MICHEAL v. STATE (2020)

MICHEAL v. STATE

(2020)LCN/14716(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/424C/2014

RATIO

CONFESSIONAL STATEMENT: EFFECT OF A CHALLENGE OF VOLUNTARINESS OF A CONFESSIONAL STATEMENT IF IT WAS OBTAINED BY OPPRESSION

The first is the possibility of a challenge of voluntariness of a confessional statement (notwithstanding that it may be true) if it was obtained by “oppression” which includes torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture (S. 29, Evidence Act 2011).
In this situation, the Court will normally order a trial within trial as “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 was not obtained in any manner contrary to the provisions of Section 29 of the Evidence Act 2011.” PER OWOADE, J.C.A.
CONFESSIONAL STATEMENT: WHETHER THE DENIAL OF MAKING A CONFESSIONAL STATEMENT MAKES IT ADMISSIBLE

The second situation, as in the instant case is a denial of the statement “it is not my statement” now commonly referred to as a retraction of such statement. In that case, the position of the law is that the fact that an accused has denied making a confessional statement does not necessarily make it inadmissible. See NWAEBONYI v. THE STATE (1994) 5 SCNJ 86; EDET EKPE v. THE STATE (1994) 12 SCNJ 131; R. v. EBONG (1947) 12 WACA 1. PER OWOADE, J.C.A.
LEGISLATION: NATURE OF THE EVIDENCE ACT

The Evidence Act is a legislation made under the exclusive list of legislative powers under the Constitution and a State legislature does not therefore have any power to legislate on matters concerning and/or relating to Evidence and consequently admissibility of evidence. Either by a doctrine of hierarchy of legislation or a doctrine of covering the field the Evidence Act has indeed covered the field in relation to admissibility of Evidence in Nigeria. It permits of no other legislation to do same and therefore any state legislation such as Section 7 (2) of the Criminal Procedure Law of Cross River State which provision conflicts with the Evidence Act on admissibility of evidence must to the extent of such, inconsistently be null and void of no effect. See MOSES BENJAMIN v. KALIO (2018) 15 NWLR (Pt. 1641).
Section 7(2) of the Criminal Procedure Law, Cross River State cannot stand against the rules of admissibility as provided for under the Evidence Act. PER OWOADE, J.C.A.

EVIDENCE: WHEN WILL A PIECE OF EVIDENCE CONTRADICT ANOTHER

Indeed, a piece of evidence contradicts another when it affirms the opposite of what other evidence has stated not when there is just a minor discrepancy between them as alleged in the instant case. See JIMMY v. STATE (2013) 18 NWLR (Pt. 1386) 229 SC; AL-MUSTAPHA v. STATE (2013) 17 NWLR (Pt. 1383) 350; EZE v. STATE (2013) 16 NWLR (Pt. 1380) 392; IREGU v. STATE (2013) 12 NWLR (Pt. 1367) 92.
In the case of BASIL AKPA v. STATE (2008) 34.2. NSCQR page. 1250 @ 1271 where the issue of two different dates came up as in the instant case, PW1 had stated that the offence of murder was committed on the 17th December, 1989 but Exhibit 3 tendered by the witness showed the offence was committed on the 3rd of November, 1989.
In delivering the lead judgment, NIKI Tobi, JSC stated:
A contradiction which is peripheral to the life issue or issues in the matter will not avail an accused person, such as the discrepancy in the two December dates. I therefore dismiss the issue raised by the learned counsel for the Appellant. (Page 1271, paragraph F) PER OWOADE, J.C.A.

Before Our Lordships

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

JACKSON MICHEAL APPELANT(S)

And

THE STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court delivered by Ofem I. Ofem J on the 27th May, 2014.

Appellant was arraigned on a one count charge of the murder of one Ekpenyong Bassey Nyong on the 4th day of April, 2009 at No. 102 Jebs Road, Calabar South in the Calabar Judicial Division. The Appellant pleaded Not Guilty to the charge. At the trial, the prosecution called two witnesses and tendered Exhibits PW1. Patrick Bassey Nyong is a brother of the deceased. PW2, Inspector John Orohi is the IPO.

The case for the prosecution was/is that the Appellant stabbed the deceased to death at a night gathering.

The Appellant made confessional statements which were later retracted. Rather, at trial, the Appellant put up a defence of alibi. The learned trial judge relied on the Appellant’s retracted confessional statements in convicting him of the offence of murder after coming to the conclusion that the Appellant’s confessional statements are consistent with other evidence on record in accordance with the rule in R. V. SYKES 1913 21 CAR 1.

The learned trial judge also considered but rejected the defences of alibi and provocation as not available to the Appellant from the facts and circumstances of the case. He thereafter convicted the Appellant for the offence of murder.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing six (6) grounds of appeal in this Court on 16-7-2014. Appellant’s brief of Argument was filed on 6-11-2014, it was settled by NTA A. NTA. Respondent’s brief of Argument which was filed on 22-6-2020 was deemed filed on 8-9-2020, it was settled by TANKO ASHANG Esq., Hon. Attorney General of Cross River State.

Learned Counsel for the Appellant nominated five (5) issues for the determination of the appeal. They are:
(i) Whether or not the learned trial judge was right when he admitted Exhibits 3 and 4 which were purported confessional statements of the Appellant when the statements were not written in Efik the language the Appellant made them and interpreted into English? – GROUND 1.
(ii) Whether or not the learned trial judge lawfully received Exhibits 3 and 4 in evidence when the prosecution did not comply with

7 of the Criminal Procedure Law 2004 of Cross River State – GROUND 2.
(iii) Was it proper for the learned trial judge to explain the contradictions in the evidence of the prosecution when the prosecution led no evidence to explain the contradiction between the date of death in Exhibit 6 the medical report and the date the crime was alleged to have been committed as stated in the information? –GROUND 4 AND 5.
(iv) Whether or not the prosecution succeeded in proving essential ingredients of murder under Section 319 (1) of the Cross River State Criminal Code to justify the verdict of guilt entered by the lower Court against the appellant. –GROUND 6.
(v) Considering the state of evidence particularly the scrappy, unreliable terse, baseless and contradictory evidence led by the prosecution whether or not the prosecution has proved the guilt of the Appellant, thereby discharging the burden placed on it under our laws – GROUND 7.

Learned Attorney General for the Respondent adopted the issues nominated by the Appellant with slight variations as follows:
(i) Whether the learned trial judge was not right when he admitted

Exhibit 3 and 4 which Appellant objected to half-heartedly on the grounds that it was not made in English Language but Efik Language.
(ii) Whether the learned trial judge was not right in receiving Exhibits 3 and 4 in evidence despite the non-compliance with Section 7 (2) of the CPL, CRS.
(iii) Whether the learned trial judge was not right in admitting Exhibit 6 – medical report despite the slight discrepancy in the dates of the deceased death as found in the post mortem report and the information sheet.
(iv) Whether by the totality of the evidence adduced by the prosecution the learned trial judge was not right in finding the Appellant guilty of murder.

Learned counsel for Appellant separately argued his Issues i-iii but combined his arguments for Issues iv and v.

On Issue One, learned counsel for the Appellant pointed out that the Appellant testified as the only witness for the defence. That he did not call any witness. He said he was an illiterate fisherman and that he made his statement in Efik language. Counsel submitted that when the Appellant’s purported statements to the Police were sought to be tendered, the

Appellant’s counsel objected to them on the ground that the Appellant made his statements in Efik language since he did not understand English. This objection, said counsel was overruled and the statements were admitted as Exhibits 3 and 4.

Appellant’s counsel submitted that there is doubt as to whether what the Appellant told the Police was what they took down in writing since they were not interpreted and read out to the Appellant.

He submitted that when an illiterate like the Appellant makes a statement in Efik language, his statement must be taken down in Efik language. He submitted that the Appellant spoke in Efik throughout his trial and he told the Court that he made his statement in Efik but he does not know what the Police PW2 wrote down since the said statements were never read over to him in Efik, he does not know what the Police wrote down in English.

Appellant’s counsel submitted that the misgivings of the Appellant about the accuracy or otherwise of his confessional statements to the Police Exhibits 3 and 4 ought to have been looked into by the learned trial judge and findings made in respect of the

Appellant’s allegation that he did not know what the Police wrote down and claimed to be his statement to them.

On this, learned counsel for the Appellant referred us to the cases of OGOALA V. THE STATE (1991) 12 NWLR (Pt. 175) P. 509 @ 534; FRN V. USMAN & ANOR (2012) 3 MJSC Pt. 1 P. 25 @ PP 42-43 and ASINIOLA V. FATODU (2009) 6 NWLR (Pt.1336) P. 184 @ 198. He urged us to resolve the issue in the negative and hold that the statements said to be made by the Appellant Exhibits 3 and 4 should be expunged from the evidence as being wrongfully admitted by the trial Court.

In response to Issue No. 1, Learned Counsel for the Respondent submitted that when the prosecution sought to tender Exhibits 3 and 4 in evidence, the defence counsel objected to admissibility on grounds that the Appellant said he made his statement in Efik language therefore the statements sought to be tendered were not his having been written in English language. He submitted that in law, when the objection to the admissibility of a confessional statement is not that it was not voluntarily made but that the accused did not make same, it is taken as voluntarily made and

admissible though seen as a mere retraction. He referred to the case of NSOFOR v. STATE (2004) 20 NSCQR Page 74 @ 76 and added that having been admitted in evidence, the Court decides at the end of the case what weight to attach to it.

He submitted that the objection by the Appellant that he had made his statement in Efik language was not corroborated in any way. But that to the contrary;
a. The Appellant made his mark on both statements (presumption of regularity)
b. Appellant was taken before the Senior Police Officer who attested to his statement and he accepted it was correct, (presumption of regularity)
c. PW2 stated in his testimony on oath that he duly cautioned the Appellant before he made his statement and “He is not all that educated but he can speak English” and “he can’t read or write but he understands English Language. He communicated with me in English Language”, page 75 of the Records of Proceedings.
d. When asked under cross examination whether he told the Senior Police Officer that he did not understand English, Appellant answered that he was not asked by the SPO so he said nothing.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The contents of Exhibits 3 and 4 tally with the life history of the Appellant as he later disclosed while testifying on oath as well as corroborate the facts of the case as to cause of death of deceased.
f. The situation did not get any better because there was nothing to support such inference that accused statement was made in Efik language, for instance accused did not mention anyone acting as interpreter.

Respondent’s counsel submitted that the cases cited by the Appellant are not applicable to the facts and circumstances of this case as there was no evidence from the Appellant to actually prove that indeed he made his statement in Efik language to warrant the statement to become inadmissible for not calling an interpreter to testify in Court.

Appellant’s Issue No.1 brings to fore the need to explain at least three different situations relating to the taking of confessional statements from suspects or accused persons.
The first is the possibility of a challenge of voluntariness of a confessional statement (notwithstanding that it may be true) if it was obtained by “oppression” which includes torture, inhuman

or degrading treatment, and the use of threat of violence whether or not amounting to torture (S. 29, Evidence Act 2011).
In this situation, the Court will normally order a trial within trial as “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 was not obtained in any manner contrary to the provisions of Section 29 of the Evidence Act 2011.”
The second situation, as in the instant case is a denial of the statement “it is not my statement” now commonly referred to as a retraction of such statement. In that case, the position of the law is that the fact that an accused has denied making a confessional statement does not necessarily make it inadmissible. See NWAEBONYI v. THE STATE (1994) 5 SCNJ 86; EDET EKPE v. THE STATE (1994) 12 SCNJ 131; R. v. EBONG (1947) 12 WACA 1.
The third situation is typified by the cases cited by the learned counsel for the Appellant notably, the cases of FRN v. USMAN & ANOR (2012) 3 MJSC (Pt. 1) 25 @ PP 42 AND 43 and ASINIOLA v. FATODU (2009) 6 NWLR (Pt.1136) P.184 @ 198.

Those cases held that where a statement of an accused made in his local language was translated to English, the interpreter who assisted in interpreting the accused person’s local language to English language and vice versa must be called to give evidence in order to avoid a breach of the rule against hearsay evidence.

In the instant case, beyond the Appellant’s ipse dixit that he made his statement in Efik language, there was no proof rendered by the Appellant to support the said assertion.

In those circumstance, the learned trial judge was right indeed perfectly justified to have treated the Appellant’s confessional statements Exhibits 3 and 4 as retracted confessional statements. This is more so as apart from the fact that the Appellant thumb printed Exhibit 4 on 9-4-2009 in two places, that is for the second time as attested by a superior Police Officer ASP Joseph A. Inuyash, he (Appellant) indeed ended up at the trial by making a U-turn when he raised a defence of alibi.

In other words, as far as this case is concerned, there was no proof before the Court that the Appellant statements were written in Efik language

rather and contrary to the assertion by the learned counsel for the Appellant, the statement thumb printed by the Appellant were denied and or retracted by the Appellant who decided to set up another story at trial.

It is trite law that mere retraction of a voluntary confessional statement by an accused does not render such statement inadmissible or worthless and untrue in considering his guilt. See SILAS IKPO v. THE STATE (1996) 1 NILR 59 SC; IHUEBEKA v. STATE (2000) 4 SC (Pt. 1) 203; IDOWU V. STATE (2000) 7 SC (Pt. 11) 50.
In the instant case, the learned trial judge admitted the retracted statements of the Appellant in evidence and went further to highlight independent evidence (pages 107-110 of Record) which make it probable that the Appellant’s confession is true in accordance with the cases of KANU & ANOR v. KING (1988) 3 NWLR (Pt. 84) 615; STEPHEN v. STATE (1986) 5 NWLR (Pt. 46) 978; QUEEN v. ITULE (1961) 2 SCNLR 183; ONOCHIE & 7 ORS v. THE REPUBLIC (1966) NWLR 307; EDIGHERE v. STATE (1996) 8 NWLR (Pt. 460)1; EKPE v. THE STATE (1994) 9 NWLR (Pt. 308) 263; STANLEY EGBOHONOME v. THE STATE (1993) 7 NWLR(Pt. 306) 383 and

NWANGBOMU v. THE STATE (1994) 2 NWLR(Pt. 327) 380 amongst many other decided cases.
The learned trial judge was therefore right to have admitted Exhibits 3 and 4, the retracted confessional statements of the Appellant in evidence. Issue No. 1 is resolved against the Appellant.

In Issue No. 2, Learned Counsel for the Appellant submitted the admissibility of Exhibits 3 and 4, the Appellant’s confessional statements were in violation of the provisions of Section 7 of the Criminal Procedure Law of Cross River State in that “the making and taking of the said confessional statements were not recorded on video and no such recordings were produced at the trial.”

Appellant’s Counsel referred to the cases of KADA v. THE STATE (1991) 8 NWLR (Pt. 208) 134 @ 155; NWOKORO v. ONUMA (1990) 3 NWLR (Pt. 136) P. 22 @ 32; AKUNEZIRI v. OKENWA (2000) 15 NWLR (PT. 691) 526 @553 where the Courts have held that “the due observance of the strict rules of Criminal Procedure is the only safeguard against wrongful conviction…….” and also that “…..non-compliance renders the act or course of conduct devoid of legal effect……”

He urged us to resolve Issue No. 2 in favour of the Appellant and expunge Exhibits 3 and 4.

In response to Appellant’s Issue No. 2, Learned Counsel to the Respondents submitted that to the extent to which the Criminal Procedure Laws of Cross River State is inconsistent with the Evidence Act 2011 and the Criminal Procedure Act, it is void under the hierarchy of legislation. He referred to the provision of Section 2 of the Evidence Act 2011 to wit:
2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies. Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.

He submitted that the provisions of the Evidence Act are superior to any other enactment on the admissibility of evidence. He referred to the case of ATTORNEY GENERAL OF ABIA STATE v. ATTORNEY GENERAL OF THE FEDERATION (2003) 3 SCNJ 158 @208 and submitted

that when there is any conflict between the provisions of any such Act or legislation with the Evidence Act as it pertains to admissibility of evidence, the provision of the Evidence Act shall prevail under the doctrine of hierarchy of legislation.

He concluded that Section 7(2) of the Criminal Procedure Law, Cross River State is a state law directing on how evidence is to be taken from an accused person by the Police. Evidence, is an item under the Exclusive Legislative List. The state legislature has no power to legislate on evidence. The provision of Section 7 (2) of the Criminal Procedure Law, Cross River State is therefore ultra vires the power of the State House of Assembly and is therefore null and void.

The conclusion of the Learned Counsel for the Respondent on Issue No. 2 is indeed a good starting point for a decision on Issue No. 2.

hierarchy of legislation or a doctrine of covering the field the Evidence Act has indeed covered the field in relation to admissibility of Evidence in Nigeria. It permits of no other legislation to do same and therefore any state legislation such as Section 7 (2) of the Criminal Procedure Law of Cross River State which provision conflicts with the Evidence Act on admissibility of evidence must to the extent of such, inconsistently be null and void of no effect. See MOSES BENJAMIN v. KALIO (2018) 15 NWLR (Pt. 1641).
Section 7(2) of the Criminal Procedure Law, Cross River State cannot stand against the rules of admissibility as provided for under the Evidence Act. Thus, Exhibits 3 and 4 were rightly admitted in evidence by the learned trial judge in-spite of the provision of Section 7 (2) of the Criminal Procedure Law, Cross River State.
Issue No. 2 is resolved against the Appellant.

Learned Counsel for the Appellant submitted on Issue No. 3 that in the instant appeal, the prosecution has failed to prove that the Appellant actually killed the deceased on the 4th of April, 2009. He submitted that the information brought before the High Court of

Cross River State, Calabar, the Appellant was alleged to have killed one Ekpenyong Bassey Nyong on the 4th day of April, 2009. However, that subsequently, during the trial, the prosecution led evidence and tendered Exhibit 6, a post mortem report to the effect that the deceased body was taken to the hospital on the 3rd of April, 2009 and that the post mortem examination was conducted on the deceased body on the 3rd of April, 2009. That all the prosecution witnesses testified that the incident occurred on the 4th day of April 2009, contrary to the Exhibit 6, the post mortem report which stated categorically that the deceased body was received on the 3rd of April, 2009 and post mortem conducted on the said body.

He submitted that throughout the trial of the case, the prosecution and their witnesses did not make any attempt to explain how a man who had died on the 3rd day of April, 2009 was subsequently murdered by the Appellant again on the 4th day of April, 2009.

He opined that the contradiction in date which he considered material could have been resolved in favour of the Appellant. He referred on this to the cases of FELIX NWOSU v. THE STATE (1986)

4 NWLR (Pt. 35) P. 348 @ 354 and STATE v. AJIE (2000) 11 NWLR (Pt. 678) 343 @ 449 both of which frowned on “…..two different and irreconcilable conflicting accounts of the same situation”.
He urged us to resolve Issue No.3 in favour of the Appellant.

Learned Counsel for the Respondent submitted on Issue No. 3 that the deceased was taken to the hospital at midnight of the 3rd breaking into the 4th April, 2009. That the difference between the hours are minimal and does not go to the root of the issue.

He submitted that the learned trial judge in line with the law stated on page 102 of the Records thus:
Once it is overwhelmingly shown that the deceased died, as in this case, it is immaterial whether or not there is a discrepancy in date as highlighted above… It is my respectful view that a piece of evidence contradicts another when it affirms the opposite of what other evidence has stated not when there is just a minor discrepancy between them.

Learned Counsel for the Respondent added relying on the case of BASIL AKPA v. STATE (2008) 34.2NSCQR page 1250 @ 1271 that it is not a contradiction but a

minor discrepancy which does not go to the root of the issue.

He concluded that the discrepancy between the dates 3rd April, 2009 and 4th April, 2009 between Exhibit 6 and the Appellant’s charge sheet is minor and immaterial, could not affect the credibility of Exhibit 6 or the case of the Respondent prosecution.

In deciding Issue No.3, I totally agree with the learned Counsel for the Respondent that the differences in dates between Exhibit 6 the post mortem report which stated 3rd April, 2009 to be the date of death and the witnesses for the prosecution and/or the information sheet which stated 4th April, 2009 as the date the deceased died is a minor discrepancy and by no means a material contradiction.
Indeed, a piece of evidence contradicts another when it affirms the opposite of what other evidence has stated not when there is just a minor discrepancy between them as alleged in the instant case. See JIMMY v. STATE (2013) 18 NWLR (Pt. 1386) 229 SC; AL-MUSTAPHA v. STATE (2013) 17 NWLR (Pt. 1383) 350; EZE v. STATE (2013) 16 NWLR (Pt. 1380) 392; IREGU v. STATE (2013) 12 NWLR (Pt. 1367) 92.
In the case of BASIL AKPA v. STATE (2008)

34.2. NSCQR page. 1250 @ 1271 where the issue of two different dates came up as in the instant case, PW1 had stated that the offence of murder was committed on the 17th December, 1989 but Exhibit 3 tendered by the witness showed the offence was committed on the 3rd of November, 1989.
In delivering the lead judgment, NIKI Tobi, JSC stated:
A contradiction which is peripheral to the life issue or issues in the matter will not avail an accused person, such as the discrepancy in the two December dates. I therefore dismiss the issue raised by the learned counsel for the Appellant. (Page 1271, paragraph F)
In the instant case, the learned trial judge was right relying on the case of AGBO v. THE STATE (2006) 1 S.C (Pt. 4) 73 to have held on page 103 of the Record of Appeal that the prosecution witnesses and the accused knew unequivocally that deceased died. And that the inconsistency in the two dates is not a material fact of the death of the deceased and therefore not substantial enough to disparage the evidence of PW5 (sic) PW2 and Exhibit 6 to the extent that reliance on such testimony would likely result in a miscarriage of justice. It does not

fundamentally affect the main issue or material point before the Court that the deceased died.
Issue No. 3 is resolved against the Appellant.

Learned Counsel for the Appellant argued his issues IV and V together as follows:
First Learned Counsel for the Appellant reiterated the ingredients of the offence of murder through the cases of OGBA v. STATE (1992) 2 NWLR (Pt. 222)164; AKINFE v. STATE (1988) 3 NWLR (Pt. 85) 729; AKPAN v. STATE (1994) 9 NWLR (Pt. 368) 347; GIRA v. STATE (1996) 4 NWLR (Pt. 443) 375. He also reminded us relying on the provision of S.138 of the Evidence Act and the cases of OKEKE v. STATE (2003) 15 NWLR (Pt. 842) 25 and WAZIRI v. STATE (1997)3 NWLR (Pt. 496) 689 that the prosecution has the legal burden of proving the guilt of an accused person beyond reasonable doubt. And, also that in a murder case, for the prosecution to prove its case… it must produce evidence that the victim of the offence not only died but also that it was the act of the accused person that caused that death.

On this, he referred to the case of EMWENYA v. A.G BENDEL (1993) 6 NWLR (Pt. 297) 29 @ 36. Learned Counsel for the

Appellant submitted rather curiously that there was no shred of evidence led by the prosecution to show that the said Ekpenyong Bassey Nyong is even dead. He reasoned that neither PW1 who claimed to have arrived the scene of the incident immediately as well as PW2 who claimed to have investigated the case gave evidence that they saw who killed Ekpenyong Bassey Nyong.

Appellant’s Counsel repeated his earlier submission in Issue No. 3 on the differences between the date of death in Exhibit 6, the post mortem report and the information charge sheet.

He submitted that even if it is held that the deceased is dead, there is no positive or credible evidence led by the prosecution linking the Appellant with the deceased’s death. He concluded on Issues 4 and 5 that the prosecution on whom the onus of proving guilt of the Appellant beyond reasonable doubt lies, has failed to prove any of the fundamental elements constituting the proof of murder.

Learned Counsel for the Respondent reacted to the Appellant’s issues IV and V in his issue No. IV.

As it was the case with the Appellant, Respondent’s Counsel also reiterated the three

vital ingredients of the offence of murder through the cases of MICHAEL v. STATE (2008) 34.2 NSCQR page 700 @ 705 and GARBA v. STATE (2000) 77 LRCN 1126 @ 1138. He (Respondent’s Counsel) reminded us that in criminal trials, the guilt of an accused person can be established by any or all of the following (a) confessional statement of the accused, (b) circumstantial evidence, (c) evidence of an eye witness. On this, he referred to the cases of STATE v. USMAN ISAH (2013) 8 NCC page 320 @ 325; IGABELE v. STATE (2006) 5 MJSC 96 @ 100.

He submitted that the Appellant’s confessional statements and the evidence of the surrounding circumstances pointed to the Appellant and no other person as the person who stabbed the deceased and caused his death.

He submitted that in deciding the weight to be attached to Exhibits 3 and 4, the Appellant’s confessional statements, the learned trial judge applied the principle in DAWA v. STATE (1980) 8-11 SC 236 @ 267-268 and rightly found that outside the confessional statements of the Appellant, Exhibit 6, the post mortem report is also consistent with the testimonies of the witnesses all corroborating Exhibits 3 and 4.

Learned Counsel for the Respondent referred first to the dictum of Oputa JSC in the case of OTEKI v. STATE (1986) ANLR 371 @ 392 that “where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief”. He added that in the instant case, where the Appellant’s testimony on oath is not consistent with the surrounding circumstances, it induces unbelief.

He referred to the cases of GABRIEL v. STATE (2011) 6 NCC page 249 @ 255; ADEKOYA v. STATE (2012) 7 NCC page 1 @ 6 and submitted that the absence of an eye witness account does not render prosecution’s case weak as the confessional statement of accused alone is enough to ground his conviction so long as the Court is satisfied with the truth of the confession. He concluded that in the instant case, the evidence of PW1 and PW2 corroborates the Appellant’s confessional statements.

First, I will adopt my decisions on Issues Nos. 1, 2 and 3 in the resolution of Appellant’s Issues Nos. 4 and 5.

The learned trial judge in the instant case placed reliance on the

Appellant’s retracted confessional statements in convicting the Appellant of the offence of murder. However, in doing so, the learned trial judge also placed reliance on the evidence of surrounding circumstances which made the Appellant’s confessional statements probable and became satisfied of the truth of the confession as it was freely made, direct, and positive.

The Courts have held that conviction for any crime may be based on a single confession if voluntarily made. See GIRA v. THE STATE (1996) 4 SVNJ 94 and it is trite law that mere retraction of a voluntary confessional statement by an accused person does not render such a statement inadmissible or worthless and untrue considering his guilt. See SILAS IKPO v. THE STATE (1996) 1 NILR 59 SC; IHUEBEKA v. STATE (2000) 4 SC (Pt. 1) 203; IDOWU v. STATE (2000) 7 SC (Pt. 11) 50.

In the instant case, the prosecution succeeded in proving the essential ingredients of murder under Section 319 (1) of the Cross River State Criminal Code against the Appellant.
Issues Nos. 4 and 5 are resolved against the Appellants.

Having resolved the five (5) issues in this appeal against the

Appellants, the appeal lacks merit and it is accordingly dismissed. The judgment, conviction and sentence of the Appellant by the Hon. Justice Ofem I. Ofem of the High Court of Cross River State sitting in Calabar in charge No. HC/16C1 2012 are hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my Learned brother, MOJEED ADEKUNLE OWOADE J.C.A was made available to me in draft.

I agree with the reasoning and conclusion reached therein. I also agree that the appeal be dismissed for want of merit.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, Mojeed A. Owoade, J.C.A just delivered and I agree with the reasoning and conclusion arrived therein.

In addition, let me state categorically that failure to record a confessional statement in a video will not affect the admissibility of the said confessional statement. On matters of admissibility, it is the Evidence Act not any other law that the Court shall look at. Thus Section 7 of the Criminal Procedure Law of Cross River State is not and cannot be the guiding legislation for the

admissibility of Exhibits 3 and 4, the appellant’s confessional statements. The fact still remains that Evidence Act being a specific Act on Evidence; it takes precedence over other laws, the Criminal Procedure law of Cross River State inclusive. This appeal is unmeritorious and it is accordingly dismissed. The judgment of the lower Court s hereby affirmed.

Appearances:

NTA A. NTA, ESQ. For Appellant(s)

TANKO ASHANG ESQ. (Attorney General of Cross River State) For Respondent(s