C.A.
CRIMINAL LAW: WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement.
In Mustapha Mohammed v. State (2007) 4 S.C. (Pt. 1) 1, (2007) 11 NWLR (Pt. 1045) 303, the Supreme Court, per Niki Tobi, JSC said:
“Where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone if the confession is positive, direct and properly proved. See: Milla v. The State (1955) 3 NWLR (Pt. 11) 190; Achbua v. The State (1976) 12 S.C. 63 and Obosi v. The State (1969) 1 NMLR 204. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction. See: Obosi v. The State (supra) and Ataniyi v. The Queen 15 WACA 34. A conviction for murder can be based on the confessional statement of the accused. See Stepheno v. Commissioner of Police (1986) 2 NWLR (Pt. 25) 673 and Mbolo v. The Queen (1964) NMLR 49 at 52.
2. Circumstantial evidence.
A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. Again, in Mustapha Mohammed v. State (supra), the Supreme Court, per Niki Tobi, JSC said:
“For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person. See: The State v. Ifu (1964) 8 ENLR 28. Before an accused person can be convicted for murder on circumstantial evidence, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. See Esai v. The State (1976) 11 SC 39. A conviction for murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics. See The Queen v. Agwo (1956-84) I0 SCND 35. A Court cannot convict on circumstantial evidence, especially in a case of murder where such evidence points in more than one direction. See The Queen v. Iromachi (1956-84) 10 SCNJ 34.”
See also: Ibo v. The State (1971) NMLR 245.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See: Idiok v. The State (supra); Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Pt. 164) 581; Afolalu v. State (supra); Emeka v. State (2001) 88 LRCN 234.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC), (2012) 6-7 MJSC (Pt. 11) 41; Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (Pt. 1) 59. PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
IMO AKPAN BASSEY Appellant(s)
AND
THE STATE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division, delivered by Honourable Justice Imeh E. Umanah on June 30, 2011 in Charge No. HU/21C/2007 in which the Appellant was found guilty of the murder of his two children, Philip Imo Akpan and Magdalene Imo Akpan; and sentenced to death by hanging.
The facts leading to this appeal reveal that the Appellant was charged before the High Court of Justice, Akwa Ibom State, Uyo Judicial Division on a one count charge of Murder, contrary to Section 326(1) of the Criminal Code, Cap 38, Vol. II, Laws of Akwa Ibom State of Nigeria 2000. The Appellant pleaded not guilty to the charge. The complainant was his estranged wife. At the trial, the prosecution called one witness named Sergeant Philip Agara (PW1), a Policeman attached to the Anti-Human Trafficking Unit of the Nigeria Police Force. He tendered three extra judicial statements marked Exhibits A, B and C respectively. The Appellant testified for himself as DW1. At the hearing, the learned trial Judge found the Appellant guilty of murder and sentenced
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him to death. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice and Grounds of Appeal filed on 16/1/2014 upon six grounds of appeal, found at pages 137-140 of the Record of Appeal.
The parties exchanged Briefs of Argument. The Appellant’s Brief settled by Sonny O. Wogu, Esq. on 22/11/2014, was deemed adopted on 8/3/2016. The Respondent’s Brief was settled by Ekpenyong Ntekim, Esq., Honourable Attorney-General, Akwa Ibom State on 16/9/2014 but deemed properly filed and served on 11/5/20l5, and adopted on 8/3/2016 by Eyoh Asuquo, Esq., Assistant Chief State Counsel, Ministry of Justice, Akwa Ibom State.
Out of six grounds of appeal, the Appellant formulated a sole Issue for determination as follows:
Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.
The Respondent adopted this Issue as formulated by the Appellant for determination of this appeal. I shall also adopt this same Issue for determination.
The duty thrust upon the Court is to consider whether the Respondent has proved the charge of murder against the Appellant beyond reasonable doubt
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as required by law; Ogundiyan v. State (1991) 1 NSCC 448. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990). While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999 as amended.
Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to a scientific certainty ? per Muhammad, JSC in The State v. Azeez (2008) 4 S.C. 188. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152 so pertinently put it:
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof
3
that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
Also most instructive the contribution of A. M. Mukhtar JSC (as he then was) in John Agbo v. State (2006) 7 S.C. (Pt. II) 73, that:
“However, proof beyond reasonable doubt, does not mean proof beyond shadow of doubt, as stated by Denning J. in the case of Miller v. Minister of Pensions 1947 2 All E.R. page 372 at 373 when he said:- “Proof
4
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, but nothing short of that will suffice.”
‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness.
The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v. State (1988) 1 NSCC 165; Afolalu v. State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36. In Ogedengbe v. State (2014) LPELR-23065(SC), the Supreme Court, Per Fabiyi, JSC reiterated:
“It must be stressed here that in a criminal trial, a host of witnesses is not required by the prosecution to achieve proof beyond reasonable doubt. A
5
single witness who gives cogent eye witness account on a vital point will suffice.”
The evidence of one witness of truth can therefore result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. And, the offence of murder does not fall within the class of offences for which corroboration is statutorily required.
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement.
In Mustapha Mohammed v. State (2007) 4 S.C. (Pt. 1) 1, (2007) 11 NWLR (Pt. 1045) 303, the Supreme Court, per Niki Tobi, JSC said:
“Where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone if the confession is positive, direct and properly proved. See: Milla v. The State (1955) 3 NWLR (Pt. 11) 190; Achbua v. The State (1976) 12 S.C. 63 and Obosi v. The State (1969) 1 NMLR 204. A free and voluntary confession alone is sufficient without further corroboration to warrant conviction. See: Obosi v. The State (supra) and Ataniyi v. The Queen 15 WACA 34. A conviction for
6
murder can be based on the confessional statement of the accused. See Stepheno v. Commissioner of Police (1986) 2 NWLR (Pt. 25) 673 and Mbolo v. The Queen (1964) NMLR 49 at 52.
2. Circumstantial evidence.
A Court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without any other evidence. Again, in Mustapha Mohammed v. State (supra), the Supreme Court, per Niki Tobi, JSC said:
“For circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that murder had been committed and that it was committed by the accused person. See: The State v. Ifu (1964) 8 ENLR 28. Before an accused person can be convicted for murder on circumstantial evidence, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. See Esai v. The State (1976) 11 SC 39. A conviction for murder on circumstantial evidence must
7
point to the guilt of the accused with the accuracy of mathematics. See The Queen v. Agwo (1956-84) I0 SCND 35. A Court cannot convict on circumstantial evidence, especially in a case of murder where such evidence points in more than one direction. See The Queen v. Iromachi (1956-84) 10 SCNJ 34.”
See also: Ibo v. The State (1971) NMLR 245.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See: Idiok v. The State (supra); Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Pt. 164) 581; Afolalu v. State (supra); Emeka v. State (2001) 88 LRCN 234.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC), (2012) 6-7 MJSC (Pt. 11) 41; Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (Pt. 1) 59.
As rightly submitted for the Appellant, it is the well settled legal position that in a murder case, the prosecution must prove beyond reasonable doubt the following ingredients:-
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(a) That the deceased died.
(b) That the death of the deceased resulted from the act or omission of the Appellant.
(c) That the act of the Appellant resulting in the death of the deceased was intentional with the knowledge that death or bodily harm was its probable consequence.
See: Abogede v. State (1996) 5 NWLR (Pt. 448) 270; Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 198; Igabele v. State (supra); Nwaeze v. State (1996) 2 NWLR (Pt. 425) 1; Gira v. State (1996) 4 NWLR (Pt. 443) 375; Edoho v. State (2010) 4 MJSC (Pt. 1) 1.
Thus, one of the primary ingredients to ground a conviction for murder is that the person who the accused person is alleged to have been killed actually is dead. The essence of this requirement is to eliminate any possible mistake in convicting an accused person over a death of a person who is still alive or over a death which the accused person has no connection with, thereby leading or resulting in a miscarriage of justice.
It is also part of our criminal jurisprudence that a Court may convict an accused person of murder even though the dead body cannot be found, provided that there is sufficient compelling
9
circumstantial evidence to lead to the inference that the man had been killed; Ayinde v. The State (1972) 3 SC 153 at 158-159; Nwokoronkwo v. The State (1972) 1 SC 135; Bassey Akpan Archibong v. The State (2006) 5 S.C. (Pt. 111) 1.
In Princewill v. State (1994) 6 NWLR (Pt. 353) 703, also relied upon by the Appellant, the Supreme Court, per Iguh, JSC said:
“Where, however the corpus delicti is not discovered or there was no autopsy on the deceased’s body, the prosecution, to succeed, must identify the deceased named in the charge as the person allegedly killed by the accused person. See R. v. Momodu Laoye (1940) 6 WACA. 6; State v. Nicholas Uzoagwu & Ors (1972) 2 E.C.S.L.R. (Pt. II) 429. This is it vital so as to eliminate any possible mistake in convicting an accused person over a death he is not connected with and it will also ensure that no miscarriage of justice arises at the trial… So too, where there is positive evidence that the deceased named in the charge had died but the body was not discovered or there was no autopsy on the dead body, the accused may still be convicted of murder based on his confessional statement or other
10
circumstantial evidence which conclusively points to the fact that the accused caused the death. See Edim v. State (1972) 4 SC. 160, Efe v. State (1976) II SC. 75; Ogundipe v. Queen (1954) 14 WACA 458; Ukorah v. State (1977) 4 SC. 167 and Ariche v. State (1993) 6 NWLR (Pt. 302) 752.”
Therefore failure to tender the autopsy report or to produce the body of the deceased will not necessarily be fatal to the prosecution. However, the evidence proffered before the trial Court on which it relied in convicting the Appellant is essential.
Bodies of Philip and Magdalene Imo Akpan were not seen. The Appellant explicitly testified, at page 105 of the Record of Appeal:
“I know Philip Imo Akpan and Magdalene Imo Akpan.
I know them as my children. They are all dead.”
Under cross examination, he said the children died in 1991; page 109 of the Record of Appeal. There was no evidence adduced in contradiction. Philip Imo Akpan and Magdalene Imo Akpan were therefore dead.
The prosecution is required to prove that the death of the deceased children resulted from the act of the Appellant. There must be some nexus between the act of the
11
Appellant and the death of the deceased children. There was no eye witness to the murder of the deceased children. The estranged wife of the Appellant, who reported the case of her missing children to the police, did not testify. The prosecution relied on the extra judicial statements made by the Appellant.
PW1, who was the Investigating Police Officer, testified he obtained statements from the Appellant on 16/1/2007 and on 17/1/2007. These statements were admitted, without objection from the Appellant, as Exhibits A and B respectively. In Exhibit B, the Appellant stated:
‘I did not sell my twins (sic) children one Philip Imoh Akpan ‘m’ 3yrs Old and Magelalen(sic) Imoh Akpan ‘f’ aged 3 yrs… Rather I threw my twsuis(sic) children into a River leading to the big sea at Uyaron in Oron L.G.A. rea(sic).This happened in a (sic) year 2005 but I can not remember the real month. It was because of my poor condition that made me to throws(sic) them into the water, as I did not have money to feed them… The police can not beable(sic) to see or find them again because the time I far and the water must have carried them away.’
As already noted, the
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statements made by the Appellant were admitted without objection. In fact, A. A. Asuquo, Esq. who appeared for the Appellant at the trial urged the trial Court to:
“We urge the Court to admit statement of 16/1/2007 and 17/1/2009(sic) which the witness made.”
See page 90 of the Record of Appeal. The trial Court admitted these statements as Exhibits A and B. Under cross examination, PWI admitted that the decision to charge the Appellant for murder was based on the confessional statement of the Appellant.
The law is clear and settled on the point that for a confessional statement to attract and support a conviction. It must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“… the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed v. State (supra). See also: Dawa v. State (1950) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (Pt. 11) 1; Galadima v. State (2012) 12 MJSC (Pt. 111) 190; Fatai v.
13
State (2013) 2-3 MJSC (Pt. 1) 145.
Where a confessional statement is retracted or its making denied, the trial Court is expected to admit it in evidence as an exhibit and in its judgment, decide whether or not such denial, avails the accused person; Kanu v. R. 14 WACA 30 at 32; Dawa v. The state (supra); Mills v. The State (1985) 3 NWLR (Pt. 11) 190. But, where it is alleged that a confessional statement was not voluntarily made, the considerations are different.
Where an accused person admits making a confessional statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise. At the conclusion of the trial within trial, if the trial Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court; Auta v. The State (1975) 4 S.C. 123; Gbadamosi & Ors v. The State (1992) 9 NWLR (Pt. 266) 465 at 480, (1992) 11-12 SCNJ 1268; Effiong v. The State (1998) 5 SCNJ 158 at 166, (1995) 8 NWLR (Pt. 562) 362; Madjemu
14
v. State (2001) 4 MJSC 113.
The point of proceedings at which a trial within trial ought to be ordered was made clear by the Supreme Court in Okaroh v. State (1990) 1 S.C. 169, (1990) LPELR-2423(SC), per Nnaemeka Agu, JSC:
“… it is always for the learned counsel for the defence, in a case like this in which an accused person is defended by counsel, to raise an objection to the statement being tendered, on the ground that the statement was not voluntary, e.g. allege facts amounting to duress, before a mini-trial becomes necessary. See: The Queen v. Igwe (1960) 5 FSC 55, (1960) SCNLR 158, also Uche Obidiozo & 2 Ors. v. The State (1987) 4 NWLR (Pt. 67) 748.”
In Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 603, (2011) LPELR-1133(SC), the Supreme Court per Fabiyi, JSC, reiterated that the procedural step of ordering a trial within trial must be taken at the point when the objection is raised:
“It is now settled, as pronounced by this Court in Nwamgbomu v. The State (supra) at page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the judge
15
to call upon the prosecutor to establish that it was voluntarily made by conducting a trial-within-trial. Such a procedural step must be taken at the point when the objection is raised. See: R. v. Francis and Murphy (1959) 43 Cr. App R. 174; R. v Onokaro 7 WACA 146. Ogoalo v. The State (1991) 2 NWLR (Pt. 175) 509, Joshua Adekanbi v. Attorney-General Western Nigeria (1966) 1 All NLR 47; Paul Ashake v. The State (1968) 2 All NLR 198 and Auta v. The State (1975) NNLR 60 at 65.” (emphasis mine)
The Record of Appeal reveals that at the trial, in the case on appeal, the Appellant did not object to the admissibility of the confessional statement he made. Rather, it was under cross examination that he denied that he deliberately threw his children into the river, and said that he made one statement to the police. The particular statement, that is, whether Exhibit A or B, was not explicitly identified. An accused person, whose confessional statement has been admitted as evidence without objection, as in this case, cannot in his defence, as if roused from unfathomable slumber, suddenly object to the said confessional statement that has already been admitted in
16
evidence with his assent.
It was the responsibility of learned Counsel who appeared for the Appellant at the trial, to have raised objection, if any, at the point of tendering the confessional statement, Exhibit B. In my considered view, the denial of the said statement by the Appellant in his defence is an afterthought. The learned trial Judge was right to have discountenanced his denial.
There is a recommended requirement that the confessional statement admitted should, conform to the Judges’ Rules, which are conventional rules of caution to guide the Judge in determining the weight to be attached to any confessional statement. One of the requirements of the Judges’ Rules is that the confessional statement should be read over and confirmed in front of a superior police officer for the purpose of attestation or confirmation of the statement. However, as rightly stated by the learned trial Judge, this is not a rule of law. Failure to observe this practice, though commendable, would not, ipso facto, render the statement inadmissible, as long as the statement was made voluntarily; Dibie v. State (2007) ALL FWLR (Pt. 363) 83 at 114; Oguno v. State
17
(2010) LPELR(CA); Eyop v. State (2012) LPELR-20210(CA);
It is always desirable to have outside, the appellant’s confession to the police, some evidence no matter how slight, of the circumstances which made it probable that the confession was true; Emeka v. State (supra); Akpan v. State (2005) 4-5 S.C. (Pt. II) 1; Galadinma v. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Tests to be applied and or followed in determining the issue of weight to be attached to confessional statements were laid down in the case of R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (supra). By these tests, the judge must ask himself these questions:
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 the confession consistent with other facts which have been ascertained and have been proved?
The trial
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judge ought to be satisfied with the answers to these questions, whether or not the confessional statement is retracted; Mbang v. State (2012) 6-7 MJSC (Pt. IV) 119 at 148; Osetola v. State (supra). If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded on it; Edet Obosi v. The State (1965) NMLR 129; Jimoh Yusufu v. The State (1976) 6 S.C. 167; Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383; Lasisi v. State (2013) 2-3 MJSC (Pt. II) 172 at 148. In order to determine if the confessional statement of the Appellant passed these tests, the evidence must be examined.
The confession in Exhibit B is to the effect that the deceased children were thrown overboard into the river by the Appellant because he could no longer provide for their needs on account of hardship. No one witnessed the two children being thrown into the river. Their corpses were never recovered. There was therefore no post mortem report, and no medical evidence as to the cause of death
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before the trial Court. The estranged wife of the Appellant, who was the complainant, did not testify for the prosecution. Although her statement to the police was tendered as Exhibit C, not much use can be made of it. PW1 admitted under cross examination that the complainant never reported a case of murder against the Appellant. She reported a case of suspected child trafficking upon which the Appellant was initially arrested. The Appellant was rearrested and charged for murder upon his confessional statement.
I agree with the finding of the learned trial Judge that the Appellant acted intentionally and with knowledge that death or grievous bodily harm would be the probable consequence of his action. Such action amounts to murder under Section 316(2) of the Criminal Code Law Cap. C.16 Vol. 3 Laws of Cross River State, 2004. I therefore hold that the prosecution proved the offence as charged against the Appellant. The sole issue raised for determination is thus resolved against the Appellant.
This appeal is without merit. It fails and is hereby dismissed. Accordingly, the conviction and sentence of the Appellant is hereby affirmed.
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PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Onyekachi Aja Otisi, JCA. I agree entirely with the reasons therein advanced to arrive at the conclusion that the appeal is not meritorious and should be dismissed.
Accordingly, for the same reasons as are contained in the leading Judgment, I too dismiss the appeal and affirm the conviction and sentence of the Lower Court.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the leading judgment just delivered by my learned brother ONYEKACHI AJA OTISI, J.C.A. and I totally agree with his lordship’s reasoning and conclusions therein.
For the more detailed consideration in the leading judgment, I equally find no merit in this appeal and I accordingly dismiss it.
I consequently affirm the conviction and sentence of the appellant.
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Appearances
Sonny Wogu, Esq.For Appellant
AND
Peter Sunday Bisong, Esq. ( Director, Public Prosecution, Ministry of Justice, Calabar)For Respondent
