KOKO INYANG UDOH v. THE STATE
(2019)LCN/12705(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/C/187C/2017
RATIO
CRIMINAL LAW: ELEMENT OF THE OFFENCE OF MURDER
“The prosecution is by law required to prove every criminal accusation beyond reasonable doubt. Proof beyond reasonable doubt has been settled by judicial decisions; the meaning was given in the case SMART VS. THE STATE (2016) LPELR-40827 (SC) thus: “In NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) P. 170 I explained proof beyond reasonable doubt thus: “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.” Per RHODES-VIVOUR, J.S.C. The prosecution is expected to prove the following elements of the offence of murder, namely: i. That the deceased is dead; ii. That the death of the deceased resulted from the act of the Appellant; iii. That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence. See ALI VS. THE STATE (2015) 10 NWLR (PT. 1466) 1 at 23-24.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
CRIMINAL LAW: WAYS TO PROVE A CRIME
“There are several ways the prosecution can prove the commission of a crime as held in the case of ABIRIFON VS. THE STATE (2013) LPELR-20807 (SC) thus: ”There are several methods laid down by the law in proof of such a crime in discharging the burden of proof beyond reasonable doubt. Several authorities of this Court repeatedly made the point clear. For instance in ADIO VS. THE STATE (1986) 5 SC 194 at 219-220, it was stated as follows: “How is a case proved beyond reasonable doubt A case can be proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt… the local case of JOSEPH OGUNBADEJO VS. THE QUEEN (1954) 14 WACA 458 (otherwise known as APALARA’s case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial Evidence but far above these two methods of proof is voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.” Per MUHAMMAD, J.S.C.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: FAILURE TO CALL EYE WITNESS
“Failure to call eye witnesses cannot in most cases be fatal when there are confessional statements in evidence which were admitted without any objection, the law acknowledges other forms of evidence such as circumstantial evidence and confession. Circumstantial evidence is described as the surrounding circumstances which by coincidence is capable of proving a proposition with accuracy of mathematics. It is settled that circumstantial evidence can pin the accused to the commission of a crime with mathematical exactitude, it should be unequivocal and positive, see GABRIEL VS. THE STATE (1989) NWLR (PT. 122) 457. Exhibit A and B before the trial Court are confessional statements which satisfied the requirement of the law.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
KOKO INYANG UDOH – Appellant(s)
AND
THE STATE – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Akwa Ibom High Court delivered on the 21st day of March, 2016 by Hon. Justice Stephen E. Okon, Chief Judge, wherein the Appellant was found guilty of the offence of murder and sentenced to death. Aggrieved by the decision, the Appellant filed a Notice of Appeal on the 23rd day of May, 2016 setting out three (3) grounds and additional grounds filed with leave of Court on 25th day of October, 2017 naming 3 additional grounds making a total of six (6) grounds.
The brief facts leading to the appeal are that the Appellant was arraigned before the Court below on a one count charge of murder contrary to Section 326(1) of the Criminal Code, Cap 38, Vol. 11 Laws of Akwa Ibom State of Nigeria alleging that the Appellant on the 25th day of April, 2011 at Ikot Ekang Village in Essien Udim Local Government Area, in Ikot Ekpene Judicial Division murdered one Akpan John Udoh. The facts are that an illustrious son of the area gave Easter gifts to the youths of the area and in the process of sharing a fight ensued and the Appellant used a broken bottle to stab the deceased on the head. The deceased could not get medical attention that night so he died the following day in the morning. The youth of the area moved the corpse to the Appellant father’s house before the police were called and they moved the corpse to the hospital. Thereafter, the police arrested the Appellant and he was arraigned. The prosecution called four (4) witnesses in proof of the charge while the Appellant testified in defence and did not call any witness. Both sides filed and exchanged written addresses which were adopted at the hearing after which the Court handed down its decision convicting the Appellant for the offence of murder and sentencing him to death thus this appeal.
The Appellant’s brief settled by G. A. Umoh Esq., is dated 11th day of October, 2017 and filed on the 25th day of October, 2017; it nominated three (3) issues as follows:
i. Whether it was proper for the learned trial Chief Judge to rely on the evidence of PW1, PW2 and PW3 to convict the Appellant of the offence of murder in the circumstance when there was no eye witness account of how the Appellant killed the deceased in the face of the free-for-all fight which ensued at the scene of the crime on the 25th April, 2011.
ii. Whether it was right for the learned Trial Chief Judge to give probative value to the alleged confessional statement thereby convicting the Appellant of the offence of murder on it without testing the truth and voluntariness of the alleged confessional statement?
iii. Whether on the preponderance of evidence, the Appellant (accused person) was not entitled to be discharged and acquitted?
The Respondent’s Brief settled by Helen S. Umoh, Esq., is dated 27th day of February 2018 filed on the 2nd day of March, 2018 but deemed on the 16th day of January, 2019, it settled 3 issues for determination as follows:
a. Whether it was not proper for the learned Trial judge to have relied on the evidence adduced by the prosecution witnesses to convict the Appellant of the offence of murder.
b. Whether it was not right for the learned Trial Judge to have ascribed probative value to the voluntary confessional statement of the Appellant that was rightly received in evidence without any objection to convict the Appellant of the offence of murder.
c. Whether the Appellant was entitled to be discharged and acquitted when the prosecution had proved its case beyond reasonable doubt.
Upon a careful consideration of the Notice of Appeal, the Additional grounds, Record of Appeal, the Briefs of both learned counsel and issues settled for determination, the issues presented by both parties are similar except for the language and style of formulation. For a complete and effectual determination of the complaint of the Appellant, the Court shall therefore, adopt the issues presented by the Appellant for determination in this appeal. All the issues are questions touching fundamentally on the alleged deficiency of evidence, validity of the confessional statements and whether the trial Court evaluated evidence, the Court shall determine all three issues seamlessly to avoid repetition.
The Appellant submitted that PW1 – the Village Chairman was not at the scene of crime so his evidence on how the crime was committed was hearsay. For PW3, the Appellant alleged, that there was a contradiction in the evidence and how the Appellant was arrested, whether on the complaint of PW2 or through the youth of the village as stated by PW3. PW2 said he lodged a complaint on the death of the deceased. Learned Senior Counsel contended that the allegation is a mere suspicion and relied on ONAH VS. THE STATE (1985) 3 NWLR (PT. 12) 236; CHIMA IJIOFFOR VS. THE STATE (2001) 4 SC (PT. 11) 1. The Appellant argued further that PW2 was a tainted witness and had his purpose to achieve and the Court should not have relied on his evidence, citing STATE VS. OHOLO (1994) 2 SC 73; ADETOLA VS. THE STATE (1992) 4 NWLR (PT. 235) 267. Furthermore, the Appellant argued that in the circumstances of a free for all fight, any other person could have struck the deceased, relying on THE STATE VS. KURA (1975) 2 SC 83 and MBENU VS. THE STATE (1988) 3 NWLR (PT. 84) 615 to contend that the conviction was in error because the identity of the Appellant was not established and the account of how the offence was committed was sketchy. He urged the Court to resolve the doubt in favour of the Appellant and relied on the following cases,OKONOFUA VS. THE STATE (1981) 6-7 SC 1; UDOFIA VS. THE STATE (1981) 11-12 SC 49 and UDOSEN VS. THE STATE (2007) 1-2 SC 27.
Arguing in respect of Issue Two, the Appellant challenged the admission of the confessional statements made on 27th day of April, 2011 and 28th day of April, 2011 (Exhibit A and B) because the Appellant denied making the statements and the Court below admitted the statements without a trial within trial, citing NWACHUKWU VS. THE STATE (2002) 12 NWLR (PT. 782) 543 and OJEGELE VS. THE STATE (1988) 1 NWLR (PT. 71) 414. Learned counsel highlighted the fact that Exhibit A was signed while Exhibit B bears a full name. That the Appellant denied making the statements contending that the record does not show that the Appellant gave evidence in vernacular or through an interpreter or could not write or sign his full name. On the basis of two statements taken by two different Police officers, the Appellant submitted that the statements were fabricated and relied on ONAFOWOKAN VS. THE STATE (1987) 3 NWLR (PT. 61) 538 and GBADAMOSI VS. THE STATE (1992) 9 NWLR (PT. 266) 465.
The Appellant contended that the trial judge relied on the confessional statements which lack the essential ingredients of the offence which the prosecution must prove and that the statements did not undergo the required test as settled by law, relied on OLAYINKA VS. THE STATE (2007) 4 SC (PT. 1) 210. Continuing in the same line of argument, the Appellant submitted that the statements were not unequivocal, precise nor clear, therefore inadmissible; and that there was no evidence corroborating same, citing the following: ARCHIBONG VS. THE STATE (2004) 1 NWLR (PT. 855) 494; NDIDI VS. THE STATE (2007) 12 NWLR (PT. 1052) 633; QUEEN VS. CHUKWU OBIASE (1992) 1 ALL NLR 65; DAVID OBUE VS. THE STATE (1976) 2 SC 141.
The Appellant submitted that the evidence of PW4 cannot be corroboration because it was a travesty of justice and evidence of PW2 cannot help the case of the prosecution, citing NWANGBOMU VS. THE STATE (1994) LRCN 178 180. Appellant argued that he was singled out because his father is the Village Head and the largesse was given through him for distribution before the fight ensued. The Appellant submitted that the prosecution failed to prove the offence beyond reasonable doubt and relied on IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455.
On Issue Three, the Appellant in addition to previous arguments, submitted that the decision in ALI VS. THE STATE (2015) LPELR-24711 (SC) on burden of proof in criminal case is relevant. He finally submitted that in the absence of eye witness account of how the Appellant struck the deceased, the prosecution failed to prove its case and the Court should allow the appeal, discharge and acquit the Appellant.
The Respondent in arguing its issues listed the element of the offence required to be proved by the prosecution which must co-exist and that it can be proved by a confessional statement alone, evidence of eye witness or by circumstantial evidence and relied on ANTHONY ITU VS. THE STATE (2016) LPELR-26063 (SC). Learned Senior Counsel submitted that there was no contradiction as contended by the Appellant because what the Appellant alleged as contradiction does not affect any fundamental aspect of the charge or main issues in question as decided in the case of SELE VS. THE STATE (1993) 1 SCNJ 15 and IGABELE VS. THE STATE (2006) 5 MJSC 96. On the absence of eye witness account, the Respondent argued that it is not the requirement of law that there must be eye witness account before a murder can be held to have been proved, relied on UBANI & ORS. VS. THE STATE (2003) 16 NSCQR 276.
On the allegation that the charge was based on suspicion because Appellant is the son to the Village Head, the Respondent in response submitted that the evidence against the Appellant was unequivocal and left no room for doubt because facts admitted needs no proof, citing OKOEBOR VS. POLICE (2003) 12 NWLR (PT. 834) 444 and OBASI VS. THE STATE (1965) NMLR 119. That the case of ONAH VS. THE STATE (supra) is distinguishable and therefore not applicable here.
Respondent submitted that in Onah’s case there was no nexus whatsoever between the accused and the crime, unlike here, where evidence linking the Appellant to the commission of the offence abound. Furthermore, that the confessional statements are direct and unequivocal in admitting commission of the crime.
The Respondent argued that the suggestion that PW2 is a tainted witness is laughable because the offence was reported to the Police by the youth of the village and PW2 was also mandated by the family to report the death of the deceased. Respondent argued that reporting a crime cannot make PW2 a tainted witness, referred to the holding in NKEBISI VS. THE STATE (2010) 5 NWLR (PT. 1188) 471; OMOTOLA VS. THE STATE (2009) 7 NWLR (PT. 1139) 148; KIWO VS. THE STATE (2015) 3 NWLR (PT. 1446) 207 and ALI VS. THE STATE (supra). Furthermore, that PW2 was not shown to be an accomplice moreso, being a relation of a deceased cannot make him a tainted witness as decided in the case of OLAIYE VS. THE STATE (2010) 3 NWLR (PT. 1181) 423 and ALI VS. THE STATE (supra).
Reacting to the submission that in a free for all fight the deceased could have been stabbed by any other person, the Respondent submitted that it is an academic proposition which has no value to the issue at stake, relied on A. G. OF THE FEDERATION VS. ANPP (2003) 18 NWLR (PT. 851) 182. The Respondent further submitted that no miscarriage of justice was identified by the Appellant and reliance on the evidence before the trial Court cannot be faulted. Furthermore, the Respondent objected to the introduction of the issue of identity of the Appellant at this stage when it was not raised and argued before the trial Court making it a new issue being raised and without leave of Court. Respondent urged the Court to discountenance it, citing the case of AKINTARO VS. E. E GUNGBOHUN (2007) 9 NWLR (PT. 1038) 103.
On sufficiency of evidence, the Respondent submitted that there is evidence to justify the conviction and referred the Court to the evidence of PW1, PW2, PW3, PW4 and the confessional statements which satisfies the requirement of Section 323(1) (a-c) of the Criminal Code of Akwa Ibom State and that the evidence was dutifully evaluated by the trial Court.
On the challenge to the confessional statements, the Respondent argued that the allegation that the admissibility of the confessional statements was contested but the trial judge went ahead to admit without a trial within trial is false as the record does not bear it out and the proper time to object to the admissibility of a confessional statement is at the point of tendering the statement, relied on OGUNTOLA VS. THE STATE (2007) NWLR (PT. 1049) 617 and KOLAWOLE VS. THE STATE (2015) LPELR-24400 (SC). Submitting further, the Respondent argued that the statements once admitted become part of the evidence to be considered by the Court, citing ANTHONY NWACHUKWU VS. THE STATE (2007) LPELR-8075 SC and that retraction does not affect a confessional statement, therefore, the Court can convict on a confessional statement alone, relied on NKIE VS. FRN (2014) 13 NWLR (PT. 1424) 325. That in this case there was no objection to the admissibility so a ruling was unnecessary and referred to FRN VS. IWEKA (2013) 3 NWLR (PT. 1341) 288 and HARUNA VS. A. G. FEDERATION (2012) VOL. 209 LRCN 70; OGUDO VS. THE STATE (2011) VOL. 202 LRCN 1 and OLATUBOSUN VS. THE STATE (2011) ALL FWLR (PT. 555) on how to test a confessional statement. The Respondent referred the Court to the holding of TOBI, JSC (of blessed memory) in the case ofSOLOLA VS. THE STATE (2005) 22 NSCQR 254.
Continuing its submission the Respondent on the alleged irregular signature on the confessional statements observed that the Appellant is raising the issues afresh since the confessional statements were not contested on any ground, nor on the language used, they were admitted without any objection, relied on AKPENE VS. BARCLAY BANK OF NIGERIA (1977) 1 SC 47.
On the burden of proof, the Respondent submitted that there are two burdens in a criminal trial, the burden of proof and the evidential burden, that the Appellant had no evidential burden since he did not introduce any evidence to create any doubt in the case of the prosecution. Respondent relied on ESANGBEDO VS. THE STATE (1989) NWLR (PT. 113) 57 and EZEUKO VS. THE STATE (2016) LPELR-40046 (SC). Arguing further, the Respondent submitted that a case of murder can be proved by other means other than eye witness account and that circumstantial evidence is good evidence, referred toIJIOFFOR VS. THE STATE (2006) 6 NSCQR (PT. 1) 209 and USMAN VS. THE STATE (2013) 12 NWLR 76 to urge the Court to affirm the judgment of the trial Court which was arrived at according to law.
RESOLUTION
The prosecution is by law required to prove every criminal accusation beyond reasonable doubt. Proof beyond reasonable doubt has been settled by judicial decisions; the meaning was given in the case SMART VS. THE STATE (2016) LPELR-40827 (SC) thus:
“In NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) P. 170 I explained proof beyond reasonable doubt thus: “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.” Per RHODES-VIVOUR, J.S.C.
The prosecution is expected to prove the following elements of the offence of murder, namely:
i. That the deceased is dead;
ii. That the death of the deceased resulted from the act of the Appellant;
iii. That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.
See ALI VS. THE STATE (2015) 10 NWLR (PT. 1466) 1 at 23-24.
There are several ways the prosecution can prove the commission of a crime as held in the case of ABIRIFON VS. THE STATE (2013) LPELR-20807 (SC) thus:
”There are several methods laid down by the law in proof of such a crime in discharging the burden of proof beyond reasonable doubt. Several authorities of this Court repeatedly made the point clear. For instance in ADIO VS. THE STATE (1986) 5 SC 194 at 219-220, it was stated as follows: “How is a case proved beyond reasonable doubt A case can be proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt… the local case of JOSEPH OGUNBADEJO VS. THE QUEEN (1954) 14 WACA 458 (otherwise known as APALARA’s case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial Evidence but far above these two methods of proof is voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.” Per MUHAMMAD, J.S.C.
The four (4) prosecution witnesses called were not eye witnesses to the commission of the crime but gave evidence of circumstantial facts that linked the Appellant to the commission of the offence. The record of appeal particularly the judgment of the Court reveals that the Court relied on the two (2) confessional statements as reviewed and evaluated by the trial judge. The confessional statements were admitted without any objection. The implication of that is also obvious, the apex Court in the cases of AJIBADE VS. THE STATE (2012) LPELR-15531 (SC) and ISA VS. THE STATE (2016) LPELR-40011 (SC) held thus:
“If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See BELLO SHURUMO VS. THE STATE (2010) 19 NWLR (PT. 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.” Per OGUNBIYI, J.S.C.
There was no indication in the record of appeal of any objection at the point of tendering the confessional statements, therefore, the Appellant cannot revisit the issue of voluntariness of the confessional statements at this stage, neither can the Appellant complain about failure of the trial Court to rule on the confessional statements before their admission into evidence. Trial within trial is only necessary when a confessional statement is contested on the ground that it was not voluntarily made. That was not the case of the Appellant at the trial Court. The best time to object to a confessional statement is at the point of tendering, see OGUDO VS. THE STATE(2011) LPELR-860 (SC). The Appellant also did not challenge his signature or name on the confessional statements. There was no challenge to the confessional statements and it is late in the day to do that here. The Appellant therefore cannot question the confessional statements at this stage.
Failure to call eye witnesses cannot in most cases be fatal when there are confessional statements in evidence which were admitted without any objection, the law acknowledges other forms of evidence such as circumstantial evidence and confession. Circumstantial evidence is described as the surrounding circumstances which by coincidence is capable of proving a proposition with accuracy of mathematics. It is settled that circumstantial evidence can pin the accused to the commission of a crime with mathematical exactitude, it should be unequivocal and positive, see GABRIEL VS. THE STATE (1989) NWLR (PT. 122) 457. Exhibit A and B before the trial Court are confessional statements which satisfied the requirement of the law.
Effect of a confessional statement admitted without objection is settled and it is that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case, which the Judge is bound to consider for its probative value. It is clear therefore that Exhibits A and B must be and was considered by the trial judge in arriving at a decision.
The Appellant contended that PW2, a relation of the deceased told the Court he was mandated by the family to report the death of the deceased to the police and that makes him a tainted witness. A tainted witness is one that the law classifies as one who has some purpose of his own to serve, see NWANKWOALA VS. FRN (2018) LPELR-43891. The mere fact that PW2 is related to the deceased without more cannot disqualify him from being a competent witness, see the case of NKEBISI VS. THE STATE (supra). Furthermore, the Appellant did not show that by his testimony PW2 had some purpose of his own to serve. PW2 is indeed a witness of truth and not a tainted witness.
‘The Appellant further argued that there was a contradiction in the evidence of PW2 and PW3 with regards to how the Appellant was arrested and who identified him to the Police. What amounts to contradiction in evidence’ Rhodes-Vivour, JSC in the case EZE VS. THE STATE (2018) LPELR 43715 (SC) said thus:
A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some minor differences in details. See GABRIEL VS. THE STATE (1989) 5 NWLR (PT. 122) P. 460, IDIOK VS. THE STATE (2006) ALL FWLR (PT. 333) P. 1788.”
It is not every contradiction in the evidence of prosecution witnesses that is relevant and that is where a contradiction exists. The contradiction that would upturn the decision of a Court has to be material contradictions and a material contradiction must go to a material point in the prosecution’s case, so as to create doubt in the case, that way the Appellant is entitled to benefit therefrom. See also the case of AHMED VS. THE STATE (2002) FWLR (PT. 90) 1358 at 1385; (2002) 18 NWLR (PT. 746) 622. What would be material here would have to touch on any of the elements of the offence which the prosecution must prove and the alleged contradiction pointed out by the Appellant has nothing to do with material aspects of the alleged crime nor evidence presented in proof of the elements of the offence. How and where the Appellant was arrested is not relevant to whether the Appellant committed the offence. There is no inconsistency in the evidence of PW2 and PW3, in any case, PW3 stated how the Appellant was pointed to them by the youths of the village and he was arrested. PW 2 told the Court he was directed to report to the Police the death of the deceased and thereafter the Appellant was arrested. Whether it was PW2 or PW3 that caused the arrest of the Appellant is not a material issue that can affect the judgment. There is no inconsistency and contradiction in the evidence of PW2 and PW3.
The Appellant submitted that the allegation against him was based on suspicion because it was a free for all fight. Suspicion is simply a state of congesture or surmise, where proof is lacking. It is another way of saying, I suspect but I cannot prove. See OTERI & ORS. VS. OKORODUDU & ANOR. (1970) ALL NLR 199. However, in this appeal there is evidence before the Court that one Akpan John Udoh died as a result of heavy bleeding from a cut on his head which PW4 described as deep wound of 8cm across the left temporal region of the scalp with destruction of the temporal blood vessel. There is evidence even from the Appellant himself in Exhibit A and B (confessional statements) that when he saw that his brother was bleeding as a result of an injury, he also went and broke a bottle and cut somebody who was later known as the deceased.
The circumstances that generated the fight between the youth was admitted by PW1, 2, 3 and the Appellant. There is evidence of a death from a wound arising from a cut which took place on the day in question and at the venue of the sharing of a largesse given to the youth. There is no issue of suspicion, as it did not arise, it was not part of the case before the trial Court. The case of ONAH VS. THE STATE (supra) relied upon by the Appellant is not applicable here because in that case evidence linking the Appellant to the offence was lacking unlike here where circumstantial evidence abounds and further reinforced by the confessional statements. Circumstantial evidence is good evidence, it was defined as the evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. Circumstantial evidence means that there are a number of circumstances which make a complete unbroken chain of evidence, if that is established to the satisfaction of the Court, it may well and properly act upon such evidence, see ADESINA & ORS. VS. THE STATE (2012) LPELR-9722 (SC).
Furthermore, the confessional statements were reinforced by the circumstantial evidence presented by the prosecution witnesses. The fact of a fight amongst the youth notwithstanding, the Appellant by his statement reinforced and confirmed his stabbing the deceased with a broken bottle. The identity of the Appellant and the deceased were never in issue and it cannot now arise at this stage. The Appellant admitted being at the scene of crime and singlehandedly attacked the deceased when he saw his brother bleeding. The Appellant did not deny being at the scene of crime so how can the issue of his identity be in issue when by his own self admitted attacking a human being with a broken bottle? The possibility of someone else stabbing the deceased is very remote because the Appellant admitted the act. The prosecution was therefore discharged from the burden of adducing evidence on who actually stabbed the deceased.
Now to the effect of a confessional statement. The Appellant made two separate confessional statements on different dates which were admitted without any objection as observed earlier. It is settled that a confessional statement is one that must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and unequivocal. It is the best form of evidence in criminal trial. See the following authorities, AKPAN VS. THE STATE (2001) 15 NWLR (PT. 737) 745; EDET OFFIONG EKPE VS. THE STATE (1994) 9 NWLR (PT. 368) 273; EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734) 666 and OBIDIOZO VS. THE STATE (1987) 4 NWLR (PT. 67) 48. There is no doubt that Exhibit A and B qualify as confessional statements. It is trite that a Court can convict solely on the confessional statement of an accused person, see SIMON VS. THE STATE (2017) LPELR-41988 (SC) which held thus:
“It has long been settled that confessional statement of the Appellant alone, where cogent and unequivocally, may sustain his conviction on appeal notwithstanding the inconsistency of the statement with his subsequent oral statement at trial. The Court is at liberty to discountenance the subsequent oral statement for being an afterthought. See THE STATE VS. OKORO (1974) 2 SC 73 and EGBOGHONOME VS. THE STATE (1993) 7 NWLR (PT. 306) 383.
The Appellant retracted his confessional statements in his oral testimony. However, it is settled that a conviction can be properly founded on a retracted confessional statement when some evidence outside of the confession is available to make it probable. He denied making the statement and this is different from saying it was not voluntarily made. In a case where the Appellant flatly denies making of a statement, the trial Court cannot conduct a trial within trial because the statement is allegedly not that of the accused. The two are mutually exclusive. The apex Court in the case of OJO VS. THE STATE (2018) LPELR-44699 (SC) on the position of a retracted confessional statement held thus:
“It is not the law that by resiling from his extra judicial confessional statement the Appellant is automatically entitled to an acquittal. It is long settled that he can be convicted solely on his free confessional statement that is direct, positive and unequivocal. See NWACHUKWU VS. THE STATE (2002) LPELR-2084 (SC) and RABI LSMA’IL VS. THE STATE (2011) LPELR-9352 (SC). Over the years, however, the practice has evolved where, beyond the confessional statement of the accused, Courts ensure that other available evidence further establish the fact that the accused person indeed perpetrated the criminal act. See R. VS. SYKES (1913) C.A.R. 233, AKPAN VS. THE STATE (1992) LPELR-381 (SC) and FEDERAL REPUBLIC OF NIGERIA VS. FAITH IWEKA (2011) LPELR-9350 (SC).”
To confirm a confessional statement, the apex Court developed a set of questions used to test and verify a confessional statement before relying on it to convict the accused, see AKINRINLOLA VS. THE STATE (2016) LPELR-40641 (SC) which held:
”This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of EMMANUEL NWAEBONYI VS. THE STATE (1994) 5 NWLR (PT. 138) 150, the Supreme Court stated:- That to test the veracity of a confessional statement, the following should be evident:- 1. Is there anything outside the confession which shows that it may be true 2. Is it corroborated in anyway 3. Are the relevant statements of facts made in it most likely true as far as they can be tested 4. Did the accused have the opportunity of committing the offence 5. Is the confession possible 6. Is the alleged confession consistent with other facts which have been ascertained and established along the same line of thought, this Court stated in ALARAPE VS. THE STATE (2001) 5 NWLR (PT. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
Applying the listed conditions to the appeal will clearly confirm that the confession is possible and true. There are facts outside the confessional statements which verify and confirm the confessional statements.
There was the corpse of the deceased with a cut on the head which confirms the facts in the statements, the nature of the wound, the day of the incident and the time all correspond. The Appellant mentioned in the confessional statement the same circumstances that necessitated the meeting of the youth which is to share a gift from an illustrious son of the area. That evidence was also given by the prosecution witnesses. The evidence of prosecution witnesses corroborates the commission of the crime by circumstantial evidence. Did the Appellant have the opportunity of committing the offence? The Appellant was at the scene, he went for his own share of money, he narrated the events at the scene and his narration is corroborated by the prosecution witnesses. The confession is possible and consistent with facts outside the confession thereby verifying the facts in the confessional statements. There is also the repetition of the facts as the confessional statements were made to two different Police officers at different times. Each of the confessional statements can verify the other to make the confessional statement verified and reliable for reliance in arriving at a conviction.
The Appellant submitted that the trial Court did not evaluate evidence before the Court. It is settled that when a party complains that evidence was not evaluated, the burden rests on him to identify the particular piece of evidence not evaluated. The Appellant in this appeal did not identify the piece of evidence that was not evaluated and that failure defeats the complaint, see AKANMODE VS. DINO (2008) LPELR-8405 which held thus:
“The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. see: THE STATE VS. BAKO YUSUF & ANOR. [20071 Al,’ FWLR (PT. 377) 1001 at 1010-1011.”
And OKAFOR VS. EFFIONG (2017) LPELR-42699 (CA) wherein I said:
“…An Appellant who therefore relies on wrongful evaluation of evidence to set aside a judgment, has the duty to identify the evidence improperly or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in his favour, see NKEBISI VS. THE STATE (2010) 5 NCC 84 AT 104; SIRAJO VS. THE STATE (2014) LPELR-23608 (CA)”.
Flowing from above, the trial judge was on good authority in relying on the two confessional statements and the circumstantial evidence from the evidence of prosecution to find the Appellant guilty of the offence of murder and the conviction therefore is justified in law. The appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on the day Of March, 2016 is hereby affirmed.
No order as to Cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusion in the said judgment. I also dismiss the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading the lead judgment of my learned brother Yargata B. Nimpar, JCA. A mere retraction of a voluntary confessional statement by an accused person as in this case does not render such statement inadmissible or worthless or untrue in considering his guilt. See IDOWU V STATE (2000) 12 NWLR (pt 680) 48 and KAMILA V STATE (2018) 8 NWLR (pt 1621) 252.
I entirely agree that the appellant did not show any reason why this Court should interfere with findings of the trial Court. I therefore affirm the judgment of the lower Court in the line of reasoning advanced by my learning brother in the lead judgment.
Appearances:
G. A. Umoh with him, O. B. Akpan, Linus Utuk, Esq., Anietie Bassey, Esq., Iniobong Inyanime, Edima Akpan and Edikan UmohFor Appellant(s)
Helen S. Umoh, Esq. (Asst. Director, Ministry of Justice) with her, Uwem Aniefiok, Esq. (PSC, Akwa Ibom State)For Respondent(s)
