MOSES ITA OBOT v. THE STATE
(2018)LCN/11951(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/C/285C/2016
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“Evaluation of evidence has to do with forming an opinion of the amount, value, or quality of evidence after considering such evidence carefully. See Galinjie JCA (as he then was) in ROBERT & ORS. VS. OLALEYE & ORS. (2010) LPELR-4901 (CA). This entails the consideration of every evidence the Court received and has a duty to consider as regard the issue before it. It is the norm that evaluation is not just putting evidence together or making a summation of the evidence. It requires a thorough appraisal and assessment of the evidence that will logically result in a conclusion of the law involved or an inference of the fact in the case. Evaluation of evidence is the main duty of a trial Court who has the first contact with the evidence put together with the parties for the proof of their assertions. In the case of AYORINDE & ORS. VS. SOGUNRO & ORS. (2012) 11 NWLR (PT. 1312) 460, the Supreme Court per Rhodes-Vivour, JSC held: ”Evaluation of evidence comes in two forms: (a) Findings of fact based on the credibility of witnesses, and (b) Findings based on evaluation of evidence. In (a) an Appeal Court should be slow to differ the trial Judge. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded some respect. But in (b) an Appeal Court is in as good a position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial Judge should be accorded much weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation’.” PER STEPHEN JONAH ADAH, J.C.A.
EVIDENCE: THE IMPORTANCE WITNESS TESTIMONY
“In fact, what a Court must consider as an abiding fact is the truthfulness of the witness touching on his integrity, veracity and knowledge on the fact. It is important that the witness’s testimony is cogent enough to rule out the possibility of falsehood and bias. See the cases of UDE VS. THE STATE (2016) LPELR-40441 (SC), ALI VS. THE STATE (2015) LPELR-24711 (SC); OBIDIKE VS. THE STATE (2014) LPELR-22590 (SC); and NKEBISI & ANOR. VS. THE STATE (2010) LPELR-2046 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
MOSES ITA OBOT Appellant(s)
AND
THE STATE Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgmennt):
This appeal is against the judgment of the Akwa Ibom State High Court, Etinan Judicial Division delivered on 21st day of March, 2016 in Charge No. HET/18C/2010, by I. E. Umanah, J.
The facts of the case are that on 8th day of January, 2010 at Obot Etok Village in Nsit Ibom Local Government Area, Akwa Ibom State, one Jeremiah Emmanuel Obot was killed at his residence. The allegation was that he was killed by the Appellant. The Appellant was on 7th day of November, 2012 arraigned before the Court below on a one count charge of murder contrary to Section 326(1) of the Criminal Code, Cap 38, Vol. II, Laws of Akwa Ibom State of Nigeria.
The Respondent at the trial Court called a total of four (4) witnesses and tendered a total of six (6) Exhibits. The Appellant solely testified himself and called no other witness.
At the end of the trial, the Court below convicted the Appellant and sentenced him to death by hanging.
The Appellant filed this appeal against his conviction and sentence by his notice of appeal filed on 15th June, 2016. The record of appeal was transmitted.
The record of appeal was transmitted on 14th of September, 2016 but deemed properly transmitted and served on 2nd November, 2017.
The Appellant’s brief of argument was filed on 15th December, 2017. The Respondent’s brief of argument was filed on 26th February, 2018 but deemed properly filed and served on 7th March, 2018. The Appellant’s reply brief was filed on 20th March, 2018.
The Appellant framed three (3) issues for determination. These three issues were framed as follows:
1. Whether the trial Court properly evaluated the evidence of PW1 before relying on same to convict and sentence the Appellant to death by hanging. (Distilled from ground 1 of the Notice of Appeal).
2. Whether the reliance on Exhibit D, retracted confessional statement of the Appellant by the learned trial Judge was proper in this case. (Distilled from ground 2 of the Notice of Appeal).
3. Whether there was a proper evaluation of the evidence of Appellant by the learned trial Judge. (Distilled from ground 3 of Notice of Appeal).
The Respondent in his brief distilled two (2) issues for determination. These two (2) issues are framed as follows:
1. Whether the prosecution had successfully proved the offence of murder, contrary to Section 326(1) of the Criminal Code, Cap 38, Vol. 2, Laws of Akwa Ibom State, 2000, against the Appellant.
2. Whether the defence of alibi raised by the Appellant was proper and whether same can avail him in the circumstance.
Having carefully looked at the grounds of appeal in this appeal, the issues distilled by the Appellant reflects more the complaint of the Appellant in this appeal than the two (2) issues raised by the Appellant. I shall therefore flag down the three (3) issues as distilled by the Appellant for consideration.
Of the three (3) issues filed, Issues 1 and 3 dealing with evaluation of evidence will be looked into together while Issue two will be taken solely.
ISSUES ONE AND THREE
These issues are whether the trial Court properly evaluated the evidence of the PW1 and that of the Appellant.
The learned Counsel for the Appellant prefaced his argument by submitting that where murder is in issue, the prosecution has the duty to prove beyond reasonable doubt the following three (3) elements viz:
a. That the death of a human being has occurred;
b. That the accused person caused the death of that human being;
c. That the accused intentionally caused the said death or had reason to know that death will be the likely and not the probable consequence of the act.
He relied on the cases of AHMED VS. THE STATE (2001) 18 NWLR (PT. 746) 622; ILIYASU VS. THE STATE (2015) 11 NWLR (PT. 1469) 26; NASIRU VS. THE STATE (2016) LPELR-41806 (CA). He canvassed that the evidence produced were wrongly evaluated by the Court below in coming to the conclusion that the Appellant should be hanged on the neck until he be dead.
The Appellant’s Counsel submitted further that evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it, has more preponderant evidence to sustain his claim in civil cases but that in criminal cases, it is proof beyond reasonable doubt that a Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined and that there must be a record how the Court arrived at its findings and conclusions in the case.
He relied on the cases of ALAKE VS. THE STATE (1992) 9 NWLR (PT. 265) 260 SC and YAHAYA VS. THE STATE (2016) LPELR-40254 (CA). The learned Counsel captured the statement of the trial Judge at pg. 163 of the record as follows:
On whether the accused person caused the injury from which the deceased died, the evidence of prosecution witnesses, particularly that of PW1 (the direct eye witness) are very helpful. The Exhibit D, the confessional statement of the accused person is also of paramount importance.
PW1’s testimony is a detailed eye witness account of how the accused person killed the deceased. This evidence of PW1 was not successfully shaken challenged or controverted under cross examination by the defence.
PW1 testimony corroborated Exhibit D3 wherein the accused person confessed to the crime and provided details of information personal to him and leading to his killing of the deceased and how he carried out the killing.
He contended that the re-statement of the evidence given by the witnesses is not evaluation. He relied on the cases of ALAKE VS. THE STATE (1992) 9 NWLR (PT. 265) 260; UKPE VS. THE STATE (2002) FWLR (PT. 103) 416; ARCHIBONG VS. THE STATE (2006) 14 NWLR (PT. 1000) 349 and BOZIN VS. THE STATE (1985) 2 NSCC 1087.
The learned Counsel for the Appellant canvassed that the evidence for the 1st PW need to be corroborated and treated with caution because the evidence is not probable and does not accord with commonsense. He relied further on the cases of WAKALA VS. THE STATE (1991) 8 NWLR (PT. 211) 565; MBENU & ORS. VS. THE STATE (1988) 7 SCNJ 211; ADEKUNLE VS. THE STATE (1989) 5 NWLR (PT. 123) 505 and ADISA VS. THE STATE (2013) LPELR-20684.
On issue 2, the learned Counsel for the Appellant canvassed that Exhibit D from the records which is the statement of the accused person made on 13th January, 2010 is a retracted confessional statement. He said it was rightly admitted by the Court below but that before the Court could rely on it, the Court must take into consideration several other facts like corroboration of the said statement. That there was no indication that the Court below treated Exhibit D as a retracted statement.
That the Court was in error by finding that Exhibit D was corroborated by PW1. He relied on the case of IGBINE VS. THE STATE (1997) 9 NWLR (PT. 519), 101, 109. He urged the Court to resolve the issues in favour of the Appellant.
The Respondent on these issues contended that the prosecution had successfully proved the ingredients of the offence of murder against the Appellant before the Lower Court. He relied on the cases of ADEYEYE VS. THE STATE (2013) 53 NSCQR 521. That the PW1 gave an eye witness account and that it was in criminal trial the best available evidence. He relied on the case of SHURUMO VS. THE STATE (2011) VOL. 196 LRCN 199 @ 208. He canvassed that the appellant complaining of improper evaluation of evidence supposed to identify the evidence improperly evaluated and that none was specified. He relied on the case of NKEBISI VS. THE STATE (2010) 5 NWLR (PT. 1188) 471, 478. He canvassed further that there is no law that precludes a blood relation of a deceased person from testifying for the persecution. He further relied on the case of RASHEED OLAIYA VS. THE STATE (2010) 1 KLR (PT. 276) 357, 359. That the Court was right to convict the Appellant even on the evidence of the PW1 alone.
Evaluation of evidence has to do with forming an opinion of the amount, value, or quality of evidence after considering such evidence carefully. See Galinjie JCA (as he then was) in ROBERT & ORS. VS. OLALEYE & ORS. (2010) LPELR-4901 (CA). This entails the consideration of every evidence the Court received and has a duty to consider as regard the issue before it. It is the norm that evaluation is not just putting evidence together or making a summation of the evidence. It requires a thorough appraisal and assessment of the evidence that will logically result in a conclusion of the law involved or an inference of the fact in the case. Evaluation of evidence is the main duty of a trial Court who has the first contact with the evidence put together with the parties for the proof of their assertions. In the case of AYORINDE & ORS. VS. SOGUNRO & ORS. (2012) 11 NWLR (PT. 1312) 460, the Supreme Court per Rhodes-Vivour, JSC held: ”Evaluation of evidence comes in two forms: (a) Findings of fact based on the credibility of witnesses, and (b) Findings based on evaluation of evidence. In (a) an Appeal Court should be slow to differ the trial Judge. After all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded some respect. But in (b) an Appeal Court is in as good a position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial Judge should be accorded much weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation”.
The job of evaluation of evidence if thoroughly done by the trial Court should not be lightly treated on appeal. The only instance that an appellate Court can legitimately intervene in such an exercise of evaluation as carried out by the trial Court is if it is done without basis and in defiance of the law and the credible facts put before the Court. In the instant case, the Appellant raised issues of improper evaluation of evidence. The specifics of such improper evaluation were not firmly given other than the assertion that the evidence of the 1st PW needs corroboration. The question is firstly who is the 1st PW?
The 1st PW in the instant case is one Grace Emmanuel Jeremiah Obot who is the wife of deceased Jeremiah Emmanuel Obot. This witness gave evidence as an eye witness and the Court below accepted her evidence as credible. The law is settled that the best form of evidence is where the eye witness is direct and the evidence gives an on the spot narration of the event as it happened. See AKINLOLU VS. THE STATE (2015) LPELR-25986 (SC) and ANSELEM AGU VS. THE STATE (2017) LPELR-41664 (SC).
The 1st PW at page 94 of the record of appeal testified as follows:
My name is Grace Emmanuel Jeremiah Obot. I live at Obo Etok Village in Nsit Ibom Local Government Area. I am a farmer. I know the accused person standing in the dock. I know the said Jeremiah Obot, he was my husband and an uncle to the accused person. The said Jeremiah Emmanuel Obot is dead.
On 8th January 2010, I was in my house reading my Bible in the evening. In that evening I saw the accused person with his sister. The accused person asked me about my husband.
I told him that my husband is in the church reading and praying. The accused person said my husband is not there as the doors of the church are locked. I then said to the accused person that may be he is in the bathroom as he earlier informed me that when he returned from the church he will be taking his bath.
The sister that came with the accused person was pleading with accused person did not know why she was pleading with accused person I thought they were fighting that?s why he came to see the uncle. The accused person later used his legs to hit the corridor door and forcefully opened same and went in through the corridor to the backyard.
After he entered the corridor, I suspended what I did and followed him behind to know what was happening.
On getting to the backyard, I saw my husband coming out from the bathroom with a bucket.
The accused person kick him and jacked him up and threw him on the ground, he removed the knife which he came with and cut by the neck.
When I saw the incident, I screamed and shouted at to know what happened that he cut his uncle by the neck. The accused person turned to me and him me on the chest and said that I was a walking corpse. And that two are remaining for him to kill. He then picked a broken spade and used it to further cut my husband neck.
On seeing this I shouted and ran into the bush naked. While in the bush I saw the accused person running out of our compound boasting that he has accomplished his mission and that it remains two persons to kill.
The Court below after giving due consideration to all the evidence adduced by the parties concluded thus:
On a careful consideration of the totality of the evidence before me, I have come to the irresistible conclusion, that the accused person murdered the deceased in cold blood. I find as a fact that Jeremiah Emmanuel Obot (m) is dead and that he died from the injuries caused him by the intentional and voluntary act of the accused person of using a knife to cut the throat of the deceased having jacked up the deceased and threw him and further used a broken spade to further cut the deceased neck. What a dastard act! This is indeed sad, cruel some and unfortunate.
Finally, on the totality of my foregoing findings, I hold that the prosecution has discharged the burden of proof beyond reasonable doubt and has established a case of murder against the accused person.
In the circumstance, I find the accused person guilty of the murder of Jeremiah Emmanuel Obot (m) and I hereby convict him accordingly.
The Respondent’s submission is for the prosecution to prove or establish the guilt of an accused person beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. The proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means deploying compelling and conclusive evidence to establish the guilt of the accused person with a high degree of probability. AKINLOLU VS. THE STATE (2015) LPELR-25986 (SC); NWATURUOCHA VS. THE STATE (2017) LPELR-42362 (SC) and SMART VS. THE STATE (2016) LPELR-40827 (SC). In the instant case the trial Court took the evidence of the witnesses and found that the Appellant was the person who killed the deceased Jeremiah Emmanuel Obot. The Appellant was of the opinion that the evidence of the 1st PW needs corroboration because she is a family member of the deceased family.
The law is not that a family member of the family of a victim should not testify to give evidence of what she witnessed, the law requires that such a family member can testify if the evidence is credible and that she is not a tainted witness. In fact, what a Court must consider as an abiding fact is the truthfulness of the witness touching on his integrity, veracity and knowledge on the fact. It is important that the witness’s testimony is cogent enough to rule out the possibility of falsehood and bias. See the cases of UDE VS. THE STATE (2016) LPELR-40441 (SC), ALI VS. THE STATE (2015) LPELR-24711 (SC); OBIDIKE VS. THE STATE (2014) LPELR-22590 (SC); and NKEBISI & ANOR. VS. THE STATE (2010) LPELR-2046 (SC).
Since the testimony of the 1st PW is not the testimony disallowed by law and the Appellant cannot in any way justify her being tainted, there is nothing wrong with the trial Court relying of the testimony to convict the Appellant. In fact before the Appellant can place any demand on corroboration of the evidence of the PW1, he must justify that the testimony of the PW1 was such as required such corroboration. This, he could successfully achieve if he was able to establish that the PW1 is an accomplice or directly involved in the offence for which the Appellant was convicted. This has not been achieved in this case. It follows therefore that the testimony of the PW1 does not require any corroboration. I have taken time to go through the evidence of the PW1 as captured at pages 90 – 91 of the record of appeal. There is nothing to suggest from the testimony that the PW1 had any interest to serve other than giving a blow by blow account of how the Appellant killed her deceased husband, Mr. Jeremiah Emmanuel Obot. The learned trial Judge evaluated the testimony of the PW1 and that of the other witnesses including that of the Appellant before he came to the ultimate conclusion convicting the Appellant.
In the case of CHUKWUNYERE VS. THE STATE (2018) 9 NWLR (PT. 1624) 249, the Supreme Court per Okoro, JSC held that:
In a charge of murder contrary to Section 319 of the Criminal Code, the prosecution is under a duty to establish or prove the following ingredients of the offence beyond reasonable doubt before an accused can be convicted. They are:
(a) That the deceased has died;
(b) That the death of the deceased resulted from the act of the accused person;
(c) That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence of his act.
To be able to establish the three ingredients of the charge of murder stated above, the prosecution’s evidence may flow from any of the following ways:
i. The confessional statement of the accused which has been duly tested, proved and admitted in evidence;
ii. By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person, committed the offence charged;
iii. By direct evidence of eye witnesses who actually saw the accused committing the offence.
In the instant case, the prosecution proved the charge against the Appellant through direct evidence from witnesses who saw the Appellant commit the offence. (OKEREKE VS. THE STATE (2016) 5 NWLR (PT. 1504) 69; AKINLOLU VS. THE STATE (2015) 2 NWLR (PT. 1497) 503; OGEDENGBE VS. THE STATE (2014) 12 NWLR (PT. 1421) 338; OGBA VS. THE STATE (1992) 2 NWLR (PT. 222) 164; AKINFE VS. THE STATE (1988) 3 NWLR (PT. 85) 729; ONAH VS. THE STATE (1985) 3 NWLR (PT. 12) 236; GABRIEL VS. THE STATE (1989) 5 NWLR (PT. 122) 457).
In the instant case, the PW1’s evidence as an eye witness is so clean and clear that the offence was committed by the Appellant. It is therefore my view that the finding of the Court below on the guilt of the Appellant is unassailable. The Court below did not omit to evaluate the evidence of the PW1 and the Appellant in this case. Thus, Issues one and three are hereby resolved in favour of the Respondent.
ISSUE TWO
This issue is on whether the reliance of Exhibit D, retracted confessional statement of the Appellant by the learned trial Judge was proper.
The Appellant in his brief referred to page 118 of the record where the Court admitted Exhibit D. Exhibit D is the extra judicial statement of the Appellant as made to the police in Uyo on the 13th day of January, 2010. The issue here is the assertion that the Appellant retracted his statement admitted as Exhibit D. He did not anywhere mention that statement was involuntarily extracted from him. The law is very well settled that a Court can convict on the retracted confessional statement of an accused. In the latest case THE STATE VS. MASIGA (2018) 8 NWLR (PT. 1622) 383 the Supreme Court held that the retraction of the confessional statement by an accused person in his oral testimony in Court during trial is of no moment.
That the most important thing is that the Court must be satisfied as to the truth of the confession and must look for same corroborative evidence no matter how slight to boost the strength of the said retracted confession before relying on it to convict an accused person. The Supreme Court in the said THE STATE VS. MASIGA (supra) laid down the test as follows:
A Court can convict on the retracted confessional statement of an accused person, but before this is properly done the trial Judge should evaluate the confession and testimony of the accused person, which is different from his retracted confession and then ask himself the following questions:
(a) Is there anything outside 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? OGUDO VS. THE STATE (2011) 8 NWLR (PT. 1278) 1; KANU VS. KING (1952) 14 WACA 30; MBENU VS. THE STATE (1988) 3 NWLR (PT. 84) 615; STEPHEN VS. THE STATE (1986) 5 NWLR (PT. 46) 978, relied upon (pp. 400 ? 401 paras. G-C).
In the instant case, the learned trial Judge evaluated and considered the retracted statement of the Appellant and saw corroboration in the testimony of the PW1. The said retracted statement is not the only available evidence. The evidence of the PW1, the eye witness was considered along with the statement of the Appellant to convict the Appellant. The lower Court was therefore absolutely right and I believe firmly that proper evaluation was given in this case before the Appellant was found guilty. From this consideration therefore, it is obvious that the lower Court was right in relying on the statement of the Appellant Exhibit D in the instant case. I hold therefore that this Issue Two be and it is hereby resolved in favour of the Respondent.
In conclusion therefore, this appeal is completely devoid of merit. The appeal is hereby dismissed. The conviction and sentence of the Appellant by the Court below in Charge No. HET/18C/20l0 on 21st of March, 2016 are hereby affirmed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with Adah, JCA’s reasoning contained in the judgment Just delivered, to the effect that the instant appeal is devoid of merits. Thus, I too hereby dismiss the appeal and affirm the conviction and sentence passed by the Akwa Ibom State High Court in its judgment delivered by I. E. Umanah, J; on March 21, 2016 in charge No. HET/18C/2010.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
Appearances:
T.J. Krukrubo, Esq.For Appellant(s)
Ime Umofiah, Esq., ACSC, MOJ, Akwa Ibom StateFor Respondent(s)
