JAMES NOAH v. THE STATE (2014)

JAMES NOAH v. THE STATE

(2014)LCN/7242(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of May, 2014

CA/IL/C.67/2013

RATIO

BURDEN OF PROOF: WHETHER THE ONUS LIES ON THE PROSECUTION TO PROVE VOLUNTARINESS OF A CONFESSION MADE BY THE ACCUSED PERSON

It is correct that the law requires the prosecution to prove the voluntariness of a confession made by an accused person which it proposes to give in evidence but this proof only arises where the accused has challenged the admission of his confession on the ground that it was not made voluntarily; or when the court believes that by reason of anything said or done in the course of obtaining the confession, same rendered the confession unreliable. This is the purport of section 29 of the Evidence Act, 2011. It is the process of proving beyond reasonable doubt that an accused confession was voluntary that reads to a trial within trial. This arises where there is an objection at the point the prosecution seeks to tender a confessional statement while prosecuting its case and not after the tendering and admission of the said confessional statement, nor at the close of the prosecution’s case let alone at the end of the accused person’s evidence in chief. In the cases where the apex court held that the prosecution had the burden of prove of the voluntariness of a confession, the accused person’s counsel raised objection at the point of tendering the confessional statement. This distinguishes the case of Adekanbi v. A.G. western Nigeria (1994) 2 NWLR (Pt. 326) 273 relied upon by the Appellant’s counsel from the instant case. In Adekanbi’s case (supra), the learned Counsel for the accused raised to the admissibility of the confessional statement timeously, at the time the prosecution sought to tender the same. This was also the position in the recent Supreme Court’s decision in Augustine Ibeme v. The State (2013) LPELR-20138 (SC) where Ogunbiyi J.S.C. reinstated the apex court’s decision in Dawa v. State 8-11 SC 236; that for an accused person’s Confessional statement to be admitted in evidence, the prosecution has the duty of establishing that it was made voluntarily.

What I am laboring to say is that from decided cases and from the Evidence Act; the burden on the prosecution to establish that the accused persons confession was voluntary arises when his Counsel timeously raises an objection to the voluntariness of the confession, unless the court calls on the prosecution to do so under section 29 (2)(b) of the Evidence Act. The appropriate time is at the point: the prosecution seeks to tender or proposes to give evidence on the confession. Once the confession is not challenged as to its voluntariness, it is presumed that the confession was made by the accused voluntarily and any denial of the confession at defence stage will amount to a retraction of the confession which will no longer place the burden on the prosecution to establish that the confession was voluntary. per UCHECHUKWU ONYEMENAM, J.C.A.

EVIDENCE: WHETHER A COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

“(a) Is there anything outside the confession to show that it is true?

(b) Is it corroborated?

(d) Did the accused person have the opportunity of committing the offence charged?

(e) Is the confession possible?

(f) Is the confession consistent with other facts which have been ascertained and have been proved?”

See: Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; (2011) LPELR-860(SC) Per Rhodes-Vivour at pages 20-21 paras. G-A. See also: R V. Sykes (1913) 8 CR, APP Report 233; Kanu & Anor. v. The King (1952) 14 WACA 30; Dawa v. State (1980) 8-11 SC 236; Nwaebonyi v. State (1992) 5 NWLR (Pt. 233) 709. per UCHECHUKWU ONYEMENAM, J.C.A.

STANDARD OF PROOF REQUIRED IN A CRIMINAL CASE

The standard of proof required in a criminal case is for the prosecution to prove the guilt of the accused person beyond reasonable doubt. See: Section 135 of the Evidence Act. The degree is not one that attains absolute certainty; that is, it is not proof to the hilt. It is proof that carries high degree of probability even though there may be some shadows or iota of doubt. Once the essential ingredients of an offence have been proved and the evidence is so strong against the accused person to leave only a remote possibility in his favour, the case is proved beyond reasonable doubt. See: Miller v. Minister of Pensions (1947) 3 All ER 373; Jua v. The State (2010) 4 NWLR (Pt. 1184) 217.

It is an established principle of law that culpable homicide punishable with death need not be proved only by eye witnesses, circumstantial evidence that is strong, compelling, cogent, unequivocal and point irresistible to the guilt of the accused person can lead to the conviction of the accused. Unlike in the civil cases, the possibility of proving criminal matters charged; by the direct and positive testimony of eye witnesses or by conclusive documents are much more rare. See: Usman v. The State (2014) All FWLR (Pt. 713) 1917; Jua v. The State (supra). per UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

JAMES NOAH Appellant(s)

AND

THE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Kwara State, Ilorin delivered on 2nd February, 2007 in case No: KWS/OM/2C/2005; wherein the Appellant was convicted for the offence of culpable homicide punishable with death under Section 221 of the Penal Code.

By an amended charge dated 16th October, 2006 the Appellant was charged thus:
“That you James Noah on or about 28th day of November, 2003 at about 09.00 hrs in Oke Ode in Ifelodun Local Government Area of Kwara State within the Jurisdiction of this Honourable Court did beat one Adisat Mohammed to death in the course of wanting to have sex with her and thereby committed an offence of culpable homicide punishable with Death contrary to Section 221 of the Penal Code”

The Appellant who was arraigned on 7th November, 2005, pleaded ‘not guilty’ to the single charge.

The Respondent at trial, called 3 witnesses, while the Appellant testified for himself. After the parties closed their respective cases, counsel for the parties filed their written addresses. The learned trial Judge thereafter delivered his judgment on 2nd February, 2007.

Dissatisfied with his conviction, the Appellant filled a Notice of Appeal on 20th June, 2013 pursuant to the order of this Court extending time for the Appellant to appeal out of time.

Briefs of argument were exchanged by Counsel to the parties in line with the rules of Court. Appeal was subsequently heard on 26th March, 2014.

In the Appellant’s brief settled by Mr. Ayodeji Omotoso, the learned counsel raised 2 issues from the 3 Grounds of Appeal for the determination of the appeal. The 2 issues are as follows:
“1. Whether the confessional statements tendered by the prosecution (Exhibits 01, 02, 03 and 04, respectively) were property admitted in evidence as such and properly relied upon by the Court to ground a conviction against the Appellant for the offence of culpable homicide punishable with death under Section 221 of the Penal code?
2. Whether there was cogent, credible and sufficient evidence before the learned trial Judge which proved that the allegedly deceased person had, in fact, died and/or that, if she had, in fact died, the Appellant caused her death, such as to ground conviction against the Appellant for the crime of culpable homicide punishable by death under section 221, of the Penal Code.”

Mr. Kamaldeen Ajibade, the Honourable Attorney-General of Kwara State, in the Respondent’s brief filed on 25th February, 2014 but deemed properly filed and served on 27th February, 2014 adopted the 2 issues formulated by the Appellant.
I shall resolve the appeal the 2 issues stated above.

Issue 1
Mr. Omotoso invited the court to pages 76, 78 and 79 of the record to submit that the learned trial Judge was in error to admit and evaluate Exhibit 01 as a confessional statement. On what a Confessional statement is and when a Court can admit and rely on a statement as a confessional statement, he relied on section 27(1) and (2) of the Evidence Act, 2011; Shazali v. The State (1988) 5 NWLR (Pt. 93) 164.

The learned counsel conceded to the appropriate time to challenge the admissibility of a confessional statement. He however submitted that notwithstanding the fact that the Counsel to the Appellant at the lower court failed to object to the voluntariness of the confessional statements at the appropriate time, the onus still rested on the prosecution to prove that the said confessional statements were obtained from the accused person voluntarily. He cited: Adekanbi v. A.G. Western Nigeria (1994) 2 NWLR (Pt. 326) 273 at 290. He added that this is more importantly since the Investigating Police Officer who attested to the statements became deceased before the trial.

Mr. Omotoso further submitted that the learned trial Judge did not properly evaluate and assess Exhibits 01-04. He cited: State v. Salawu (2011) 8 NWLR (Pt. 1279) 580 at 625. The learned Counsel contended that the trial Court was in error to attach significant weight to Exhibits 01 – 04 even upon retraction of the Confessional statements by the Appellant. He relied on: Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 at 25 – Per Rhodes-Vivour JSC; R. V. Sykes (1913) 8 CR. APP. Report 233; Kawu v. The King (1952/1955) 14 WACA 30; COP v. Ude (2011) 12 NWLR (Pt. 260) 189 at 219; Nwaebonyi v. State (1992) 5 NWLR (Pt. 233) 709; Dawa v. State (1980) 8-11 S.C. 236 at 26.

At paragraphs 4.1.17.1 to 4.1.17.2 (i), (ii), (iii), (iv), (v) and (vi) at pages 10-14 of the Appellant’s brief of argument; the learned Counsel for the Appellant highlighted facts in and outside Exhibits 01-04 which, if the trial Court had properly evaluated, would have rendered the Confessional statements weightless. He urged the Court to hold that there were no credible or proved facts with which the confession was consistent and, when tested against other available evidence, the relevant statements made by the Appellant cannot be said to be true.

The learned counsel then urged the court to resolve the issue in favour of the Appellant.
In response, Mr. Ajibade, the Honourable Attorney-General of Kwara State conceded that where a confession is retracted, there must be some corroboration no matter how slight before a Court can rely on the confession to convict. However, he contended that a conviction will not be quashed simply because it is based solely upon the confession of an accused person. He relied on: Gabriel v. The State (2010) 6 NWLR (Pt. 1190) 280 at 290; Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543.

The learned Attorney-General contended that the learned trial Judge was right in admitting Exhibit 01 since its admission was not objected to. He added that the trial court was entitled to act on both the admissions in Exhibits 02-04; and the denial in Exhibit 01. He cited: Jonathan Igbi v. The State (2002) 2 SC 67.

He referred to paragraph 4.1.9. of the Appellant’s brief to contend that the prosecution had no burden of prove of the voluntariness of the Appellant’s confessional statements since same were not objected to. He added that the case of Adekanbi v. A.G. Western, Nigeria (1994) 2 N.W.L.R (Pt. 326) 273 is not apposite to the situation in this case; also that the confession of the Appellant is consistent with all the conditions laid down in the case of R. v. Sykes (1913) 8 CR APP. Report 233 and approved by the Supreme Court in Oladipupo v. The State (2014) ALL FWLR (Pt.712) 1727.

The learned Attorney-General submitted that the defence of alibi must necessarily fail because the Appellant did not furnish the Police with particulars to allow for cross checking. He relied on: Eze v. The State (1976) 7 S.C. 125; Ojiako v. The State (1991) 2 NWLR (Pt. 175) 578.

Finally, on the state of the recovered dismembered body of the deceased, Mr. Ajibade submitted that the evidence of PW1 and PW2 were in no way contradictory.
He urged the court to resolve Issue 1 in favour of the Respondent.

In his reply brief, the Appellant largely reargued his brief. He referred to paragraph 3.13 of the Respondent’s brief to allude that the Respondent therein adduced fresh evidence not on record and without leave of the Court. He contended that the Respondent’s brief cannot substitute evidence. He cited: Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Igwe v. AICS (1994) 8 NWLR (Pt. 363) 459 at 481 and other authorities.

RESOLUTION OF ISSUE 1
A confession is an oral or written statement of an accused expressly acknowledging guilt. It is the acknowledgment of the truth of the main fact charged or ingredients of some essential part of the charge. See Black’s Law Dictionary, 9th Ed. By our law;
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
See: Section 28 of the Evidence Act, 2011.

On when confession is relevant, section 29 of the Evidence Act provides thus:
“1. In any proceeding, a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuant of this Section.
2. If, in any proceeding where the prosecution proposes to give in evidence a confession made by a Defendant, it is represented to the Court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
3. In any proceeding where the prosecution proposes to give in evidence a confession made by a Defendant, the Court may of its own motion require the prosecution, as condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.
5. In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture”
The section in providing for when confession is relevant; imposes the well settled condition that the confession must be voluntary. In the instant case, the learned trial Judge at page 76 lines 6-18 of the record noted thus:

“It is to be noted when these documents, Exhibits 01-04 were sought to be tendered in evidence, there was no objection to their admissibility by the learned Counsel to the accused who was present in Court. It is trite law that where an accused person is defended by Counsel, it is the duty of such Counsel to object to the tendering of a statement purportedly made by the accused if the statement was not voluntarily made.”

From the record, it is not dispute that the Appellant made confessional statements which were received in evidence without objection from the Appellant’s Counsel. So in the case at hand where the prosecution proposed to give in evidence the confessional statements made by the Appellant, there was no representation to the court that the confession was or may have been obtained by oppression of the Appellant or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render untenable the confession made by the Appellant in such consequence to have warranted the trial court not to allow the confession to be given in evidence against the Appellant except in so far as the prosecution proves to the court beyond reasonable doubt that the confession though true was obtained voluntarily.

It is important to note that Exhibit 01-04 are statements that were made by the Appellant in the course of investigation into the case. The Appellant knew he made confessional statements and affirmed in Court that from when he made the confessions up and until he was giving evidence under cross examination he had never told anyone that he was tortured before he volunteered his confession to the Police. See page 43, of the record. The Appellant’s Counsel was given the opportunity to examine Exhibits 01-04 which he did and did not object to any. The Exhibits which are relevant to the case and admissible in evidence were admitted without objection.

In this case, the learned counsel for the accused person did not object to the admissibility of the confessions. The accused in his evidence in Chief did not even allude to making his confessions under torture. He never mentioned to anyone even his counsel that his confession was not voluntary. It was only during cross-examination that for the first time, he made the voluntariness of his confession an issue. He seems in my view to have lost the opportunity to pull the law on his side to place the burden of establishing the voluntariness of his confession in Exhibits 02-04 on the prosecution. It was rather late for the prosecution who had closed his case to be saddled with the burden of reopening his case in order to establish that confessional statements which were admitted without objection were actually made voluntarily, I do not know of any such procedure in our legal system. However, if such is allowed it will have unhealthy ripple legal effects in that not only will the learned trial Judge be sitting on appeal over his decision admitting the statements, proceedings in Court will run amok with high degree of unwholesome surprise and uncertainties.

Accordingly, with the facts and circumstances of the instant appeal, I hold that the prosecution was not under any legal burden to prove that the Appellant’s confession were voluntary. The Appellant’s denial of his confession in his evidence under cross examination amounts to a retraction of his confessions. I will come back to that later in this judgment.

Let me quickly state that the case of Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; goes to no issue as the facts and circumstances are clearly distinguishable from the present case. In Ogudo’s case, the learned counsel for the accused observed that the Confessional statement was not signed but did not object to its admission. The apex Court held that the statement was rightly admitted in evidence although it was not signed and was also retracted by the accused. The Supreme Court also made it clear that the legal status of the unsigned confession had to do with the weight to be attached to it since its admissibility was not objected to. The apex Court on the Confession held that the trial Court was wrong and traded on the path of danger by convicting the accused on a retracted and unsigned confessional statement. Apart from the distinct nature of the case of Ogudo v. The State (supra) Rhodes-Vivour J.S.C. stated categorically that;
“The time to object to the voluntariness of a Confessional statement is at the time of tendering the statement and not when the accused opens his defence or during that defence.”
From the foregoing, it will be correct for me to add that once an accused person’s counsel fails to timeously object to the admission of a confessional statement and which is at the point: that the prosecution seeks to tender same; and the said statement is eventually admitted in evidence, the accused person looses the opportunity of challenging the voluntariness of his confession and the burden of proving the voluntariness of the confessional statement ordinarily placed on the prosecution ceases to exist. This also follows the general presumption of law that the formal requisites for the validity of all official acts were complied with so long as they are shown to have been done in a manner substantially regular. This position of the law is captured by the latin maxim, omnia praesumuntur rite esse acta which means that all acts are presumed to have been done rightly and regularly until the contrary is proved. In the present case, the PW2 gave evidence as to the regular manner the Appellant’s Confessional Statements were taken. Since the Appellant’s Counsel did not object to their admission at the point of tendering them in evidence, the general presumption is that the confessional statements were voluntarily made. What will follow after wards can only affect or determine the weight the trial court would attach to the confessional statements. See: Ogudo v. State (supra). So in all, I hold that the learned trial Judge rightly admitted Exhibits 01-04 in evidence. This takes us to the next question, which is whether the learned trial Judge properly evaluated Exhibits 01-04.

The Appellant’s grouse herein is that, in view of the fact that he retracted his confessional statements, the trial court failed in its duty to properly evaluate and assess those statements in the con of the evidence adduced. Also the learned trial Judge failed to properly apply the tests laid down in R v. Sykes (1913) 8 CR APP Report 233 before attaching significant weight to the alleged confessional statements of the Appellant. The Appellant therefore contended that, had the learned trial Judge properly applied the tests, his finding on the alleged confessional statements would have been different.

Retracted confessions are normally extra-judicial statements which amount to confessions but which are inconsistent with testimony at the trial. Whereas the inconsistency rule deals with such extra judicial statement which is inconsistent with the testimony at trial if the maker is a witness, the rule does not apply to a retracted statement of an accused person. See: Onubogu v. State 1974 a SC 1; Egboghonome v. State 1993 7 NWLR (Pt. 906) 383.

Generally, a Court can convict on a retracted Confessional statement of an accused person. However, before a court does this, it must evaluate the confession and testimony of the accused and at other available evidence. As in the present case, for the learned trial Judge to properly convict the Appellant based on his retracted confessions, he would have examined the new line of story of the events as presented by the Appellant at trial which is different from his retracted confessional statements and ask himself and answer in the affirmative the following questions:
“(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved?”
See: Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1; (2011) LPELR-860(SC) Per Rhodes-Vivour at pages 20-21 paras. G-A. See also: R V. Sykes (1913) 8 CR, APP Report 233; Kanu & Anor. v. The King (1952) 14 WACA 30; Dawa v. State (1980) 8-11 SC 236; Nwaebonyi v. State (1992) 5 NWLR (Pt. 233) 709.
The apex court Per Iguh, J.S.C. (as he then was) in Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543; succinctly put it thus:
“The fact that the accused did subsequently retract his confession does not mean that the court cannot act on it and convict him accordingly as the circumstances of the case justify it. See: Nkwuda Edamine v. The State (1996) 3 NWLR (Pt. 438) 530; Dapere Gira v. The State (1996) 4 NWLR (Pt. 443) 375 at 388. It is, however, desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slight, but a conviction will not be quashed merely because it is based entirely upon the evidence of d confession by the Appellant. See R V. Ajayi Omokaro (1941) 7 WACA 146.”

Relying on the tests to be applied as laid down in R. V. Sykes (supra) and followed in Ogudo v. the State (supra); the learned Counsel for the Appellant contended that, there are strong and compelling independent facts in and outside Exhibits 01 – 04 which if the learned trial Judge had properly evaluated, would render those confessional statements weightless. I shall examine such facts as argued at paragraphs 4.1.17, 1 – 4.1.17.2 at pages 10 – 14 of the Appellants brief.

On Exhibit 01 – the statement of the Appellant dated 4th December, 2013. This was the first statement the accused made. I have read Exhibit 01, I have no difficulty in accepting the position of the Appellant that, Exhibit 01 is by no means a confessional statement. In the Exhibit the Appellant denied committing the offence. It is also correct as argued by the Appellant’s Counsel that Appellant in Exhibit 01 raised an alibi which was not considered by the learned trial Judge. However, from the record, the only reference to the defence of alibi in Exhibit 01 is the statement, “It is the son of Daniel Nege Bako Daniel who can tell better about the whole incident, because I was not with them when the incident happens (sic).” The Appellant did not substantiate the alibi; he did not furnish the police with particulars to allow them cross check the alibi. This in law falls short of the defence of alibi which could avail the accused person. See: Eze v. The State (1976) 1 SC 125; Ojiako v. The State (1111) 2 NWLR (Pt. 175) 578. I therefore hold that, although the Appellant raised alibi of some sort, which the police did not investigate, and which the learned trial Judge did not consider, this did not in any way occasion a miscarriage of justice as the Appellant in law failed to properly raise the defence of alibi.

Although Exhibit 01 was properly admitted in evidence, the learned trial Judge was in error to evaluate and rely on Exhibit 01 alongside Exhibits 02-04 as confessional statements. To the effect that the Appellant first denied being responsible for the death of the deceased by Exhibit 01, then confessed to the killing of the deceased in Exhibits 02-04 and later in his testimony under cross examination retracted the confessions, squares up the instant appeal with the case of Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543. The only slight difference between the case of Nwachukwu (supra) and the instant appeal is that in Nwachukwu’s case (supra) and the Appellant’s first denial was oral. This however makes no legal difference because an extra-judicial confession, whether made orally or in writing carries the same weight. See: Nwachukwu v. State (supra); Olusegun Otufale & Ors. v. The State (1968) NMLR 261.

The decision of the apex court in the case of Nwachukwu v. The State (supra) which is on all fours with the instant appeal, is that the mere fact that the Appellant retracted his confession was not enough for the appellate court to interfere with the conviction and sentence of the Appellant to death since there was some form of corroboration. The question that arises therefore, is whether there exists some form of corroboration to the retracted confessions from the credible evidence available before the trial Court.

The Appellant’s Counsel in submitting that there was no or insufficient independent credible evidence outside the Appellant’s confession referred to the judgment of the trial court at pages 75 to 76 of the record to submit that the summation of evidence by the learned trial Judge and his conclusion are wrong for reasons I shall resolve hereunder.
On the contention of the Appellant that the only evidence before the court to the affect that the deceased was last seen with the Appellant was hearsay which is not admissible under Sections 37(a) and 38 of the Evidence Act; Mr. Ajibade the learned Attorney General of Kwara State for the Respondent referred the court to the evidence of the Appellant at page 43 of the record.

At line 21 of page 43 of the record, the Appellant under cross examination stated thus:
“As at the time I was leaving the farm that day, Daniel was no longer on (sic) the farm”

This piece of evidence in my view is sufficient credible evidence to the fact that the Appellant who was in the farm with Daniel and the deceased was last seen with the deceased. So, the learned trial Judge had admissible evidence in support of his finding that the Appellant was last seen with the deceased.

The evidence of PW1 and PW2 to the effect that it was the Appellant that led them to the locations in the bush where they recovered the dismembered parts of the deceased body; which evidence was believed by the trial court and relied upon in concluding that the dismembered parts of the deceased’s body were found because the Appellant led the search team to the sections of the bush where the parts were recovered, in my opinion was the right conclusion based on the facts available in the record.

Contradictions or discrepancies must be on material facts which can create reasonable doubt before an accused can be discharged on it see: Agbo v. The State (2006) 1 SC (Pt. 4) 73.

The Appellant referred to pages 34 and 37 of the record as to the two areas he alleged there were material contradictions in the testimonies of PW1 and PW2. At page 34 lines 4-6, the PW1 stated thus:
“When the accused was asked to direct us to where the woman was killed, it was the accused who led us, even with handcuffs, to where we eventually discovered the dismembered body of the deceased.”
The PW2 at Page 37 lines 15-18 said:
“I was active in the investigation of the case when the case was incidented to us; we went to the scene of crime at Oke-Ode to recover parts of the deceased that have been dismembered. This is because he told us that after he had killed the woman he dismembered her body and scattered it all over the bush.”
Yet under cross examination PW2 said:
“When we visited the scene of the (sic) crime, the accused was always with us. He was the person who led us to the scene of crime.”

The Appellant’s counsel did not look at the evidence of the PW2 in full and that is why he was under the erroneous impression that there was contradiction in the evidence of PW1 and PW2. The overall view of the evidence of PW2 which is his evidence in chief and under cross examination clearly shows that the material substance of his evidence is the same with that of the PW1. The material fact here is that the Appellant led PW1 and PW2 amongst others to the place the dismembered parts of the deceased’s body were recovered. I hold that there was no contradiction in this aspect of the evidence of PW1 and PW2.

On the alleged discrepancies in the evidence of PW1 and PW2 on the state of the dismembered parts of the deceased at their point of recovery, the PW1 gave evidence that,
“I was able to recognize the head and the hands because they were not affected. They had not rotten. Even the legs were not rotten when we discovered them. This was really a surprise to all of us who saw these things”.
PW2 on this said;
“Before we were able to recover the dismembered parts, they had started decomposing even though they would still be recognized as parts of human being”.

The discrepancy which will be held to be on material fact that will create doubt in the mind of the Court is the evidence of any of the witnesses to the effect that the dismembered parts had decomposed beyond recognition as parts of human being. Neither of the witnesses gave evidence to that effect. The import of the evidence of both witnesses remain that although the dismembered body had started decaying but that they had not decayed beyond identification as they could still be recognized as human parts; and PW1 recognized same as his late sister’s body’s parts. The Appellant failed in his evidence to create doubt in the mind of the Court by giving evidence that the dismembered parts had decomposed beyond recognition. The learned trial Judge without such doubt raised in his mind, believed the evidence of PW1 and PW2 that the dismembered parts of the deceased were in a state that they could still be recognized and that in fact PW1 identified them as the parts of her deceased sister’s body.

I do not see any discrepancy nor contradiction in the evidence of PW1 and PW2 on this; If any exist at all, it is not on material fact that could have created doubt in the mind of the learned trial Judge to warrant a discharge of the Appellant.

The law is settled that where in a criminal case, a finding of fact by the trial Court is supported by evidence, an appellate Court will resist the interference with such finding unless it is obviously perverse.
See: Igbi v. State (2000) 3 NWLR (Pt. 648) 169. The wrong admission, evaluation and reliance of Exhibit 01 as a confessional statement though worthy to be frowned at, I must say, did not occasion a miscarriage of justice and as such cannot warrant the setting aside of the decision of the trial Court by this Court.

I am not unaware and unmindful of the statement of per Rhodes-Vivour J.S.C. who while delivering the lead judgment in Ogudo v. The State (supra) at page 329 said:
“No matter how rampant or reprehensible armed robbery is in the society, Judges who sit to hear such cases should strive to be detached and seek justice with an open mind…. before conviction on a retracted Confessional statement, such a statement must be subjected to detailed scrutiny”
On the scrutiny of the retracted confessional statement, although the learned trial Judge did not meticulously pass the confession through the tests in R V. Sykes (supra), I am convinced that the confession of the Appellant is consistent with the conditions laid down in R V. Sykes as followed by the apex Court in Oladipupo v. The State (2014) All FWLR (Pt. 712) 1727; in that:
(a) The credible evidence of the prosecution that the Appellant led the police team to the sections of the bush where they recovered the dismembered body of the deceased is a clear proof that the confession is true.
(b) There was credible evidence of PW1 and PW2 which corroborated the confession of the appellant.
(c) The facts contained in the confession are true as far as can be tested.
(d) The Appellant by the circumstances of this case had all the opportunity of committing the offence as he was last seen with the deceased in the farm.
(e) The confession of the Appellant is possible.
(f) The confession is consistent with the facts ascertained as proved by the evidence of PW1 and PW2.

In all, I hold that in view of the above, the retracted Confessional statements which are Exhibits 02-04 were properly admitted and relied upon to ground conviction of the Appellant for the offence of culpable homicide.
I resolve issue 1 in favour of the Respondent.

ISSUE 2
Mr. Omotoso for the Appellant referred to Section 221 of the Penal Code for the ingredients of the offence of culpable homicide punishable with death. He relied on: Jua v. State (2010) 4 NWLR (Pt. 1184) 217 at 250.

He noted the fact that the standard of proof required in criminal cases is for the prosecution to prove the guilt of the accused person beyond reasonable doubt. He leaned on Section 135(1) of the Evidence Act. He submitted that, there is no onus on the accused person to establish his innocence. He cited: Okeke v. State (1995) 4 NWLR (Pt. 392) 676.

The learned Counsel at paragraphs 4.2.3.1 – 4.2.3.3. examined sequentially, the evidence adduced by the prosecution viz-a-viz the ingredients of the offence of culpable homicide which the learned trial Judge relied upon in convicting the Appellant.

On whether the ingredients of culpable homicide had been proved by the prosecution, he adopted Appellant’s arguments in issue 1 above and reiterated that Exhibits 01, 02, 03 and 04 were erroneously relied upon by the learned trial Judge.

The learned counsel for the Appellant submitted that the failure of the prosecution to call Daniel Nege and Bako Daniel who the Appellant mentioned in Exhibit 01 as responsible for the death of the deceased, and the hunters who were allegedly actively involved in the search for the deceased and recovery of the dismembered parts of the deceased is fatal to the case of the prosecution. He cited: COP v. Ude (2011) 12 NWLR (Pt. 1260) 189 at 222; Oguonzee v. State (1998) 5 NWLR (Pt. 557) 521. It was contended further for the Appellant that failure to call the above referred vital witnesses raises the presumption that had they been called their evidence would have been against the prosecution. He relied on: Section 167 (d) of the Evidence Act, 2011; Omotayo v. State (2013) 2 NWLR (Pt. 1338) 235.

Mr. Omotoso for the Appellant referred to pages 75 to 76 of the record on the circumstantial evidence relied upon by the trial Court, in convicting the Appellant to submit that it falls short of the circumstantial evidence that could in law ground a conviction. He cited: Ahmed v. Nigerian Army (2011) 7 NWLR (Pt. 1227) 89; Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87; Omotoya v. The State (supra); State v. Edobor (1975) 9-11 SC 69; Eze v. State (1976) 1 SC 125; Mohammed v. State (2008) 13 NWLR (Pt. 1050) 186.

The learned counsel urged the court to resolve the issue in favour of the Appellant.
Mr. Ajibade, the Honourable Attorney-General of Kwara State referred to the judgment of the trial Court at pages 72-82 to submit that the prosecution proved its case beyond reasonable doubt. On what prove beyond reasonable doubt is, he cited: Miller v. Minister of Pension (1947) 2 All ER 371 at 373; Lori v. The State (1993) 2 NWLR (Pt. 273) 1 at 13

The learned Attorney General noted that there was no eye witness account of the murder of the deceased in this case. He added that what existed and which the learned trial Judge rightly relied on in his judgment was circumstantial evidence. On the efficacy of circumstantial evidence in establishing and sustaining proves beyond reasonable doubt, he relied on: Usman v. The State (2014) All FWLR (Pt. 713) 1917 at 1925. Equally, on the ingredients of the offence, he cited : Usman v. The State (supra).

He referred to the evidence of PW1 and PW2, Exhibits 05, 06, 07, 08, 09 and 10A with the contents of Exhibits 01-04 to submit that the prosecution established beyond reasonable doubt the death of the deceased at the farm where she went to fetch firewood.

He added that the evidence of PW1 and PW2 at pages 32-40 of the record and the unchallenged evidence that the hunters and police met the accused/Appellant washing his blood stained cloth as well as the content of Exhibits 01-04; established the second and third ingredients of the offence.

Mr. Ajibade, A-G, submitted that since the cause of death of the deceased was not subject to controversy before the trial Court, there was no need for medical evidence to substantiate the sale. He cited: Enowoh v. The State (1989) 4 NWLR (Pt. 49) 98

On the evidence of PW1 being the brother of the deceased, Mr. Ajibade conceded that testimony of blood relation of a deceased person against an accused person in a trial for a capital offence needs to be taken with caution. He cited: Nwaemereji v. The State (1997) 4 NWLR (Pt. 497) 65; Opeyemi v. The State (1985) 2 NWLR (Pt. 57) 101; Ahmed v. Nigeria Army (2011) 7 NWLR (Pt. 1227) 89 at 112-113. However, the learned Attorney General; referred to: Ubani v. The State (2003) 39 WRNN at 55; Akalonu v. The State (2002) 12 MJSC 128; to submit that it is not the law that the fact of the existence of a relationship between the deceased and a prosecution witness by itself necessarily disqualifies his testimony.

He finally urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 2
To sustain a case of culpable homicide, it is trite that the prosecution must establish:-
(a) The death of the deceased
(b) That the death was caused by the accused person
(c) That the accused person intended the death of the deceased or to cause him grievous bodily injury.
See: Section 221 of the Penal Code; Ahmed v. The State (2001) 12 SCNJ 1; Jua v. The State (2010) 4 NWLR (Pt. 1184) 217; Usman v. The State (2014) All FWLR (Pt. 713) 1917.

In the instant appeal, there was no eye witness account of the culpable homicide for which the Appellant was charged. The learned trial Judge based his conviction on the circumstantial evidence that the ingredients of the offence were proved beyond reasonable doubt.

On the first ingredient of the offence, the Appellant’s grouse is that there was no cogent and compelling evidence that it was the person whose death the Appellant was accused of causing who died and whose dismembered body parts were recovered on the farm.

From the record it is correct that PW1 and PW2 agreed that the corpse found had been dismembered and the body parts scattered at different locations of the bush. The two witnesses also noted that the head and hands when recovered had not rotten beyond recognition as PW1 the brother of the deceased could still recognize the parts as parts of his sister’s body. It is also a fact that there was no medical examination establishing that the dismembered human parts were those of Adisat Mohammed. At pages 34, lines 1-10, 35 lines 22-23; it is clear that the trunk of the deceased was discovered the following day after the murder. Thereafter as can be seen from the record at pages 34 lines 24-37; 37 lines 31-32; the other parts of the deceased were still recognized and identified as human parts by the PW2 who did not know the deceased and as his sister’s parts by the PW1. I am of the opinion that the absence of medical report was not fatal to the case of the prosecution. Since the fact that the trunk of the body was discovered and identified by the PW1 as that of the deceased the next day was not subject of controversy even if the other parts had rotted beyond recognition that alone was enough to establish the death of the deceased. Even when the body is not seen, the apex court has held that once there is strong circumstantial evidence as to the death of the deceased, the ingredient of the death of the deceased would be held established. See: Jua v. The State (supra).

From the evidence of PW1 and PW2 and Exhibits 01-10A, I hold that the learned trial Judge was right to conclude that the ingredient of the death of the accused was proved.

On the second and third ingredients, while resolving issue 1, I had arrived at the conclusion that it correct that it was the Appellant that led the PW1; PW2 and others to where the dismembered parts of the deceased were recovered. I also agreed with the learned trial Judge that from the evidence before him, the Appellant was last seen with the deceased. The onus was therefore on the Appellant to state the whereabouts of the deceased or how she met her death. The Appellant failed to give any evidence leading to the answer of the deceased whereabouts or how she met her death. The cogent, compelling and uncontroverted evidence of the PW1 and PW2 that it was the accused who personally led them to the sections of the farm and bush where they recovered the dismembered parts of the deceased point irresistible to the fact that it was the Appellant who was last seen with the deceased and who could not give account of her whereabouts afterwards or how she met her death that caused her death. This is the underlying principle of the ‘Last seen Theory’. See: Jua v. The State (supra); Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349.

It is my view therefore, that since the learned trial Judge accepted the evidence that the deceased was last seen with the Appellant and rightly rejected the Appellant’s denial. The only irresistible inference that can be drawn owing to the facts and circumstances of this case is that the Appellant killed the deceased and that he intended to so kill her. I find it most difficult from the facts disclosed at the record to draw any reasonable inference different from the one the learned trial Judge drew. I hold that the circumstantial evidence from the facts of this case has pointedly proved the guilt of the Appellant beyond reasonable doubt. From the circumstances of the case, the Appellant was undeniably well trapped in the web ‘Last Seen Theory’ and the fact that he personally led the team and showed them where he scattered the dismembered parts of the deceased. The learned trial Judge was right to hold that the prosecution proved the ingredients of the offence.

While the prosecution has the burden to prove its case beyond reasonable doubt, the number of witnesses called by the prosecution is immaterial to ground conviction. So far as the prosecution calls witnesses that ensure it discharges its onus of proof, no law compels it to call every eye witness or any particular witness for that matter. See Bright v. The State (2012) LPELR-3967(SC) 2010; Iziren v. The State (1993) 9 NWLR (Pt. 420) 385.

In the instant appeal, the fact that the prosecution did not call Daniel Nege, Bako Daniel or any of the hunters to give evidence when it could still prove its case beyond reasonable doubt was not fatal to the prosecution’s case.
On the evidence of PW1 who is the blood relation of the deceased, the learned counsel for the Appellant contended that the learned trial Judge failed to exercise caution and be circumspect in relying on his evidence. The mere fact that a witness in a culpable homicide trial is a blood relation of the deceased does not make him a tainted witness. See: Akalonu v. The State (2002) 12 MJSC 128. The apex Court emphatically positioned the state of the law when it held thus:
“It must be stressed here that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. Evidence of a relation can be accepted if cogent enough to rule out element of falsehood and bias. What a Court must consider as an abiding factor is the truthfulness of the witness touching on his integrity, veracity and knowledge of the matter.”
See: Obidike v. The State (2014) LPELR-22590 (SC). See also Arehia & Anor v. The State (1982) 4 SC 78 at 92; Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521.

There is nothing on record that points to the element of bias of PW1. The learned trial Judge who observed his demeanor while he gave evidence accepted and believed his evidence as against that of the accused person (Appellant). I find no reason to believe otherwise. I therefore hold that the evidence of PW1 though the brother to the deceased was rightly accepted by the trial Court.

It is correct as contended by the learned counsel for the Appellant that the evidence of PW1 that he was informed by one Daniel, that it was the Appellant that was last seen with the deceased before her death is hearsay evidence and by Sections 37 and 38 of the Evidence Act, 2011 inadmissible. However, outside this hearsay evidence, there was still admissible and cogent evidence before the trial Court that the Appellant was last seen with the deceased before her death. From the record, particularly the extra judicial statements of PW1 and the Appellant; Exhibits 02-01, it is not in dispute that while one Daniel and Appellant were working in neighbouring farms, the deceased came to fetch fire wood. The Appellant admitted that the said Daniel left the farm before him while the deceased was still fetching her fire wood. See Exhibit 03 and Appellant’s answer to the Court.
In Exhibit 03, the Appellant stated thus:
“………. and the woman said, she will not allow firewood to damage the cassava sticks, and that was how Daniel Lege left me in the farm with Iya Fatimoh, and after some minutes when I discovered that Daniel Lege had gone…., I now dropped my hoe and I went straight to Iya – Fatimoh…..”
Again answering the court at page 43 line 21, the Appellant said:
“As at the time I was leaving the farm that day, Daniel was no longer on the farm.”

From the Appellant’s own evidence, the trial Court was right in concluding that the deceased was last seen with the Appellant before her death and that based on that the prosecution proved that the Appellant caused the death of the deceased.

In all I resolve issue 2 in favour of the Respondent.

Having resolved the 2 issues all in favour of the Respondent, the appeal has no legs to stand as same lacks merit. Appeal therefore fails and is hereby dismissed.

I affirm the judgment of the High Court of Kwara State, Ilorin delivered on 2nd February, 2007 in case No. KWS/OM/2C/2005 convicting the Appellant for culpable homicide punishable with death under Section 221 of the penal code.

The sentence of the Court upon you the Appellant, is that you be hanged by the neck until you be dead and may the Lord have mercy upon your soul.

HUSSEIN MUKHTAR, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother Uchechukwu Onyemenam, JCA. I agree with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed. For the comprehensive reasons given in the lead judgment, the appeal is hereby dismissed. I subscribe to all the consequential orders made in the judgment.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Uchechukwu Onyemenam, JCA gave me the opportunity of reading the judgment just delivered. I agree with the reasoning and conclusion of my learned brother in consequence of which I dismiss the appeal and affirm the judgment of the trial Court.

Appearances

A. O. Omotoso – AppellantFor Appellant

AND

A. V. Adeyemi State Counsel MOJ Kwara State – RespondentFor Respondent