MATTHEW v. STATE (2021)

MATTHEW v. STATE

(2021)LCN/14994(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/C/424C/2018

RATIO

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF A PERSON

It is firmly settled that in establishing its case the prosecution may rely on eye witness evidence, circumstantial evidence or the confessional statement of the accused. It can rely on any one of these methods or a combination thereof. See ABIRIFON V. STATE (2013) 13 NWLR (prt 1372) 619, OGUNDIPE V. QUEEN (1954)14 WACA 458 and UMAR V. STATE (2014) 13 NWLR (prt 1425) 497. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE: WHETHER EVIDENCE OF A SINGLE WITNESS CAN SECURE A CONVICTION

It is equally trite that the evidence of a single witness if direct, cogent and credible is sufficient to secure a conviction. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

CRIMINAL LAW: REQUIREMENTS TO SECURE A CONVICTION FOR THE OFFENCE OF MURDER

Learned counsel for the respondent has rightly stated the law that in order to secure a conviction for the offence of murder, the prosecution must prove beyond reasonable doubt:
(a) That the deceased died,
(b) That death was caused by the accused, and
(c) The act of the accused which caused the death was intentional having the knowledge that the death or grievous bodily harm was the probable consequence of the act. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

CRIMINAL LAW: WHETHER THE INTENTION TO KILL OR TO CAUSE GRIEVOUS BODILY HARM, WHICH RESULTED IN DEATH, IS SUFFICIENT TO ESTABLISH THE OFFENCE OF MURDER

The intention to kill or to cause grievous bodily harm, which resulted in death, is sufficient to establish the offence of murder. See GWOJILIRE V. STATE (1965) NNLR 52, BAKARE V. STATE (1987)1 NWLR (prt 52) 579 and RICHARD V. STATE (2018) 18 NWLR (prt 1651) 224. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EMMANUEL ELIJAH MATTHEW APPELANT(S)

And

THE STATE RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting in Uyo Coram Hon. Justice Ifiok E. Ukana delivered on 13th January, 2017 wherein the appellant was convicted for murder and sentenced to death by hanging.

The appellant was arraigned before the lower Court on one count charge of murder under Section 326 (1) of the Criminal Code Cap. 38 Vol.2 Laws of Akwa Ibom State of Nigeria. It was alleged that the appellant stabbed the deceased with knife on his chest and thereby causing the death of the said deceased person, Otobong Mfon Asuquo.

The accused person pleaded not guilty to charge and the case went into full blown trial in which the prosecution called two witnesses and tendered several documentary exhibits including appellant’s confessional statements, photographs of the deceased as well as the composite documents relating to the autopsy conducted on the deceased.

The accused person testified in person but called no other witness. At the conclusion of the trial, the accused person (now appellant) was found guilty and convicted for murder. He was

accordingly sentenced to death by hanging.

The appellant was dissatisfied with the above decision and appealed to this Court through a notice of appeal filed on 14/5/2018. The said notice of appeal contains five grounds of appeal at pages 140 – 142 of the record of appeal.

At the hearing of this appeal on 18/01/2021, Chief Victor Iyanam adopted and relied on the appellant’s brief of argument filed on 5/6/2020 but deemed as properly filed on 18/1/2021 in urging this Court to allow the appeal. Friday J. Itim, Esq. Deputy Director of Public Prosecution, Akwa Ibom State adopted and relied on the respondent’s brief of argument filed on 28/7/2020 but consequentially deemed as properly filed on 18/1/2021 in urging this Court to dismiss the appeal.

Learned Counsel for the appellant nominated two issues for the determination of this appeal as follows:-
1. Whether the learned trial judge was not in error in assuming the purported statement of the accused/appellant to the police was a confessional statement and whether the assumption as aforesaid did not occasion a miscarriage of justice.
2. Whether there was any material upon

which the accused person could be convicted.

On behalf of the respondent, learned counsel nominated a lone issue thus:-
Whether the prosecution had proved the charge of murder against the appellant to justify his conviction.

The two sets of issues formulated by the respective Counsel are intertwined but the lone issue nominated by the respondent is preferred by me for being more concise and apposite to the just determination of the appeal. I shall determine this appeal in the light of the said lone issue by the respondent.

Arguing the appeal on behalf of the appellant, learned Counsel contended that the appellant’s extra – judicial statement, Exhibit C was involuntarily obtained and despite protestation of counsel, same was relied upon in convicting him without conducting trial within trial to determines its voluntariness. Counsel submitted that where an accused admits making a confessional statement but contends that he did not make it voluntarily, trial within trial must be conducted in order to determine whether the statement was voluntary or not. He referred to IGRI V. THE STATE (2009) LPELR – 4324 (CA),

EFFIONG V. STATE (1998) 8 NWLR (prt 562) 362, F.R.N. V. IWEKA (2013)3 NWLR (prt 1341) 285 at 292 and 293 and hosts of other cases.

Counsel submitted further that there was no legally admissible evidence justifying the conviction of the appellant describing the evidence of pw1 as a hearsay evidence. He contended that the failure of the prosecution to bring as a witness Inspector John Egbunu who subsequently investigated the case as well as failure to tender the recovered weapons amounted to withholding evidence relying on Section 167 (d) of the Evidence Act and the cases of EKEKU V. QUEEN (1959) NWLR 77 and OPEYEMI V. STATE (1985)2 NWLR 101 at 102.

On his part, learned Counsel for the respondent after reviewing the testimonies of pw1 and pw2, Exhibits B and B1, the photographs as well as the post-mortem examination Exhibits D series submitted that the death of the deceased, Otobong Mfon Asuquo was established by the prosecution. And that the injury sustained by the deceased resulted in his death. The appellant according to the learned Counsel knew or ought to know that by stabbing the deceased on the chest, it would cause the deceased grievous bodily harm or death.

He referred to the cases of UKPONG V. STATE (2019) LPELR – 46427 (SC) and POPOOLA V. STATE (2018) LPELR – 43853 (SC).

Counsel further submitted that it is only when an extrajudicial statement is alleged to have been obtained involuntarily that an accused or his counsel could rise an objection to its admissibility and the Court will then be bound to conduct trial within trial. That by the tenor of evidence surrounding the accused statement, Exhibit C, it was not necessary to embark on trial within trial. Counsel cited OFORDIKE V. STATE (2019) 46411 (SC) to contend that denial of making a confessional statement is not synonymous with allegation that it was involuntarily made.

It was also submitted by the respondent that failure to tender weapon allegedly used in committing the offence is neither fatal to the prosecution case nor amount to withholding of evidence, particularly when the appellant has not shown that failure to tender the weapon by the prosecution was prejudicial to him. He referred to the cases of SALEH V. STATE (2018) LPELR – 46337 (SC) and CHUKWUNYERE V. STATE (2017) LPELR – 43725(SC).

The appellant as stated earlier in this judgment was arraigned before the lower Court for the offence of murder under Section 326 (1) of the Criminal Code Cap.38, Vol.2 Laws of Akwa Ibom State of Nigeria. The prosecution in the present case must therefore prove beyond reasonable doubt that Otobong Mfon Asuquo died and that his death was caused by the appellant. The prosecution must further show that the act of the appellant which resulted in the death of the deceased, Otobong Mfon Asuquo is one of the six circumstances listed in Section 323(1) of the said Criminal Code Law. That is to say:-
(a) If the offender intends to cause the death of the person killed or that some other person,
(b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such nature to be likely to endanger human life;
(d) If the offender intends to do grievous harm to some person for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) If death is caused by administering any

stupefying or overpowering things for either of the purposes last aforesaid;
(f) If death is caused by willfully stopping the breath of anyperson for either of such purposes.
See AKPAN V. STATE (2001) 15 NWLR (pt 737) 747, IGRI V. STATE also reported in (2012) 16 NWLR (prt 1327) 522 and EZE V. STATE (2018) 11 NWLR (prt 1630) 353.

It is equally trite that the evidence of a single witness if direct, cogent and credible is sufficient to secure a conviction.

intentional having the knowledge that the death or grievous bodily harm was the probable consequence of the act.

As far as the ingredients of the offence are concerned, the death of the deceased was not in doubt. Pw1 a cousin of the deceased was an eye witness to the crime. He testified that on the day of the incident, he and the deceased were at No.103 Aka Itiam Street, Uyo, which is the house of their uncle as well as the place where the appellant is a tenant. When Pw1 arrived, the deceased complained to him that the appellant gave him a machete cut on his left leg without any reason. As himself and the deceased were discussing, the appellant brought a shovel, chased the two of them out wherein they ran to their uncle’s apartment and reported the appellant’s conduct. The latter came out and cautioned the appellant but the appellant blocked the door to the room where the deceased normally sleeps and when he left for a while, PW1 told the deceased to go and sleep. At pages 57-58 of the record of appeal PW1 said:-
“Unknown to us the accused emerged again and stabbed my brother on the chest. I removed my shirt and tied it around the

wounded area. The accused pursued other out of the compound. I later got a Keke to convey my brother to the hospital at Anua St. Luke’s Anua and by the time we got to the Hospital of Anua and my brother was brought out of the Keke he had died. By my brother I mean Otobong Mfon Asuquo, the deceased.”

When cross examined at page 61 of the record of appeal, PW1 said:-
“The deceased did not go to the room of the accused person. We were in the room we used to sleep.”

The evidence of PW1 unequivocally proved the death of the deceased as corroborated by PW2, the police investigating officer. The evidence of PW1 also proved that the death of the deceased was as a result of the injury he sustained from the stabbing on his chest as confirmed by the autopsy report Exhibit B3, which report certified the cause of death as severe trauma to the thoracic organ (lungs).

The third ingredient was also satisfied as it is evident that stabbing the deceased on the chest with a lethal object (knife), the appellant knew or must have known that death or grievous bodily harm would be the likely result. The intention to kill or to cause

grievous bodily harm, which resulted in death, is sufficient to establish the offence of murder. See GWOJILIRE V. STATE (1965) NNLR 52, BAKARE V. STATE (1987)1 NWLR (prt 52) 579 and RICHARD V. STATE (2018) 18 NWLR (prt 1651) 224.

It is also significant to note that apart from the eye witness account given by PW1, the prosecution relied on the appellant’s confessional statement Exhibit C which the trial Judge also relied in convicting the appellant. However, learned Counsel for the appellant faulted the decision of the trial Court on the ground that despite his protest at the point of tendering it, he went ahead and admitted it without conducting trial within trial.

Trial within trial presupposes the existence of a substantive trial, subsuming another mini-trial, as it were. It is thus a mini trial to determine an interlocutory point of admissibility of a piece of evidence, usually the confessional statement of an accused person allegedly made involuntarily. As rightly posited that where an accused admits making the statement but contends that he did not make it voluntarily or same was as a result of duress or undue influence, the trial Court is

mandatorily required to conduct trial within trial in order to determine whether the statement was voluntary or not. See EFFIONG V. STATE (1998) 8 NWLR (prt 562) 362.
In the instant case, the appellant through his Counsel did not object to the admissibility of Exhibit C on ground of involuntariness but that the witness through whom the statement was sought to be tendered was not aware of it. At page 65 of the record of appeal, the defence Counsel, Felix Udom Esq. said:-
“We urge the Court to refuse admission. There is nothing to show that this witness was aware of this document.”
It is my considered view based on the above circumstance that the learned trial Judge was not obliged to conduct trial within trial and he rightly admitted Exhibit C.

Again, by virtue of Section 72 (2) of the Evidence Act, 2011 a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents

purporting to be written by that person have been habitually submitted to him. Thus, the learned trial judge was also right to have admitted Exhibit C through PW2 who is familiar and acquainted with the handwriting of his colleague, Insp. Egbunu who was the 2nd investigating police officer after him. In SANMI V. STATE (2019) 13 NWLR (prt 1690) 551 at 582, the Supreme Court was emphatic that the Nigerian Police is an institution where any of its officers can take over investigation of a case from another officer and indeed produce document that were executed by the previous officers and tender them in Court for the purpose of proving the prosecution’s case. The fact that Insp. Egbunu who recorded Exhibit C was not called as a witness was not fatal to the prosecution’s case.

The appellant through the learned Counsel has urged this Court to jettison the evidence of PW1, alleging that it is hearsay. By virtue of Section 37 of the Evidence Act, a statement, oral or written made by a person not called to testify is a hearsay and inadmissible in Evidence. There are however an exception to the general rule, one of such exception is provided in Section 39 of the Evidence Act.

which makes admissible a statement, oral or written of facts in issue or relevant facts where the maker is:-
(a) Dead;
(b) Cannot be found,
(c) Has become incapable of giving evidence, or
(d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court to be unreasonable, if it falls within Sections 40 – 50 of the Act.
I have elsewhere in this judgment reproduced excerpt of PW1’S testimony before the lower Court. Hearsay evidence is testimony that is given by a witness who relates not what he knows personally, but what others have said. In the present case, Pw1 gave an uncontroverted eye witness account that the appellant stabbed the deceased on the chest with a knife. He testified to what he personally know and not what others said and therefore his evidence is far from been hearsay. In this case, the evidence of the prosecution witnesses established what the witnesses personally saw and heard from which the trial Court tied up the circumstances and irresistibly reached a conclusion that the appellant killed the

deceased.

Learned Counsel for the appellant also made an allusion as regards the failure of the prosecution to tender the recovered weapon of the crime. There is no law requiring the tendering of the weapons of an alleged murder to establish guilt of an accused person. Where as in the instant case, there is cogent and reliable evidence that the appellant stabbed the deceased on the chest with knife, there is no duty on the trial Court to insist on its production as the tendering of weapon of crime is not sine qua non in proving guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case. See STATE V. FADEZI (2018) 18 NWLR (prt 1650), I therefore resolved the lone issue against the appellant and in favour of the respondent.
On the whole, I find no merit in this appeal and it is accordingly dismissed.
Appeal dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion reached in the judgment. I also dismiss the appeal.

In the instant case, the prosecution relied on the eye

witness account of PW1 and the Appellant’s confessional statement to prove the offence of Murder against the Appellant.
The judgment and conviction of the Appellant cannot be faulted. The appeal lacks merit and it is accordingly dismissed.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother M. L. Shuaibu, JCA. I agree that the appeal be dismissed for lacking in merit. From the evidence of the PW1 and the extra-judicial statement of the Appellant, the guilt of the Appellant was established beyond reasonable doubt.
For the more detailed reasons contained in the judgment, I too dismiss the appeal.

Appearances:

Chief Victor Iyanam For Appellant(s)

Friday J. Itim, Esq. DDPP, Akwa Ibom State For Respondent(s)